Successfully negotiated a comprehensive settlement of litigation claims asserted by a 104 unit residential association in an Avon, Colorado mixed-use commercial and residential condominium association related to alleged construction defects associated with a renovation project completed by a Declarant-controlled community board, and reformation of a community declaration of covenants to more equitably apportion common expenses [...]
The firm successfully negotiated on behalf of its client, the Federal Deposit Insurance Corporation (the “FDIC”), to preserve the judgment previously obtained by the firm in favor of the FDIC from the United States District Court for the District of Colorado in FirsTier Bank, Kimball, Nebraska v. F.D.I.C., 935 F. Supp. 2d 1109 (D.Colo. 2013), three consolidated actions. The cases involved a $17 million real estate loan (the “Loan”) originated by the now defunct FirstTier Bank of Louisville, Colorado (“FTB-CO”) to Everest Marin, LP for the construction of a portion of the well-known Landmark condominium development in Greenwood Village, Colorado, and two nearly identical loan participation agreements between FTB-CO and Adams Bank & Trust of Ogallala, Nebraska (“Adams”) and between FTB-CO and FirsTier Bank of Kimball, Nebraska (“FTB-NE”). In the underlying actions, the firm filed motions on behalf of the FDIC to dismiss complaints filed by Adams and FTB-NE under F.R.C.P. 12(b)(1) for lack of subject matter jurisdiction, and against Adams under F.R.C.P.12(b)(6) for failure to state a claim for relief under one of its contract claims. In its complaints, Adams alleged twenty different breach of contract claims against FTB-CO and the FDIC. It also alleged claims for breach of fiduciary or confidential duty, conversion, unjust enrichment, assumpsit, request for imposition of a constructive trust or equitable lien, declaratory judgment, fraud, and de novo determination of Adams’ proof of claim. In a cross-claim and separate complaint, FTB-NE asserted that it was entitled to relief if Adams eventually prevailed on its claims. Emphasizing “the importance of specificity in presenting a theory of recovery to the FDIC in a Proof of Claim,” the district court granted the FDIC’s motions to dismiss Adams’ claims on grounds that Adams failed to exhaust its administrative remedies for all of its claims, except one of its non-duplicative contract claims, as required under the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”). The court further held that the only contract claim that Adams exhausted failed to state a claim for relief because a plain reading of the contract rendered Adams’ interpretation of the contract legally implausible. Finally, the court dismissed FTB-NE’s cross-claim as moot and dismissed FTB-NE’s claims for “judicial review of its disallowance of its claim” for lack of subject matter jurisdiction. The case supports important case law from other federal circuits defining the FDIC administrative claims process, the requirement for exhaustion of administrative remedies for claims filed against failed federally-insured financial institutions, and the processing of post-receivership claims against the FDIC. The firm has proudly served as approved outside counsel to the FDIC since 2010.
Successfully negotiated a comprehensive settlement of litigation claims asserted by a 104 unit residential association in an Avon, Colorado mixed-use commercial and residential condominium association related to alleged construction defects associated with a renovation project completed by a Declarant-controlled community board, and reformation of a community declaration of covenants to more equitably apportion common expenses [...]