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FDIC v. BELL FORGE ASSOCS.

October 29, 1990

FEDERAL DEPOSIT INSURANCE CORPORATION
v.
BELL FORGE ASSOCIATES, LTD., and TURNER MANAGEMENT, INC.



The opinion of the court was delivered by: NIXON

 JOHN T. NIXON, UNITED STATES DISTRICT JUDGE

 This Memorandum sets forth the reasoning behind the Court's Order, entered on October 23, 1990, denying the plaintiff's motion for a preliminary injunction. Oral argument was heard on October 18, 1990.

 FACTS

 The instant action arises from the acquisition of the Shoppes of Bell Forge ("The Shoppes"), a Nashville shopping center, by the Federal Deposit Insurance Corporation ("FDIC") at a foreclosure sale in September, 1990. The FDIC is seeking a preliminary injunction to restrain the defendants' continued possession of the Shoppes in light of the foreclosure sale. The defendant Bell Forge Associates ("BFA") maintains, notwithstanding the foreclosure sale, that BFA and its property manager, Turner Management ("Turner") are still entitled to possession of The Shoppes.

 The road leading to this Court has been well-worn by previous legal action over The Shoppes. BFA acquired The Shoppes in 1986 subject to a construction loan extended to the prior owner by a subsidiary of Sunbelt Savings & Loan Association ("Old Sunbelt"). Soon after, BFA and Old Sunbelt fell into a dispute over the loan which resulted in an action before the Chancery Court for the Twentieth Judicial District of Tennessee. While motions by both parties were pending in Chancery, BFA filed for bankruptcy in the United States Bankruptcy Court for the Southern District of New York.

 After BFA filed its Petition in Bankruptcy, Old Sunbelt was taken over by the Federal Savings & Loan Insurance Corporation ("FSLIC"). The FSLIC was, in turn, taken over by the FDIC, pursuant to the enactment of the Financial Institution Recovery, Reform and Enforcement Act, Pub. L. No. 101-73, 101 Stat. 183 (1989). A "New Sunbelt" was then created to be the repository of certain assets formerly held by Old Sunbelt. New Sunbelt, either on its own account or as an agent for the FDIC, began to pursue the collection of Old Sunbelt's indebtedness in the Bankruptcy Court in New York. Hence, the foreclosure sale.

 A short time after the foreclosure sale, the property manager engaged by the FDIC for The Shoppes attempted to take possession of the property and its management offices from Turner Management. However, Turner refused to relinquish possession and the Metropolitan Police were called to prevent the FDIC's agent, Carl Storey, III, from taking possession.

 The plaintiff argues that it is entitled to possession of the property as a result of the foreclosure sale. It further contends that Turner's and BFA's continued possession of The Shoppes prevents the shopping center from functioning in a business-like fashion and compromises its commercial integrity.

 The defendant claims that it was not provided with proper notice regarding the foreclosure sale under the terms of BFA's Deed of Trust for The Shoppes. It also alleges that in light of the foreclosure sale, the Deed of Trust dictates that BFA is now a tenant at will. As a result, its removal from possession can only occur upon a successful forcible and unlawful detainer suit by the property's new owner.

 DISCUSSION

 In considering a motion for a preliminary injunction, a district court must apply a four-step analysis. The court must determine whether the plaintiff has shown:

 
1) a substantial likelihood of success on the merits;
 
2) a substantial threat exists that he or she will suffer irreparable harm if the preliminary ...

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