Schroeder v. United States ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTA E. SCHROEDER, 
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, acting
through the FARMERS HOME
ADMINISTRATION, UNITED STATES
DEPARTMENT OF AGRICULTURE; its
successor in interest, THE RURAL No. 07-36073
HOUSING SERVICE OF THE UNITED
STATES DEPARTMENT OF  D.C. No.
2:06-cv-00818-SU
AGRICULTURE; and STATE DIRECTOR
OPINION
FOR THE FARMERS HOME
ADMINISTRATION FOR THE STATE OF
OREGON its successor STATE
DIRECTOR FOR OREGON OF THE
RURAL HOUSING SERVICE OF THE
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
March 5, 2009—Portland, Oregon
Filed June 22, 2009
Before: Susan P. Graber, Raymond C. Fisher, and
Milan D. Smith, Jr., Circuit Judges.
7393
7394 SCHROEDER v. UNITED STATES
Opinion by Judge Milan D. Smith, Jr.
7396 SCHROEDER v. UNITED STATES
COUNSEL
William F. Schroeder, Vale, Oregon, for the plaintiff-
appellant.
Suzanne A. Bratis and Kelly A. Zusman, Assistant United
States Attorneys, United States Attorney’s Office for the Dis-
trict of Oregon, Portland, Oregon, for the defendant-appellee.
Gideon Anders, National Housing Law Project, Oakland, Cal-
ifornia, and Ed Johnson, Oregon Law Center, Portland, Ore-
gon, for the amici curiae.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Plaintiff-Appellant Alberta Schroeder appeals a grant of
summary judgment for the United States in her suit seeking
SCHROEDER v. UNITED STATES 7397
to quiet title in an apartment complex she owns and operates.
Under the National Housing Act loan program into which she
entered in 1984, Schroeder was required to use her property
exclusively as low-income housing until she fully repaid her
loans. Schroeder argues that, although the loans have not yet
come due, the government must now accept payment in full
on her loans, thereby allowing her to terminate her participa-
tion in the National Housing Act program. The district court
ruled that the Emergency Low Income Housing Preservation
Act of 1987 (ELIHPA) forecloses Schroeder’s arguments and
declined to grant equitable relief. We affirm the decision of
the district court.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Housing Act of 1949 and the Emergency Low
Income Housing Preservation Act of 1987
Congress passed the Housing Act of 1949, 42 U.S.C.
§§ 1441-1490, to encourage private investment in housing for
elderly and low-income rural residents. Section 515 of Title
V of the Housing Act authorized the Department of Agricul-
ture Farmers Home Administration (FmHA) (which was later
incorporated into the Rural Housing Service (RHS)) to make
direct loans to borrowers seeking to finance affordable hous-
ing (RHS loans or § 515 loans). See 42 U.S.C. § 1485.
Involved property owners, in exchange for reduced interest
rates and other subsidies, agreed to rent their covered proper-
ties only to qualified elderly and low-income tenants at
affordable rates until the owners had fully repaid their RHS
loans. 42 U.S.C. § 1490a. Initially, loans made under this pro-
gram provided borrowers with an unrestricted right to repay
their loans at any time. Franconia Assocs. v. United States,
536 U.S. 129, 135 (2002).
In 1987, responding to fears that the supply of affordable
rural housing was dwindling because borrowers were prepay-
ing their RHS loans, Congress enacted ELIHPA, 42 U.S.C.
7398 SCHROEDER v. UNITED STATES
§ 1472(c).1 Under ELIHPA, RHS may accept “prepayments”
on covered loans only if the property owner first complies
with ELIHPA’s “elaborate requirements” designed to pre-
serve low-income housing. DBSI/TRI IV Ltd. P’ship v. United
States, 465 F.3d 1031, 1035-36 & n.2 (9th Cir. 2006)
(describing prepayment procedures under 42 U.S.C.
§ 1472(c)); see also Kimberly Assocs. v. United States, 261
F.3d 864, 867 (9th Cir. 2001).
Under these procedures, the owner must first give notice of
intent to prepay. 42 U.S.C. § 1472(c)(3). Then, the govern-
ment must offer the owner a financial incentive to remain in
the program. Id. § 1472(c)(4)(A). If the owner still wishes to
prepay, the owner must offer to sell the property to any quali-
fied nonprofit organization or public agency at fair market
value. Id. § 1472(c)(5)(A)(i). If the property is not sold within
180 days, RHS may then accept the prepayment from the
owner. Id. § 1472(c)(5)(A)(ii); DBSI/TRI, 465 F.3d at 1035.
In 2002, in response to property owners’ legal challenges
to ELIHPA, the Supreme Court held that the Act “effected a
repudiation of” the existing loan contracts. Franconia, 536
U.S. at 143. On remand, the Court of Federal Claims clarified
the property owners’ rights and recourse: “The promissory
notes at issue could not be much clearer in allowing plaintiffs
to prepay at any time, indicating unambiguously that
‘[p]repayments of scheduled installments, or any portion
thereof, may be made at any time at the option of the Borrow-
er.’ ” Franconia Assocs. v. United States, 61 Fed. Cl. 718, 730
(2004) (alteration in original). The government, therefore, has
1
ELIHPA originally applied only to loans entered into with RHS before
December 21, 1979. See Franconia, 536 U.S. at 136. In 1992, Congress
extended the Act’s restrictions to include loans made between December
21, 1979 and December 15, 1989, exclusive. Id. at 137 n.3 (citing 42
U.S.C. § 1472).
.
SCHROEDER v. UNITED STATES 7399
a “concomitant obligation” to accept the prepayment, and
ELIHPA repudiated the property owners’ rights. Id. at 730-
33. As a result, a property owner whose contracts have been
adversely affected by ELIHPA may bring a claim for dam-
ages against the government. Franconia, 536 U.S. at 143.
Because the United States was not acting in its capacity as
sovereign in enacting ELIHPA, the government may not
assert a sovereign immunity defense in such an action. Id. at
141 (“‘When the United States enters into contract relations,
its rights and duties therein are governed generally by the law
applicable to contracts between private individuals.’ ” (quot-
ing Mobil Oil Exploration & Producing Se., Inc. v. United
States, 530 U.S. 604, 607 (2000))); see also Kimberly, 261
F.3d at 867-70. But the United States is not “free to disobey”
ELIHPA; it may accept a borrower’s prepayment only after
following the procedures described in ELIHPA. DBSI/TRI,
465 F.3d at 1041. Therefore, borrowers who wish to prepay
must either comply with ELIHPA’s procedures or seek dam-
ages under the Tucker Act in the Court of Federal Claims. See
Franconia, 536 U.S. at 138; DBSI/TRI, 465 F.3d at 1041.
II. Schroeder’s Property and Loans
Schroeder currently owns and operates a six-unit low-
income housing project located in Heppner, Oregon, known
as the Willow View Apartments. Schroeder’s predecessor, the
Midas Company, purchased the property in 1975 using a
forty-year, $170,300 loan from the FmHA (the 1975 Loan),
the terms of which were evidenced by a promissory note and
mortgage on the property.
Schroeder purchased the Willow View Apartments in
August 1984, approximately three years before ELIHPA
became law. With the government’s consent, Schroeder
assumed the 1975 Loan and executed another promissory
note, a deed of trust, and a loan agreement as part of a fifty-
year, $3500 Housing Act loan (the 1984 Loan). Accordingly,
7400 SCHROEDER v. UNITED STATES
Schroeder became liable for two loans on the property (col-
lectively, the Loans), which respectively became due in 2015
and 2034. Both promissory notes gave Schroeder the uncondi-
tional right to prepay in full the principal sums due thereon at
any time. However, the deed of trust associated with the 1984
Loan included a provision requiring Schroeder to use the
property only for low-income housing for a twenty-year
period, beginning in August 1984 (the Loan Covenant). In
addition, the 1984 loan agreement (which referenced both of
the Loans) included a provision further restricting the use of
the property by stating that, “[s]o long as the loan obligations
remain unsatisfied, the Borrower shall not use the house for
any purpose other than as rental housing and related facilities
for eligible [i.e., elderly and low-income] occupants.”
Schroeder operated the property for the next twenty years,
making regular payments on the Loans.
The Loan Covenant expired on September 1, 2004. That
same day, Schroeder attempted to tender the full amount out-
standing on both Loans. In her payment request, Schroeder
stated that she had difficulty managing the property due to her
advanced age and that the property’s rental income was insuf-
ficient to permit her to hire a manager. In March 2006, the
government sent Schroeder an incentive offer to continue
operating the property as low-income housing. In April 2006,
Schroeder tendered full payment on both Loans, but her ten-
der was rejected by RHS. Schroeder, in turn, rejected RHS’s
incentive offer and attempted to sell the property to a local
housing authority at a substantially higher price than RHS’s
appraisal value. RHS continued to refuse to allow Schroeder
to prepay the remaining debt owed on the Loans, maintaining
that ELIHPA prohibits prepayment unless a property owner
specifically complies with the Act’s procedural requirements.
III. Procedural History
In May 2006, Schroeder filed this suit in Morrow County,
Oregon, Circuit Court, seeking to compel the government to
SCHROEDER v. UNITED STATES 7401
accept her full payment of the Loans, and to quiet title to her
property. The government removed the case to federal court.
The parties filed cross-motions for summary judgment.
Schroeder argued that ELIHPA does not apply to her property
because the Loan Covenant had expired in 2004 and because
she did not tender a “prepayment” within the meaning of ELI-
HPA. She also offered equitable arguments in support of her
quiet title action.
A magistrate judge recommended granting Schroeder’s
motion for summary judgment and denying the government’s
motion for summary judgment. The magistrate judge con-
cluded that, because the Loan Covenant had expired, equity
favored granting Schroeder’s quiet title action. The govern-
ment filed objections. The district court rejected the magis-
trate judge’s proposed findings and conclusions, and held that
Schroeder was not entitled to quiet title to her property.
Schroeder appeals.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291. We review de novo the district court’s grant of sum-
mary judgment. See Buono v. Norton, 371 F.3d 543, 545 (9th
Cir. 2004). We review for abuse of discretion the district
court’s decision to grant or deny equitable relief. See Rabkin
v. Or. Health Scis. Univ., 350 F.3d 967, 977 (9th Cir. 2003).
Federal common law applies to the contracts at issue. N. Side
Lumber Co. v. Block, 753 F.2d 1482, 1484 (9th Cir. 1985).
DISCUSSION
I. The Application of ELIHPA to the Loans
Schroeder first argues that ELIHPA does not apply to her
Loans because (A) the final attempted payment on the Loans
was not a “prepayment,” which triggers ELIHPA’s proce-
7402 SCHROEDER v. UNITED STATES
dures but, rather, a regularly scheduled payment; and (B) ELI-
HPA does not create a new, enforceable restricted-use period.
We address these arguments in turn.
A. Schroeder’s Attempted Payment Constituted a
Prepayment.
Schroeder argues that the Loans’ maturity dates are the
dates by which the total loan balances would be paid based on
the loan documents’ monthly installment schedules (the
installment dates). Using this approach, she maintains, her
1975 and 1984 loans matured in 1995 and 1993, respectively,
and thus, her 2004 attempted payment was not a “prepay-
ment” under ELIHPA and should have been allowed.2 The
government contends that the maturity dates are instead the
dates the loan documents identify as the “due and payable”
dates, i.e., 2015 and 2034, respectively (the horizon dates).
[1] Schroeder’s novel argument fails. In interpreting con-
tractual terms under federal common law, we give effect to
the parties’ intentions as ascertained from the terms them-
selves. Flores v. Am. Seafoods Co., 335 F.3d 904, 910 (9th
Cir. 2003) (quoting Klamath Water Users Protective Ass’n v.
Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999)). In this case,
a review of the relevant loan documents reveals that the par-
ties intended the horizon dates, not the installment dates, to
constitute the maturity dates.
2
The government argues that Schroeder is making this argument for the
first time on appeal and, therefore, she has waived it. See O’Rourke v. Sea-
board Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989)
(“[A]ppellate courts will not consider arguments that are not ‘properly
raise[d]’ in the trial courts. . . . [T]he argument must be raised sufficiently
for the trial court to rule on it.” (citations omitted) (second alteration in
original)). Schroeder, however, argued generally before the district court
that she had not tendered a prepayment. We therefore consider the merits
of her argument.
SCHROEDER v. UNITED STATES 7403
[2] First, at the time of the notes’ execution, the horizon
dates were the only dates certain. At that point, the parties
could not have known the exact date by which the monthly
installments would ultimately satisfy the principals because
the dates were subject to unpredictable factors (e.g., the total
rent received from tenants, which in turn determined the inter-
est rate applied to the principal). Therefore, the parties could
not have intended to establish the 1993 and 1995 installment
dates as the maturity dates, because they could not have
known that the principals would be satisfied on those dates.
[3] Second, Schroeder’s interpretation linking the install-
ment dates to the maturity dates would effectively nullify the
prepayment clause. The promissory notes’ clauses explicitly
permit prepayments at the borrower’s option. Therefore,
under Schroeder’s theory, the final payments would necessar-
ily coincide with—indeed, they would establish—the maturity
dates. Under this reading, no final payment could constitute
a prepayment, and the language permitting prepayments
would essentially be a nullity. Consistent with common law
principles of contract interpretation, we assume that the agree-
ment’s drafters did not intend such a result. Cf. Matsuo
Yoshida v. Liberty Mut. Ins. Co., 240 F.2d 824, 827 (9th Cir.
1957) (declining to interpret agreement so as to render clause
a nullity); 17A C.J.S. Contracts § 303.
[4] Third and finally, under common law property stan-
dards, a mortgage instrument’s prepayment clause generally
accompanies, and is distinct from, the specified loan maturity
date. See, e.g., Trident Ctr. v. Conn. Gen. Life Ins. Co., 847
F.2d 564, 566 (9th Cir. 1988); 55 Am. Jur. 2d Mortgages
§ 345. To read the notes to equate the maturity dates with the
final payments under the prepayment clause, as Schroeder
urges, would violate this principle. Thus, common law further
supports our conclusion that the parties intended the loan doc-
uments’ horizon dates, not their installment dates, to consti-
tute the loans’ maturity dates.
7404 SCHROEDER v. UNITED STATES
[5] Having determined as much, it is apparent that
Schroeder’s 2004 payment tender constituted a “prepayment”
under ELIHPA. The regulations interpreting ELIHPA define
a loan “prepayment” as “[p]ayment in full of the outstanding
balance on an Agency loan prior to the note’s originally
scheduled maturity date.” 7 C.F.R. § 3560.11. Schroeder cites
no authority contrary to this reasonable regulatory interpreta-
tion, to which we must defer, see Chevron U.S.A., Inc. v. Nat-
ural Res. Def. Council, 467 U.S. 837 (1984). Therefore,
because the “note[s’] originally scheduled maturity date[s]”
were in 2015 and 2034, respectively, Schroeder’s 2004
attempted payment constituted a prepayment under the appli-
cable regulations.
The Eighth Circuit recently confronted a similar scenario
and came to the same conclusion. See Charleston Hous. Auth.
v. U.S. Dep’t of Agric., 419 F.3d 729, 739 (8th Cir. 2005)
(reasoning that “[p]ermitting a Section 515 debtor who has
made substantial prepayments to label a final payment thirty
years prior to the original maturity date as anything other than
a prepayment would be to elevate technical form over sub-
stance”). To hold otherwise, the Charleston Housing Author-
ity court concluded, “would create a loophole in [ELIHPA’s]
prepayment restrictions large enough [to] swallow all of Con-
gress’s clearly expressed intent.” Id.3
[6] We therefore conclude that Schroeder’s final payment
tender in 2004 was not a final payment, but a prepayment. As
3
Charleston Housing Authority’s interpretation of the “unmistakability
doctrine” differed from our approach in Kimberly. See DBSI/TRI, 465 F.3d
at 1041 n.7 (noting that, contrary to our conclusion in Kimberly, Charles-
ton Housing Authority held that the “unmistakability doctrine did bar the
owners’ attempts to circumvent ELIHPA in prepaying Section 515 loans);
Kimberly, 261 F.3d at 869 (noting that the doctrine allows “the Govern-
ment to make agreements that bind future Congresses, but only if those
contracts contain an unmistakable promise” (internal quotation marks
omitted)). However, we have never taken issue with Charleston Housing
Authority’s view on the meaning of prepayment under ELIHPA.
SCHROEDER v. UNITED STATES 7405
a result, it was subject to the terms—including the elaborate
procedural requirements—of ELIHPA that govern prepay-
ments.
B. ELIHPA Created a New Restricted-Use Period.
[7] Schroeder next contends that ELIHPA does not extend
the Loan Covenant and, thus, she had the right to pay the bal-
ance on her Loans as of September 2004. The relevant provi-
sion in the 1984 deed of trust states:
The borrower and any successors in interest agree to
use the housing for the purpose of housing people
eligible for occupancy as provided in Section 515 of
Title V of the Housing Act of 1949 and FmHA regu-
lations then extant during this 20 year period begin-
ning August 31, 1984. No person occupying the
housing shall be required to vacate prior to the close
of such 20 year period because of early repayment.
Thus, Schroeder contends, she was free to discontinue offer-
ing § 515 housing upon the expiration of the aforementioned
twenty-year period. Schroeder’s argument, however, over-
looks the fact that the deed of trust is not the only document
imposing obligations on the use of the property; the loan
agreement, which she voluntarily executed in 1984, imposes
additional restrictions. That agreement requires her to use the
property as low-income housing “so long as the loan obliga-
tion remains unsatisfied.” Under ELIHPA, Schroeder may not
repay the loans—and thus the “loan obligation [will]
remain[ ] unsatisfied”—until either: (1) she completes the pre-
payment procedures outlined in ELIHPA; or (2) the loan
period expires. See Franconia, 536 U.S. at 143. Thus, until
one of these events occurs, Schroeder is bound to continue
using her property as low-income housing.
[8] It is undisputed that Schroeder has not completed ELI-
HPA’s procedures and that the latter of the Loan terms will
7406 SCHROEDER v. UNITED STATES
not expire until 2034. Therefore, Schroeder is still bound by
the requirements, as imposed by the loan agreement and ELI-
HPA, to use the property as low-income housing. The district
court did not err in so holding.
II. The District Court Did Not Abuse its Discretion in
Declining to Quiet Title to Schroeder’s Property.
Finally, Schroeder argues that the district court abused its
discretion in declining to quiet title to her property. As stated
above, because this suit involves contracts with the federal
government, federal common law applies. See Clearfield
Trust Co. v. United States, 318 U.S. 363, 366 (1943); N. Side
Lumber Co., 753 F.2d at 1484.
We assume, without deciding, that a quiet title remedy is
available to Schroeder under federal common law. See Kim-
berly Assocs., 261 F.3d at 870. But see DBSI/TRI, 465 F.3d
1041 (questioning scope and validity of Kimberly). Even
under this assumption, however, we conclude the district
court did not abuse its discretion in declining to grant that
relief.
[9] First, equitable relief is not appropriate where an ade-
quate remedy exists at law. Mort v. United States, 86 F.3d
890, 892 (9th Cir. 1996) (“‘It is a basic doctrine of equity
jurisprudence that courts of equity should not act . . . when the
moving party has an adequate remedy at law . . . .’ ” (quoting
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381
(1992))). Here, as the district court rightly determined, an ade-
quate remedy exists. The Supreme Court has made clear that,
by prohibiting unfettered prepayment, ELIHPA “effected a
repudiation of” existing loan contracts. Franconia, 536 U.S.
at 143; see also Franconia, 61 Fed. Cl. at 740. Therefore,
Schroeder may seek compensation for that repudiation in the
Court of Federal Claims under the Tucker Act, 28 U.S.C.
§ 1491. See DBSI/TRI, 465 F.3d at 1041 & n.8 (“[T]he
Supreme Court noted the availability of a damages action
SCHROEDER v. UNITED STATES 7407
under the Tucker Act to compensate owners for contracts
breached because of ELIHPA.” (citation omitted) (citing
Franconia, 536 U.S. 129)).
[10] Second, Schroeder has not shown that the equities
favor relief. In declining to grant equitable relief, the district
court concluded that “the importance of preserving that which
ELIHPA seeks to preserve (i.e., a reduction in Section 515
mortgage repayments, a reduction in the loss of low-income
housing units, and a reduction in the displacement of Section
515 residents) outweighs the burden to Plaintiff of complying
with ELIHPA.” We agree.
CONCLUSION
For the reasons stated above, the district court did not err
in holding that ELIHPA applies to Schroeder’s property.
Moreover, the district court did not abuse its discretion in
declining to quiet title to Schroeder’s property.
AFFIRMED.