Free Motion for Summary Judgment - District Court of Federal Claims - federal

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No. 01-669C (Judge Allegra) IN THE UNITED STATES COURT OF FEDERAL CLAIMS BENJAMIN & SHAKI ALLI AND BSA CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

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

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TABLE OF CONTENTS PAGE(S) DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT . . . . . . . . 1 DEFENDANT'S BRIEF. . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE I. II. . . . . . . . . . . . . . . . . . . . . 1

Nature Of The Case . . . . . . . . . . . . . . . .1 Issues Presented . . . . . . . . . . . . . . . . 2 . . . . . . . . . . . . . . . 3

III. Statement Of Facts

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. II. Legal Standard Under RCFC 56 . . . . . . . . . . 9

The United States Is Entitled To Summary Judgment Upon Count VI Because The Contracts At Issue Imposed No Duty Upon HUD To Approve The Sale Of The Collingwood/Kirkwood Apartments . . . . . . . . 10

III. Even If HUD Had A Duty To Approve The TPA Application For The Sale Of The Collingwood/Kirkwood Apartments, HUD Did Not Breach That Duty Because Plaintiffs Never Submitted A Complete TPA Application . . . . . . . . . . . 13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 16

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TABLE OF AUTHORITIES CASES PAGE(S)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . 9, 10 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . 9 Frazier v. United States, No. 04-1481C, 2005 WL 1793417 (Fed. Cl. July 28, 2005) . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13, 16 Giove v. Dep't of Transportation, 230 F.3d 1333 (Fed. Cir. 2000) . . . . . . . . . . . . . 10 10

Gov't Sys. Advisors v. United States, 847 F.2d 811 (Fed. Cir. 1988) . . . . . . . . . . . . . .

Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed. Cir. 1987) . . . . . . . . . . . . . . 9 NVT Techs. Inc. v. United States, 370 F.3d 1153 (Fed. Cir. 2004) . . . . . . . . . . . . . 10 13

Ransom v. United States, 900 F.2d 242 (Fed. Cir. 1990) . . . . . . . . . . . . . .

San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957 (Fed. Cir. 1989) . . . . . . . . . . 11, 12, 13 Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560 (Fed. Cir. 1987) . . . . . . . . . . . . . . 9 United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983) . . . . . . . . . . . . . STATUTE 42 U.S.C. § 1437f . . . . . . . . . . . . . . . . . . . . passim 16

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

No. 01-669C (Judge Allegra)

DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Rule 56 of the Rules of the United States Court of Federal Claims ("RFCF"), defendant, the United States, respectfully moves for summary judgment on count VI of plaintiffs' second amended complaint upon the grounds that there are no genuine issues of material fact, and defendant is entitled to judgment as a matter of law. In support of this motion, we

rely upon the pleadings, the following brief, the attached appendix, and our proposed findings of uncontroverted fact filed simultaneously with this motion. DEFENDANT'S BRIEF STATEMENT OF THE CASE I. Nature Of The Case Plaintiffs Benjamin and Shaki Alli and BSA Corporation allege breach of contract claims relating to three multi-family housing projects that plaintiffs owned and managed in Detroit, Michigan.1

Each apartment building consisted of several related buildings. One apartment building is commonly referred to as the

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Compl. 1-6.2 Specifically, plaintiffs allege that the United States breached the contracts at issue when the Department of Housing and Urban Development ("HUD") suspended monthly subsidy payments for plaintiffs' three multi-family housing projects after plaintiffs repeatedly failed to correct serious defects identified in HUD's inspection reports. Id. Plaintiffs further

claim that the United States breached a contract with plaintiffs when it allegedly refused to approve the sale of one of plaintiffs' apartment buildings to a prospective buyer. II. 1. Issues Presented Whether defendant is entitled to summary judgment Id.

upon plaintiffs' claim that defendant breached the contracts at issue by allegedly refusing to approve the sale of the Collingwood/Kirkwood apartments where the undisputed facts demonstrate that defendant had no duty or obligation to approve the sale.

Collingwood/Kirkwood apartments and is located at 1610 Collingwood and 1635 Calvert in Detroit, Michigan. Compl. 2. Another apartment building is commonly referred to as the Riverside apartments and is located at 1730 Magnolia, 1800 Magnolia and 1830 Magnolia in Detroit, Michigan. Id. Finally, the third apartment building is commonly referred to as the Pingree/Gladstone apartments and is located at 2211 Pingree and 2987 Gladstone in Detroit, Michigan. Id. In this motion, the apartment buildings will be referred to as the Collingwood/ Kirkwood apartments, Riverside apartments and Pingree/Gladstone apartments, respectively. Plaintiffs' second amended complaint will be cited as "Compl." followed by the specific page reference. 2
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2.

Whether defendant is entitled to summary judgment upon

plaintiffs' claim that defendant breached the contracts at issue where the undisputed facts demonstrate that plaintiffs never requested HUD's approval of the sale of the Collingwood/Kirkwood apartments. III. Statement Of Facts

During relevant times, plaintiffs owned and managed the Collingwood/Kirkwood apartments, the Riverside apartments and the Pingree/Gladstone apartments. Compl. 2-6.

On June 8, 1989, HUD and BSA & Associates entered into a 15year Housing Assistance Payment Contract ("Riverside HAP contract") pursuant to Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f.3 App. 1.4 Under the Riverside HAP

contract, qualified lower-income residents in the Riverside apartments would pay a percentage of their income in rent and HUD would make up the difference in monthly subsidy payments to plaintiffs. Id. A provision in the Riverside HAP contract

required plaintiffs to maintain the Riverside apartments in a decent, safe and sanitary condition. Id. at 11. If HUD

determined that the Riverside apartments did not meet these standards, HUD could withhold its subsidy payments. Id.

BSA & Associates transferred the Riverside apartments to BSA Corporation in 1996. Compl. 2. The appendix filed with this motion will be cited as "App." followed by the specific page reference. 3
4

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On August 22, 1983, HUD and plaintiffs Benjamin and Shaki Alli entered into a 15-year HAP contract for the Pingree/ Gladstone apartments ("Pingree/Gladstone HAP contract"). 27. App.

This contract was renewed on August 25, 1998, August 25, Id. at 70-77. Similar to the

1999, and February 25, 2000.

Riverside HAP contract, the Pingree/Gladstone HAP contract provided qualified lower-income residents of the Pingree/Gladstone apartments to pay only a certain percentage of their income in rent with HUD subsidizing the remainder. Id.

The contract also contained the provision that plaintiffs keep the Pingree/Gladstone apartments in decent, safe and sanitary condition or else HUD would cease subsidizing the apartments. Id. at 44. In addition to providing subsidy payments for qualified tenants at the Pingree/Gladstone apartments, HUD also held a mortgage upon the building. Id. at 78. Accordingly, on August

24, 1983, HUD and plaintiffs Benjamin and Shaki Alli entered into a Regulatory Agreement for Insured Multi-Family Housing Projects ("Pingree/Gladstone regulatory contract"). Id. Specifically,

the Pingree/Gladstone regulatory contract provided that plaintiffs could not, without the prior written approval of HUD, convey, transfer or encumber any of the mortgaged property. at 79-80. On March 24, 1998, HUD and plaintiff BSA Corporation entered Id.

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into a 5-month HAP contract for the Collingwood/Kirkwood apartments.5 Id. at 86. This contract was renewed by the

parties several times, with the last renewal expiring on March 15, 2000. Id. at 102. The Collingwood/Kirkwood HAP contract

allowed low-income residents to pay only a certain percentage of their income in rent with HUD subsidizing the remainder. 86. Id. at

It also contained the provision that plaintiffs keep the

Collingwood/Kirkwood apartments in decent, safe and sanitary condition or else HUD would cease subsidizing the apartments. Id. at 94. Similar to the Pingree/Gladstone apartments, HUD also held a mortgage upon the Collingwood/Kirkwood apartments. Id. at 104.

Accordingly, on July 6, 1990, HUD and BSA Corporation entered into a regulatory contract for the Collingwood/Kirkwood apartments ("Collingwood/Kirkwood regulatory contract"). Specifically, the Collingwood/Kirkwood regulatory contract provided that plaintiffs could not, without the prior written approval of HUD, convey, transfer or encumber any of the mortgaged property. Id. at 105-6.

Although the contract was executed on March 24, 1998, the effective date of the contract was January 16, 1998. App. 86. Moreover, before entering into this contract, HUD and plaintiff BSA Corporation had entered into at least three prior HAP contracts for the Collingwood/Kirkwood apartments on October 1, 1996, June 17, 1997, and September 16, 1997, respectively. These three prior HAP contracts and the HAP contract at issue contained similar provisions. 5

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Beginning in the mid-1990's, HUD became concerned that plaintiffs were not maintaining the Collingwood/Kirkwood apartments, Riverside apartments and Pingree/Gladstone apartments (collectively, "housing projects") in decent, safe and sanitary conditions as required by the applicable HAP and regulatory contracts. The housing projects repeatedly failed HUD

inspections, and, when HUD concluded that plaintiffs were either unable to or unwilling to correct the serious deficiencies at the housing projects, HUD suspended its monthly subsidy payments. Eventually, plaintiffs sold the Riverside apartments and paid off the HUD-held mortgage for the Pingree/Gladstone apartments. On or around July 14, 1999, plaintiffs entered into an agreement to sell the Collingwood/Kirkwood apartments to Cory Fanning. Compl. 5; App. 113. Although the regulatory contract

and the HAP contract for the Collingwood/Kirkwood apartments explicitly required plaintiffs to seek and obtain written approval from HUD before transferring any interest in the mortgaged property, plaintiffs' purchase agreement with Mr. Fanning was not conditioned upon HUD's approval. App. 113.

Indeed, the agreement was silent regarding the regulatory contract, the HAP contract and HUD in general. Id.

Since 1992, HUD has operated under the current regulations governing an owner's request to transfer property covered by a regulatory contract. Id. at 115. These regulations are critical

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to HUD because, as in the case of the Collingwood/Kirkwood apartments, HUD has used public funds to insure the mortgage on the property. Therefore, HUD regulations clearly state, in

detail and in the form of a checklist, the forms and documents that must be submitted to request HUD's review and written approval of a transfer of property covered by a regulatory contract. Id. at 139-49. This application and subsequent review

are referred to as a Transfer of Physical Assets application ("TPA application") and a Transfer of Physical Assets review ("TPA review"), respectively. In this case, plaintiffs failed to submit the proper forms and documents required for a TPA application and its subsequent review.6 Id. at 238-39, 244-45. In fact, the only document HUD

ever received regarding the proposed sale was a copy of an already executed purchase agreement between plaintiffs and Mr. Fanning. Id. at 244-45. HUD's records show no other documents Id. at 238-

were received and the required fee was never paid. 39, 244-45.

Accordingly, plaintiffs never submitted a complete

TPA application requesting HUD's approval of the sale of the Collingwood/Kirkwood apartments to Mr. Fanning.

To the extent plaintiffs claim the submission of the TPA application was the responsibility of the buyer, plaintiff's claim should be dismissed because the proposed buyer, Cory Fanning, also failed to submit a complete TPA application. App. 244-45. In fact, Mr. Fanning testified at his deposition that he was not even unaware that HUD had to approve the sale of the Collingwood/Kirkwood apartments. Id. at 217-18. 7

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On August 8, 2002, plaintiffs filed a second amended complaint in this matter, asserting that the United States breached the Riverside HAP contract, the Pingree/Gladstone HAP contract, and the Collingwood/Kirkwood HAP and regulatory contracts. Compl. 1-6. On October 2, 2002, defendant filed

counterclaims alleging breach of the Riverside HAP contract, breach of the Pingree/Gladstone HAP and regulatory contracts and breach of the Collingwood/Kirkwood HAP and regulatory contracts. The parties have conducted discovery, including exchanging documents and conducting depositions. case on February 4, 2005. Discovery closed in this

Defendant files this motion pursuant

to the Court's July 1, 2005 scheduling order. SUMMARY OF ARGUMENT Plaintiffs have failed to identify any provision in the Collingwood/Kirkwood HAP or regulatory contracts that would have been breached if defendant had refused to approve the sale of the Collingwood/Kirkwood apartments as alleged by plaintiffs. While

the contracts impose a duty upon plaintiffs to seek and obtain HUD's written approval prior to selling the Collingwood/Kirkwood apartments to a prospective buyer, the plain language of the contracts did not impose any duty upon HUD to approve the sale. Moreover, even if the contracts imposed a duty upon HUD to approve the sale, plaintiffs never submitted a complete TPA application for HUD to review and approve. As a result, HUD

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neither reviewed, approved, nor denied the sale of the Collingwood/Kirkwood apartments to Mr. Fanning. ARGUMENT I. Legal Standard Under RCFC 56 Summary judgment may be granted where there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. RCFC 56; see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Ralph Larson & Son, Inc. v. United States, 17 Cl. Ct. 39, 42 (1989). A "material fact" is one "that might affect the Anderson, 477 U.S.

outcome of the suit under the governing law." at 248.

A dispute about a material fact is genuine "if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "[T]he burden is not on the movant to produce evidence showing the absence of a genuine issue of material fact." Sweats

Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986))(emphasis in original). Rather, the burden upon the

moving party may be discharged by "showing that there is an absence of evidence to support the non-moving party's case.'" Id. (emphasis in original) (quoting Celotex, 477 U.S. at 325). Finally, contract interpretation is a question of law. Giove

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v. Dep't of Transportation, 230 F.3d 1333, 1240 (Fed. Cir. 2000). Where no facts material to the proper interpretation of the contract are disputed, the claim at issue may appropriately be decided by summary judgment. Anderson, 477 U.S. at 248; Gov't

Sys. Advisors v. United States, 847 F.2d 811, 813 (Fed. Cir. 1988) (decision concerning contract interpretation precludes need to address factual issues raised by the parties where those factual disputes were not material to the legal standard created by the proper contract interpretation). II. The United States Is Entitled To Summary Judgment Upon Count VI Because The Contracts At Issue Imposed No Duty Upon HUD To Approve The Sale Of The Collingwood/Kirkwood Apartments Contract interpretation begins with the plain language of the agreement. NVT Techs. Inc. v. United States, 370 F.3d 1153, 1159 An interpretation that gives a reasonable

(Fed. Cir. 2004).

meaning to all parts of the contract will be preferred to one that leaves portions of the contract meaningless. United States

v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983). Where the language of a contract is clear and unambiguous, the provisions of the contract must be given the meaning that would be understood by a reasonably intelligent person acquainted with the contemporaneous circumstances. Frazier v. United States, No. A

04-1481C, 2005 WL 1793417 at *3 (Fed. Cl. July 28, 2005).

contract provision is unambiguous where a plain reading of the provision results in only one reasonable interpretation. 10 Id.

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In order to recover for breach of contract, plaintiffs must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by the breach. San Carlos

Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989). In this case, the Government is entitled to

judgment as a matter of law because the plain language of the contracts do not impose upon defendant the duty alleged by plaintiffs. Although it is not entirely clear, plaintiffs appear to claim that HUD breached either the Collingwood/Kirkwood HAP agreement or regulatory agreement by "arbitrarily and without reason refus[ing] to approve the sale of the Collingwood/Kirkwood Property."7 Compl. 6. However, plaintiffs cannot point to a

provision in either the HAP contract or the regulatory contract that obligated defendant to approve the sale of the Collingwood/Kirkwood apartments. Instead, paragraph 19(a) of the HAP contract states:

In the second amended complaint, plaintiffs refer to count VI as a "Breach of Contract With Regard to the Sale Upon Approval Clause for the Collingwood/Kirkwood Property." However, also in the complaint, plaintiffs claim HUD's alleged refusal to approve the sale was a "breach of [the] purchase contract," which had been previously defined in the complaint as the agreement between plaintiffs and Cory Fanning. If count VI alleges defendant breached the purchase contract, count VI should be dismissed for failure to state a claim under RCFC 12(b)(6) because HUD was neither a party to, a signatory, a third-party beneficiary, nor even mentioned in the purchase contract. 11

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The Owner agrees that it has not made and will not make any sale, assignment, or conveyance or transfer in any fashion, of this Contract, the Agreement . . . or the project or any part of them or any of its interest in them, without the prior written consent of HUD. However, in the case of an assignment as security for the purpose of obtaining financing of the project, HUD shall consent in writing if HUD has approved the terms of the financing. Id. at 94. Therefore, the plain language of the HAP contract

merely imposes a duty upon HUD to consent, in writing, to an assignment of the property as security for obtaining financing of the project if HUD has approved the terms of the financing. Those were not the circumstances in this case. Here, it is

undisputed that plaintiffs wanted to sell the building to Mr. Fanning "because of the amount of purported repairs required." Compl. 5. They were not assigning the building as security to Accordingly, the HAP contract

finance the project itself.

imposed no duty upon HUD to consent to the sale of the building to Mr. Fanning. Likewise, paragraph 8(a) of the regulatory contract simply provides that plaintiffs "shall not without the prior written approval of [HUD] . . . convey, transfer, or encumber any of the mortgaged property, or permit the conveyance, transfer, or encumbrance of such property." Id. at 105. The regulatory

contract also imposes no duty upon HUD to consent to plaintiffs' sale of the Collingwood/Kirkwood apartments to Mr. Fanning. Indeed, the duty imposed by the regulatory contract is a duty 12

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upon plaintiffs to seek and obtain HUD's written consent before selling the property to Mr. Fanning, which, as will be demonstrated below, plaintiffs failed to do prior to entering into a purchase agreement to sell the property. 14. Accordingly, because it is undisputed that plaintiffs sought to sell the Collingwood/Kirkwood apartments to Mr. Fanning due to the amount of required repairs, and not as security for financing, HUD had no duty to approve the sale of the property to Mr. Fanning. Therefore, judgment must be entered for the Id. at 105, 113-

Government as to count VI of plaintiffs' second amended complaint. See Frazier, No. 04-1481C, 2005 WL 1793417 at *4

("[W]here there is no duty, there is no breach."); see also Ransom v. United States, 900 F.2d 242, 243 (Fed. Cir. 1990)(affirming decision to grant summary judgment to defendant where defendant owed no obligations to plaintiff that it could have breached). III. Even If HUD Had A Duty To Approve The TPA Application For The Sale Of The Collingwood/Kirkwood Apartments, HUD Did Not Breach That Duty Because Plaintiffs Never Submitted A Complete TPA Application

Section 4350.1, Chapter 13 of the HUD handbook contains the regulations governing TPA applications and the TPA review process.8 Id. at 115. Specifically, the regulations list the

This handbook is publicly available online at www.hudclips.org. 13

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forms, documents and fees that must be submitted to form a complete TPA application. Id. The regulations even include a

step by step detailed explanation of the required items and a summary checklist. Id. at 139-49, 168-70. For example, a TPA

application for a full review, which is required for a transfer of title from the owner to a buyer, consists of, among other items, an application fee, TPA application form, purchaser's letter, purchaser's certificate of previous participation form, purchaser's resume, executed but unrecorded regulatory agreement by buyer, purchaser's personal financial statement, proposed rental schedule form, attorney's certification, Byrd Amendment Certification, title report, and executed organizational documents of purchaser. Id.

Moreover, the regulations specifically state that HUD will only review TPA applications that are complete. Id. at 145.

Once a completed application is submitted, the regulations provide a form letter to be sent to the owner notifying him or her that a complete TPA application was received. 149. Id. at 145,

If the deficiencies are not serious, the regulations

provide a form letter to alert the applicant that certain documents are missing. Id. at 145, 150. Finally, once a TPA

application is reviewed, the regulation provides that HUD will either send the applicant a form letter that the application has been approved or a form letter that the application has been

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denied.

Id. at 146-49, 153-56.

In this case, HUD never sent a letter approving or denying the sale of the Collingwood/Kirkwood apartments because a complete TPA application was never received. Id. at 243-45.

Plaintiffs not only failed to submit a complete TPA application, but they failed to submit even an initial TPA application form that may have triggered a letter from HUD that plaintiffs' TPA application was deficient. Id. Rather, the only document HUD

received from plaintiffs was a copy of an already executed purchase agreement between plaintiffs and Cory Fanning. Id.

Moreover, HUD's check registry for the Detroit office for 1999 shows neither plaintiffs nor Mr. Fanning ever submitted a TPA application fee, and Mr. Fanning admitted in his deposition that he did not even know the sale of the Collingwood/Kirkwood apartments had to be approved by HUD. 238-39. Id. at 217-18, 219-21,

Mr. Fanning also admitted that he never took any steps Id. at 217-18.

towards requesting HUD's approval of the sale.

This is relevant because many of the necessary items for a complete TPA application required either the proposed buyer's signature or had to be prepared by the proposed buyer. 239-49. Plaintiffs' listing agent for the Collingwood/Kirkwood apartment building, Gary Hopkins, testified at his deposition that he knew HUD's approval was required, but that he believed it Id. at

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was Mr. Fanning's responsibility or the responsibility of Mr. Fanning's lender to obtain HUD's approval. Id. at 198-99. He

admitted that he took no steps to receive HUD's approval, and did not know whether plaintiffs took any steps to obtain HUD's approval either. Id. at 200-1, 203. He also admitted that while

he was aware that Mr. Fanning was required to submit at least one form to HUD regarding his previous participation in HUD-related projects, he did not know whether such a form was ever submitted. Id. at 207-8. Accordingly, even if the Government had a duty to approve plaintiffs' TPA application requesting approval of the sale of the Collingwood/Kirkwood apartments to Mr. Fanning, the Government did not breach that duty because plaintiffs never submitted a complete TPA application. See Frazier, No. 04-1481C,

2005 WL 1793417 at *5-6 (dismissing plaintiffs' breach of contract claim because even if the alleged duties existed, defendant did not breach that duty). Therefore, HUD neither

reviewed nor refused to approve the sale as plaintiffs allege. CONCLUSION For these reasons, the United States respectfully requests that the Court enter judgment in favor of the Government as a matter of law as to count VI of plaintiffs' second amended complaint.

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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 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 Washington, D.C. 20530 Tel. (202) 307-1011 Fax. (202) 307-0972 Attorneys for Defendant

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