# Parker North American Corp. v. Resolution Trust Corp. (In re Parker North American Corp.)

> Court of Appeals for the Ninth Circuit · May 19, 1994 · 24 F.3d 1145

URL: https://www.frixlaw.com/law-library/cases/6930823

## Case

- **Full name:** In re PARKER NORTH AMERICAN CORPORATION, Debtor. PARKER NORTH AMERICAN CORPORATION v. RESOLUTION TRUST CORPORATION, as Receiver for Sooner Federal Savings and Loan Assoc., Defendant-Appellant PARKER NORTH AMERICAN CORPORATION v. RESOLUTION TRUST CORPORATION, as Receiver for Sooner Federal Savings and Loan Assoc.
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 19, 1994
- **Citations:** 24 F.3d 1145; 1994 WL 192456
- **Precedential status:** Published
- **Opinion:** Concurrence by Fletcher
- **Judges:** Fletcher, Hall, Pregerson
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6930823

## How later opinions describe it (automated extraction)

- acknowledging that "[cjlaimants must exhaust these administrative remedies before seeking district or bankruptcy court review.”

## Opinion text

FLETCHER, Circuit Judge,
concurring.
I concur separately because I believe this case can be resolved on grounds far narrower than those relied on by the majority. The majority states in conclusion that FIRREA’s exhaustion requirement does not apply “where the RTC has filed a proof of claim that exceeds the amount sought to be recovered by the debtor,” and where the claim against the RTC “arise[s] only incidentally to the bankruptcy court’s determination of the RTC’s claim against the debtor.” Majority op. at 5311. But in these situations, any claim on the part of the debtor is in the nature of an affirmative defense, and we held in RTC v. Midwest Fed. Sav. Bank, 4 F.3d 1490, 1496-97 (9th Cir.1998), that affirmative defenses of this kind are not subject to FIR-REA’s exhaustion requirement. We need go no further to resolve this case.
Most notably, we need not decide whether all preference actions are exempt from the sway of FIRREA. Certain preference actions may not be “incidental” to the RTC’s collection efforts: a debtor may seek affirmative recovery of the preference, rather than simply a setoff. Compare 11 U.S.C. § 550 (a) (affirmative recovery of a preferential transfer) with 11 U.S.C. § 502 (d) (setoff). In such a situation, I am not at all certain that a preference action could not be characterized, and properly so, as a “claim” under FIR-REA, subject to FIRREA’s exhaustion requirement. See In re All Season’s Kitchens, Inc., 145 B.R. 391, 401 (Bankr.D.Vt.1992) (“ ‘claim of preference’ [as used in 12 U.S.C. § 1821 (d)(5)(D)] should be construed to be limited to those situations in which the claimant is a creditor. An example would he a situation where the trustee seeks to recover preferential payments”) (emphasis added).
In this case, although PNA initiated the preference action, and therefore at one time may have appeared to be using that action as something more than an affirmative defense, subsequent events have made it clear that the preference action will lead at most to a setoff. Under such circumstances, I believe that Midwest Federal Savings controls. 1 I *1157 therefore concur in the result reached by the majority.
. The holding of Midwest Federal Savings was confined to situations in which the party raising the affirmative defense "had no independent basis for filing a claim against the RTC." 4 F.3d at 1497 . Here, PNA did have an independent basis for its preference action, as is borne out by the fact that PNA filed the preference action first.
In concluding that PNA's preference action eventually became "incidental” to the RTC’s *1157 claims against PNA, the majority looks beyond this fact. While I agree that that is the right approach here, I think we need not decide (as the majority appears to) whether or not PNA would have been subject to FIRREA's exhaustion requirement if it had continued to assert the preference action in the service of an affirmative recovery. To decide whether or not all preference actions are exempt from FIRREA should not be our mission.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6930823. Public record. Not legal advice.