Gen Financial Svc v. Thompson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-31272 _______________

GENERAL FINANCIAL SERVICES, INC.,

Plaintiff- Counter Claimant- Appellant,

VERSUS

JIMMY C. THOMPSON, ET AL.,

Defendants,

NORTH AMERICAN CONSTRUCTORS, INC.,

Counter Defendant- Appellee.

_________________________

NORTH AMERICAN CONSTRUCTORS, INC.,

Plaintiff- Counter Defendant- Appellee,

VERSUS

GENERAL FINANCIAL SERVICES, INC.,

Defendant- Counter Claimant- Appellant.

_________________________

Appeal from the United States District Court for the Middle District of Louisiana (98-CV-416) _________________________ June 4, 2001

Before SMITH, DUHÉ, and WIENER, Financial Institutions Reform, Recovery, and Circuit Judges. Enforcement Act of 1989 (“FIRREA”), codified in pertinent part at 12 U.S.C. §§ PER CURIAM:* 1821(d)(13)(C) and 1825(b),2 exempt the

General Financial Services, Inc. 2 (“General”), appeals a summary judgment Section 1821(d)(13)(C) states that, when the declaring two mortgages held by North FDIC is acting as receiver, “[n]o attachment or American Constructors, Inc. (“Constructors”) execution may issue by any court upon assets in superior to those assigned to General by the the possession of the receiver”; § 1825(b) provides: Federal Deposit Insurance Corporation (“FDIC”). It is undisputed that General’s When acting as a receiver, the following provisions shall apply with respect to the mortgages were originally registered before Corporation: Constructors’s; in light, however, of the FDIC’s failure timely to reinscribe the (1) The Corporation including its mortgages under LA. CIV. CODE ANN. art. franchise, its capital, reserves, and 3369,1 the court properly found that Louisiana surplus, and its income, shall be law effected a re-ranking of the mortgages. exempt from all taxation imposed by See Alexander, 621 So. 2d at 31. any State, county, municipality, or local taxing authority, except that any General argues that provisions of the 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 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be real property is taxed, except that, published and is not precedent except under the notwithstanding the failure of any limited circumstances set forth in 5TH CIR. R. person to challenge an assessment 47.5.4. under State law of such property's value, such value, and the tax thereon, 1 Article 3369 was repealed in 1992. Because shall be determined as of the period for it was in force at the time General’s mortgages which such tax is imposed. were originally registered, however, it governs the reinscription requirements. Sec. Nat’l Trust v. Al- (2) No property of the Corporation shall exander, 621 So. 2d 30, 31 (La. App. 2d Cir.), be subject to levy, attachment, writ denied, 629 So. 2d 30 (La. 1993). (continued...)

FDICSSand General, as its assigneeSSfrom Louisiana’s reinscription requirements and thus prohibit Louisiana from re-ranking the mortgages. As this court recently stated, however, § 1825(b) does not exempt the FDIC from Louisiana’s reinscription requirements:

FIRREA does not preclude the application of Louisiana reinscription law to the FDIC’s property. Nothing in FIRREA prevents Louisiana law from recognizing either the FDIC's obligation to reinscribe mortgages or the loss of ranking suffered by the FDIC if it fails to meet this obligation.

FDIC v. McFarland, 243 F.3d 876, 886 (5th Cir. 2001). Moreover, even assuming § 1821- (d)(13)(C) protects the FDIC from Louisiana’s requirements, “no authority supports the pro- position that section 1821(d)(13)(C) creates assignable rights.” Id. at 887 n.42.

We find no basis for distinguishing McFar- land. The judgment is AFFIRMED.

2 (...continued) 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.