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RTC COMMER. ASSETS TRUST 1995-NP3-1 v. PHOENIX BON

October 11, 1996

RTC COMMERCIAL ASSETS TRUST 1995-NP3-1, a Delaware business trust, Plaintiff,
v.
PHOENIX BOND & INDEMNITY COMPANY, COOK COUNTY ex rel., THOMAS C. HYNES in his capacity as the County Assessor, EDWARD J. ROSEWELL in his capacity as the County Treasurer and the County Collector, and DAVID ORR in his capacity as the County Clerk, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff RTC Commercial Assets Trust 1995-NP3-1 has brought a four count complaint for declaratory relief against defendants Phoenix Bond & Indemnity Company ("Phoenix") and Thomas C. Hynes in his official capacity as Cook County Assessor, Edward J. Rosewell in his capacity as County Treasurer and County Collector, and David Orr as County Clerk (the "County Defendants"). Specifically, plaintiff asks the court to declare invalid certain tax liens placed by defendants against property owned by plaintiff pursuant to an assignment from the Resolution Trust Company ("RTC"). The County Defendants have moved to dismiss for lack of subject matter jurisdiction, arguing that the Tax Injunction Act, 28 U.S.C. § 1341, prohibits this court from granting the requested relief. Phoenix has also moved to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), asserting that the complaint fails to state a claim for which relief can be granted. For the reasons set forth below, the court concludes that the complaint fails to allege federal jurisdiction adequately. Because plaintiff may be able to plead other grounds for subject matter jurisdiction, the complaint is dismissed without prejudice.

 FACTS

 According to the complaint, plaintiff is a Delaware business trust qualified to do business in Illinois, which holds a collateral assignment of 100% of the beneficial interest ("CABI") in a land trust as security for repayment of a loan to 185 North Wabash Partnership of approximately $ 904,000.00. The land trust holds an undivided one-half leasehold interest in two of six adjacent parcels of land which together have the common address of 185 North Wabash Avenue, Chicago, Illinois (the "Property"). Plaintiff also holds a leasehold mortgage encumbering all six parcels as security for repayment of a loan of $ 15,000,000. The CABI and mortgage were originally held by Trans Ohio Federal Savings Bank. On July 20, 1992, Trans Ohio was seized by the RTC, which was appointed receiver. As receiver, RTC succeeded to all of Trans Ohio's rights in and to the Property and loans. On October 24, 1995, the CABI and mortgage were assigned to plaintiff by the RTC as receiver.

 Phoenix is alleged to be "an entity qualified to do business in Illinois which maintains offices and/or conducts business in Cook County, Illinois." The complaint does not allege Phoenix's state of incorporation or its principal place of business. On or about March 1, 1995, Phoenix purchased a tax certificate at a Cook County tax sale representing the 1993 real estate taxes on a portion of the Property. Phoenix subsequently purchased certificates representing the second installment of the 1991 real estate taxes, all of the 1992 real estate taxes, and the first installment of the 1994 real estate taxes.

 DISCUSSION

 In its complaint, plaintiff alleges that this court has subject matter jurisdiction pursuant to 12 U.S.C. § 1825(b), which was enacted as part of the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA"). Section 1825 is entitled "Exemption from Taxation; Limitations on Borrowing." Specifically, Section 1825(b) provides:

 
(1) The Corporation including its franchise, its capital, reserves, and surplus, and its income, shall be exempt from all taxation imposed by any State, county municipality, or local taxing authority, except that any real property of the Corporation shall be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed, except that, notwithstanding the failure of any person to challenge an assessment under State law of such property's value, such value, and the tax thereon, shall be determined as of the period for which such tax is imposed.
 
(2) No property of the Corporation shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Corporation, nor shall any involuntary lien attach to the property of the Corporation.
 
(3) The Corporation shall not be liable for any amounts in the nature of penalties or fines, including those arising from the failure of any person to pay any real property, personal property, probate, or recording tax or any recording or filing fees when due.

 As is readily apparent, section 1825(b) contains no specific jurisdictional clause. The RTC does have, however, a statutory right to bring suit in federal court pursuant to 12 U.S.C. § 1441a(a)(11), which provides:

 
Notwithstanding any other provision of law, any civil action, suit, or proceeding to which the [RTC] is a party shall be deemed to arise under the laws of the United States, and the United States District Court shall have original jurisdiction. The [RTC] may, without bond or security, remove any such action, suit, or proceeding from a state court to a United States district court or to the United States District Court for the District of Columbia.

 RTC is obviously not a party to this lawsuit. The issue thus becomes whether, in assigning its rights to delinquent notes to private investors such as plaintiff, RTC can also assign its right to sue in federal court. If it can, it is only through an extension of the reasoning of the doctrine (discussed below) first announced in D'Oench Duhme & Co. v. FDIC, 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. ...


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