The opinion of the court was delivered by: BISSELL
This matter comes before the Court on a motion to dismiss, a motion to intervene and a motion to amend the complaint. Plaintiffs Old Bridge Owners Cooperative Corp. ("Owners"), North County Conservancy, Inc. ("North County"), and Grandview Estates of New Jersey, L.P. ("Grandview") filed a complaint on May 25, 1995 against defendants Township of Old Bridge ("Township") and Old Bridge Municipal Utilities Authority ("Utilities"). The complaint seeks both declaratory and injunctive relief.
The property at issue is Sterling Estates, situated in Old Bridge, New Jersey. Sterling Estates is an apartment complex owned and operated by Grandview Estates of New Jersey, L.P. The property is burdened by a first mortgage held by the Federal Deposit Insurance Corporation ("FDIC") as receiver of the first mortgagee. The FDIC acquired its interest in November 1992. The property is also burdened by a second mortgage, currently held by plaintiff North County. (Compl., P 15). North County acquired its interest from the Resolution Trust Corporation ("RTC") when the RTC was the receiver of the second mortgagee. (Id., P 22). The RTC acquired its interest in the property on February 1, 1991 and sold its interest to North County in November 1994. Accordingly, the property has been subject to a federal receivership since February 1, 1991.
The property taxes and water and sewerage charges that have accrued on the property from 1990 through 1995 remain unpaid. Defendants Township and Utilities contend that, because of such delinquencies, the property is burdened with superior tax, water and sewerage liens. It is these liens that plaintiffs seek to have declared void. In the event the liens are declared valid, plaintiffs seek a declaration that the mortgage interests of the FDIC and North County are superior to any tax, water or sewerage lien of the defendants. Furthermore, plaintiffs seek to enjoin the property from being assessed with property taxes or charged water and sewerage fees while the property is in a federal receivership.
Also pending is plaintiff North County's motion to amend the complaint to add claims addressing the permissibility of recalculations and penalties under the federal statute at issue, in addition to claims involving closely related issues of state law. In addition, there exists a state court action filed by WNY Management Corporation ("WNY"), a former receiver of the property, and the FDIC. The defendants in that action are the same as those in the instant case. The state action similarly relates to the propriety of certain water and sewer charges and liens with respect to the property at hand. On October 25, 1995, WNY and the FDIC filed a motion to intervene as plaintiffs in the federal litigation so that they may assert their state claims in this proceeding. However, WNY no longer has an interest in the property and the FDIC is actively seeking to transfer its interest to North County.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. Standard for a Motion to Dismiss
Currently before this Court is a motion to dismiss pursuant to Fed. R. Civ. P. 12(c), as the pleadings are closed. The standard applied to such a motion is the same as that for a motion to dismiss in lieu of an answer under Fed. R. Civ. P. 12(b)(6). Fed. R. Civ. P. 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In disposing of a motion to dismiss, the court operates on the assumption that the factual allegations in the complaint or counterclaim are true. Neitzke, 490 U.S. at 326-27. A motion to dismiss may be granted if the opposing party would not be entitled to relief under any set of facts consistent with the allegations in the complaint or counterclaim. As the Supreme Court stated in Neitzke:
nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon, supra at 73, 104 S. Ct. 2229, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations.
II. Defendants' Motion to Dismiss is Denied
It is undisputed that the real property taxes and water and sewer charges assessed against Sterling Estates for the years 1990 through 1995 remain unpaid. Defendants Township of Old Bridge and the Utilities Board claim to have tax, water and sewerage liens against the property for those debts. (Compl., PP 23, 24). However, because the property has been in a federal receivership since February 1991, plaintiffs assert that no liens could have arisen for debts accruing in that time period and that the liens the defendants claim to have are necessarily void as a matter of law. Plaintiffs do not distinguish between the pre-FDIC assessments and the post-FDIC assessments.
Title 12 U.S.C. § 1825(b)(1) provides:
When acting as a receiver, the following provisions shall apply with respect to the [FDIC] ... the Corporation including its franchise, its capital, reserves, and surplus, and its income, shall be exempt from all taxation imposed by any State, county, municipality, or local taxing authority, except that any real property of the Corporation shall be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed, except that, notwithstanding the failure of any person to challenge an assessment under State law of such property's value, such value, and the tax thereon, shall be determined as of the period for which such tax is imposed.
12 U.S.C. § 1825(b)(1). In simpler terms, the FDIC is exempt from almost all state and local taxation. However, an exception exists to sub-section 1825(b)(1). The FDIC remains liable for the ad valorem taxes assessed against any real property in which the FDIC has an interest. Such an interest arises when the property is part of a federal receivership. "Section 1825(b)(1) requires the payment of taxes on real property which the FDIC holds, so as not to deprive municipalities of the income they would have received had the property continued to be privately owned." Simon v. Cebrick, 53 F.3d 17, 21 (3d Cir. 1995). Therefore, the real property taxes assessed against Sterling Estates, while the property was in federal receivership, accrue and are the statutory responsibility of the FDIC. (Id.; Irving Indep. School Dist. v. Packard Properties, 762 F. Supp. 699, 704 (N.D. Tex. 1991), aff'd, 970 F.2d 58 (5th Cir. 1992).
In addition to real property taxes, delinquent water and sewerage charges are also at issue. An initial question arises as to the scope of permissible taxation under the exception to sub-section (b)(1) and whether the FDIC is liable for water and sewerage charges as it is ...