Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

Document 212

Filed 08/29/2008

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ANAHEIM GARDENS, et al., Plaintiffs,

v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) )

No. 93-655C (Judge Margaret M. Sweeney)

PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(h)(2) of the Rules of the Court of Federal Claims, Plaintiffs, Joseph R. Biafora, Stephi Biafora, Thetford Properties III, L.P., and C-W Associates, submit the following additional proposed findings of fact. 1. Milwood Apartments ("Milwood") was a § 221(d)(3) project that initially received rent

supplement assistance. See PA at 036-39. 2. Parthenia Manor Apartments ("Parthenia Manor") was a § 221(d)(3) project that initially

received rent supplement assistance. See PA at 044-45. 3. Market North Apartments #2 ("Market North #2") was a § 221(d)(3) project that initially

received rent supplement assistance. See PA at 040-43. 4. In 1985, Milwood converted from receiving rent supplement assistance to receiving

Section 8 Loan Management Set Asides ("Section 8 LMSA"). See PA at 058. 5. In 1983, Parthenia Manor converted from receiving rent supplement assistance to

receiving Section 8 LMSA. See PA at 059. 6. In 1981, Market North #2 converted from receiving rent supplement assistance to

receiving Section 8 LMSA. See PA at 060.

Case 1:93-cv-00655-MMS

Document 212 -2-

Filed 08/29/2008

Page 2 of 5

7.

Once a project converted from rent supplement assistance to Section 8 LMSA, it was no

longer subject to the 40-year prepayment lockout applicable to rent supplement properties, and became subject only to the standard 20-year prepayment restriction contained in 24 C.F.R. § 221.524. See PA at 061-63. 8. The United States Department of Housing and Urban Development ("HUD") had a

policy that its prepayment regulations superseded contrary language in a mortgage note. See PA at 279-81; see also 064-191, 073. 9. HUD entered into a LIHPRHA Use Agreement with Milwood on June 1, 1994, and that

agreement expressly stated that Milwood was a "eligible low income housing" under LIHPRHA. PA at 285-95. 10. HUD entered into a LIHPRHA Use Agreement with Parthenia Manor on June 1, 1994,

and that agreement expressly stated that Parthenia Manor was a "eligible low income housing" under LIHPRHA. PA at 296-308. 11. HUD entered into a LIHPRHA Use Agreement with Market North #2, and that

agreement expressly stated that Market North #2 was eligible to prepay [its] mortgage." 12. The Government previously agreed with Plaintiffs that they had a right to prepay their

mortgages on certain specific dates. See PA at 322-32. 13. In September 1971, 100 Centre Plaza entered into an Interest Reduction Contract with

HUD making it partially covered as a § 236 project. See PA at 046-53. 14. In early 1990, 100 Centre Plaza submitted an ELIHPA Notice of Intent to Prepay. See

PA at 333-37.

Case 1:93-cv-00655-MMS

Document 212 -3-

Filed 08/29/2008

Page 3 of 5

15.

The Notice of Intent was rejected by HUD, because HUD concluded that the notice was

premature, since according to HUD, the project was not entitled to prepay without consent until August 2008 given the August 1988 Modification. See PA at 338-39. 16. The rejection of the Notice of Intent triggered a series of extensive discussions between

100 Centre Plaza, HUD and the Massachusetts Housing Finance Agency ("MHFA") regarding the project's right to prepay its mortgage without consent. See PA at 338-60. 17. As the owner explained in the 30(b)(6) deposition for this property in the context of

discussing a related document, that was certainly not an agreement or abrogation of 100 Centre Plaza's unfettered right to prepay, but was instead intended by the parties to confirm the owner's right to prepay by correcting errors in the Massachusetts loan documents. See PA at 361-77. 18. HUD reviewed a draft of the First Amendment to Modification and Restatement of

Mortgage, Security Agreement and Assignment of Leases and Rents (the "First Amendment") and requested a conclusion from the MHFA regarding prepayment eligibility. See PA at 357-58. 19. 100 Centre Plaza obtained an opinion from MHFA which stated that the § 236 portion of

the 100 Centre Plaza mortgage was eligible to prepay without constraint because the required contingencies had been satisfied and that opinion was provided to HUD. See PA at 378. 20. On December 28, 1990, 100 Centre Plaza submitted another Notice of Intent (this time

under LIHPRHA). See PA at 379-81. 21. The Notice of Intent was accepted by HUD, and HUD proceeded to process 100 Centre

Plaza under LIHPRHA. See PA at 382-86. 22. The LIHPRHA processing of 100 Centre Plaza concluded with HUD approving 100

Centre Plaza to receive LIHPRHA incentives. PA at 387-95; 396-97.

Case 1:93-cv-00655-MMS

Document 212 -4-

Filed 08/29/2008

Page 4 of 5

Dated: August 29, 2008 NIXON PEABODY LLP

/s/ Harry J. Kelly Harry J. Kelly 401 9th Street N.W., Suite 900 Washington, D.C. 20004 P: (202) 585-8000 F: (202) 585-8080 [email protected] Attorney for Plaintiffs

Case 1:93-cv-00655-MMS

Document 212

Filed 08/29/2008

Page 5 of 5

CERTIFICATE OF FILING I certify that on the 29th day of August 2008, a copy of "PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Harry J. Kelly Harry J. Kelly