Old Bridge Owners Cooperative Corp; North County Conservancy of Union City, L.l.c.; Grandview Estates of New Jersey, Lp, a New Jersey Limited Partnership; Old Bridge Partners I, L.l.c., a New Jersey Limited Liability Company; Federal Deposit Insurance Corporation, As Receiver for Metro North State Bank and the Merchants Bank ("fdic") Intervenor-plaintiff in D.c. v. Twp of Old Bridge; Old Bridge Municipal Utilities Authority, 246 F.3d 310 (3d Cir. 2001)

Federal Deposit Insurance Corporation ("FDIC") appeals from the final judgment of the United States District Court for the District of New Jersey holding the FDIC personally liable for delinquent property taxes, and water and sewer charges, accrued with respect to an apartment complex during the years that the FDIC held a mortgage interest in the property.

In 1988 Old Bridge Owners Cooperative Corp. ("Owners") and Grandview Estates, L.P. ("Grandview") purchased an apartment complex named Sterling Estates. The purchase was financed with a $ 12 million loan. After defaulting on loan payments, Owners and Grandview refinanced the loan (presumably including accrued but unpaid interest) into two separate debts, with each debt secured by a separate mortgage. The first mortgage (the "Metro mortgage"), securing the amount of approximately $ 9 million, was held by Metro North State Bank ("Metro"). The second mortgage (the "Coreast mortgage"), securing the amount of approximately $ 4 million, was held by Coreast Savings Bank ("Coreast"). Owners and Grandview later defaulted on repayment of the debts secured by the mortgages, and both Metro and Coreast became insolvent.

In 1991, Resolution Trust Company ("RTC")¹  was appointed receiver for Coreast. RTC transferred the Coreast mortgage to North County Conservancy, Inc. ("North County") in 1994. In 1992, the FDIC was appointed receiver for Metro. In March 1994, the FDIC instituted an action to foreclose on the Metro mortgage that resulted in a foreclosure judgment in the amount of $ 17.5 million. In 1995, the FDIC obtained the title to Sterling Estates through a sheriff's sale and sold the apartment complex to North County. When North County acquired Sterling Estates, property taxes and water and sewer charges had not been paid for the years 1990 through 1995.

North County brought this action against the Township of Old Bridge ("Township") and the Old Bridge Municipal Utilities Authority ("MUA") to have the 1990-1995 liens for the unpaid property taxes and other charges declared void pursuant to 12 U.S.C. 1825(b), which provides a detailed tax exemption framework applicable to property of the FDIC. The FDIC intervened as a plaintiff.

On January 11, 1996, the District Court held that 1825(b) precluded any liens securing property taxes and water and sewer charges from attaching to Sterling Estates from 1991 to 1995, the years during which the FDIC held the Metro mortgage in receivership. See Old Bridge Owners Coop. Corp. v. Township of Old Bridge, 914 F. Supp. 1059, 1064-66 (D.N.J. 1996). But the Court also held that the FDIC would remain personally liable for the delinquent property taxes and other charges accumulated during those years. See id.

The District Court reached this conclusion based on its interpretation of three sub-sections of 1825(b). The Court reasoned that, under a broad exemption contained within 1825(b) (1),²  the FDIC was liable for the delinquent property taxes and other charges accrued against the Sterling Estates for the period of time during which the FDIC held a mortgage interest in the property. See id. at 1064. However, the Court further observed that, under 1825(b) (2),³  these property taxes and other charges could not be secured through a lien attaching to Sterling Estates. See id. at 1065. Finally, the Court noted that 1825(b) (3)⁴ -- which exempts the FDIC from penalties or fines arising from a failure to pay property taxes owed-- would be unnecessary if 1825(b) (2) entirely exempted the FDIC from tax liability. See id. at 1065-66. The Court therefore concluded that the FDIC must remain personally liable under $ 1825(b) (1) for the delinquent taxes and charges that could not be secured through a lien attaching to Sterling Estates because of 1825(b) (2).⁵ 

The FDIC filed a motion for reconsideration arguing that the District Court had misinterpreted the subsections of 1825(b). Under 1825(b) (1), the FDIC contended that it was liable for ad valorem property taxes and other charges on any real property it owns, but not on real property in which it only has a mortgage interest.⁶  It further alleged that 1825(b) (2) does not preclude the attachment of a lien to Sterling Estates because the apartment complex was not owned by, and therefore not the "property of," the FDIC.⁷  In short, the FDIC claimed that a lien should have attached to Sterling Estates to secure the delinquent property taxes and other charges. Moreover, that lien should have run with the land when it was sold to North County, and the FDIC, as a mere mortgage holder, should not have been held personally liable for the delinquent amounts. However, on March 7, 1996, the District Court denied the FDIC's motion for reconsideration. After further proceedings, final judgment was entered on July 9, 1999, and North County and the FDIC appealed.

The overwhelming weight of authority is that Section 1825(b) (1) does not give rise to the FDIC's liability for taxes and charges accrued on real property in which the FDIC has a mere mortgage interest, and that 1825(b) (2) does not prevent liens from attaching to such property. See S/N-1 REO Ltd. Liability Co. v. City of Fall River, 81 F. Supp. 2d 142, 150-51 (D. Mass. 1999); RTC Commercial Assets Trust 1995- NP3-1 v. Phoenix Bond & Indem. Co., 963 F. Supp. 706, 712 n.2 (N.D. Ill. 1997); In re Stafford Pool & Fitness Ctr., 252 B.R. 627, 630 (Bankr. D. N.J. 2000); PNL Asset Mgmt Co. v. Kerrville Ind. Sch. Dist., 37 S.W.3d 80, 84 (Tex. App. 2000); Town of East Lyme v. New England National, LLC, 2000 Conn. Super. LEXIS 2963, No. 547594, 2000 WL 1784127, at *4 (Conn. Super. Nov. 9, 2000); 37 Huntington St. v. City of Hartford, 2000 Conn. Super. LEXIS 392, No. CV 99059067, 2000 WL 226372, at *4 (Conn. Super. Feb. 10, 2000); Casino Reinvestment Dev. Auth. v. Cohen, 321 N.J. Super. 297, 728 A.2d 868, 870-72 (N.J. Super. Ct. Law Div. 1998); see also Atlantic National Trust, L.L.C., No. CV 00-1087, slip op. at 14-15 (D.N.J. Jan. 10, 2001) (unpublished).

However, subsequent to the filing of this appeal North County surrendered the unpaid property tax under protest and paid the water and sewer charges pursuant to a settlement agreement. Moreover, North County voluntarily withdrew its appeal because it no longer had any stake in the case after paying the Township and MUA. The FDIC urges us to review the District Court's decision nevertheless because it has collateral legal consequences for the FDIC in other proceedings that can be effectively addressed by a decision of this Court. See National Iranian Oil Co. v. Mapco Int'l, Inc., 983 F.2d 485, 490 (3d Cir. 1992) ("If a trial court's order will have possible collateral legal consequences, a case is not moot."); accord Int'l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 916 n.5 (3d Cir. 1987).

We empathize with the FDIC's position, but find that we are unable to reach the merits because its appeal is moot. Mootness occurs when there is no live controversy left to be resolved. Int'l Bhd. of Boilermakers, 815 F.2d at 915. Article III, section 2, clause 1 of the United States Constitution dictates that a cause of action must present a case or controversy. "To establish the existence of such a 'live' issue, there must be 'a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' " Int'l Bhd. of Boilermakers, 815 F.2d at 915 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 81 L. Ed. 617, 57 S. Ct. 461 (1937)). A central question in determining mootness is whether a change in circumstances since the beginning of the litigation precludes any occasion for meaningful relief. Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985). Since the filing of this appeal, North County paid the property taxes and the water and sewer charges. No case and controversy remains. Moreover, we do not believe that the collateral consequences the FDIC complains of are sufficient to save this appeal from being rendered moot.

However, we note that "generally, when a case becomes moot pending disposition of an appeal, the judgment below will be vacated and the case will be remanded with instructions to dismiss." Humphreys v. Drug Enforcement Admin., 105 F.3d 112, 113 (3d Cir. 1996) (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 95 L. Ed. 36, 71 S. Ct. 104 (1950)). Whether to vacate a decision because of mootness is within the Court's discretion based on equity. 105 F.3d at 114. A major equitable consideration is whether the parties, "through no fault of their own, [have] been deprived of a review on the merits of the district court's adverse rulings and ought not to be forced to acquiesce in them." In re Orthopedic BoneScrew Prods. Liab. Litig., 94 F.3d 110, 111 (3d Cir. 1996). In U.S. Bancorp Mortgage Co. v. Bonner Mall P'Ship, 513 U.S. 18, 25, 130 L. Ed. 2d 233, 115 S. Ct. 386 (1994), the Supreme Court advised that " [a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." We conclude that the FDIC should not be penalized by allowing the District Court's ruling to stand when it is precluded, through no fault of its own, from having that decision reviewed on the merits. We will therefore grant the equitable relief of vacatur.

For the foregoing reasons, we dismiss this appeal as moot but vacate the judgment of the District Court.