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

Case 1:01-cv-00669-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________ ) ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES ) ) Defendant. ) ________________________________) BENJAMIN & SHAKI ALLI AND BSA CORPORATION,

01-669C (Judge Allegra)

DEFENDANT'S RESPONSE TO PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(h)(2) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant respectfully responds to plaintiffs' proposed findings of uncontroverted fact filed concurrently with its answer to defendant's motion for partial summary judgment. Proposed Finding: 1. HUD began foreclosure proceedings on its mortgage Exhibit 2 -

on the Collingwood property on October 5, 1999. Defendant's Counterclaims, p. 12, paragraph 86. Response: 1. Undisputed.

On October 5, 1999, HUD advised plaintiffs

of its intent to foreclose Collingwood and provided plaintiffs 21 days to respond. Proposed Finding: 2. HUD foreclosed on its mortgage for the Collingwood

property in March, 2000 and sold the Collingwood property at

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auction for approximately $80,0000.

Exhibit 3 - Notice of

Foreclosure and Exhibit 4 - Deposition of Cory Fanning, p. 34, lines 10-11. Response: 2. It is undisputed that HUD held a foreclosure sale on

the Collingwood apartments on March 13, 2000, pursuant to the Multifamily Mortgage Foreclosure Act, 12 U.S.C. § 3701 et seq., and 24 C.F.R. Part 27, Subpart A. Because HUD was the sole

bidder for the property, HUD became the owner of the Collingwood apartments. See Def. Answer and Countercl. ¶ 97. The remaining

statements in paragraph 2 are disputed for lack of knowledge or information sufficient to form a belief, at the time of this filing, as to whether HUD purchased the Collingwood apartments from itself for approximately $80,000. Proposed Finding: 3. HUD's foreclosure and sale of Collingwood property

[sic] violated its own regulations, which require that HUD "encourage sale, by the mortgagor, as an alternative to foreclosure." The regulations further require that the

"encouragement of a sale . . . Should be by active (if possible face-to-face) and direct methods rather than passively subsuming it in the text of a letter without explanation or elaboration." Exhibit 5 - HUD Mortgage Servicing Handbook, p. 5-1, paragraphs 5-1(A) and 5-1(C). 2

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Response: 3. The statements contained in paragraph 3 are not

findings of fact, but are conclusions of law to which no response is required. To the extent they are deemed findings of fact, The regulations speak for themselves.

they are disputed.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Mark A. Melnick by Frank E. White, Jr. MARK A. MELNICK Assistant Director OF COUNSEL: Thomas G. Massouras Sol T. Kim Office of General Counsel U.S. Department of Housing & Urban Development 77 West Jackson Boulevard Suite 2629 Chicago, Illinois 60604 s/Marla T. Conneely MARLA T. CONNEELY Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel. (202) 307-1011 Fax. (202) 307-0972 Attorneys for Defendant

September 14, 2005

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