RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0175p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

N ATIONAL C REDIT U NION A DMINISTRATION B OARD , acting in its capacity as liquidating agent for St. Paul Croatian Federal Credit Union, Plaintiff-Appellee/Cross-Appellant (14-4297 & 15-3324), Plaintiff-Appellant (17-3162),

v

.

S TAN J URCEVIC ,

Defendant-Appellant/Cross-Appellee (14-4297 & 15-3324), Defendant-Appellee (17-3162),

B ARA J URCEVIC ; S TACK C ONTAINER S ERVICE , I NC ., Defendants-Appellees (17-3162). ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 14-4297/ 15-3324/ 17-3162

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:14-cv-00926—Donald C. Nugent, District Judge. Argued: August 3, 2017 Decided and Filed: August 11, 2017 Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

_________________ COUNSEL

ARGUED: Timothy J. Fitzgerald, KOEHLER FITZG ERALD LLC, Cleveland, Ohio, for Stan Jurcevic in 14-4297, 15-3324, and 17- 3162 and for Bara Jurcevic an d Stack Container Service, Inc. in 17-3162. Gregory G. Rapawy, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Nationa l Credit Union Admini stration Board in 14- 4297, 15-3324, and 17-3162. ON BRIEF: Timothy J. Fitzgerald, KOEHLER FITZGERALD LLC, Cleveland, Ohio, for Stan Jurcevic in 14-4297, 15-3324, and 17-3162 and for Bara Jurcevic and Stack Container Service, Inc. in 17-3162. Gregory G. Rapawy, David C. Frederick, Daniel V. Dorris, KELLOGG, HUBER, HAN SEN, TODD, EVANS & FIGEL, P.L.L.C., 

### >Nos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 2

Washington, D.C., for National Credit Uni on Administration Boar d in 14-4297, 15-3324, and 17-3162.

_________________ OPINION

_________________ SUTTON, Circuit Judge. The National Cred it Union Administration Board accused Stan and Bara Jurcevic and their privately owned co mpany, Stack Container Service, of fraudulently obtaining loans from St. Paul Croatian Federal Cr edit Union. In response, the district court enjoined Stan Jurcevic from disposing of all of his assets, save living expenses, before the trial over these allegations. It also dismissed the Boar d’s tort claims as time barred under the relevant federal statute and dismissed its unjust enrichme nt claims against Bara Jurcevic and Stack Container as insufficiently pl eaded. Both sides appealed.
Because the district court properly employe d the preliminary injunction factors, we affirm the asset freeze. But because the district court did not consider both potential accrual dates under the limitations statute, we remand for further consideration of the timeliness of the tort claims. And a full review of the Board’s comp laint requires us to reverse the district court’s conclusion as to the unjust enrichment claims ag ainst Bara Jurcevic and Stack Container. We thus affirm in part and reverse in part.

I.
In early 1990, Stan and Bara Jurcevic opene d a joint account at the St. Paul Croatian Federal Credit Union. Unlike traditional lending institutions, credit unions operate as “cooperative[s]” where account holders own shares of the company as credit union “members.” R. 38 at 3. The National Credit Union Administration Board char ters and insure s these unions, safeguarding members in the event of collapse. See 12 U.S.C. §§ 1766, 1786(h), 1787. In times of trouble, the Board has authority to place a cred it union into conservatorship, a status akin to a Chapter 11 bankruptcy reorganization. If things get worse, it may liquidate the credit union, a process akin to a Chapter 7 liquidation. Though th e Board can appoint anot her entity (such as a state regulator) to serve as c onservator for any credit union or liquidating agent for any non-Nos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 3

federally insured credit union, only the Board itself may liquidate an insolvent federally insured credit union. See Id. §§ 1786(h), 1787(a )(1)(A), (3).
From 1996 to 2010, Stan Jurcevic obtained over $1.5 million in share-secured personal loans from St. Paul. At the end of this fourte en-year period, Jurcevic owed about $1.7 million to the credit union. Around this tim e, federal auditors discovered that St. Paul’s Chief Operating Officer, Anthony Raguz, had been accepting bribes in exchange for issuing loans and disguising unpaid loan balances. After revealing this scheme and discovering the credit union’s insolvency—the union had over $200 million in unpaid debts—the National Credit Union Administration Board placed St. Paul into conservatorship and eventually liquidated its remaining assets.
According to the Board, Stan Jurcevic shared in the spoils that led to St. Paul’s demise. Jurcevic allegedly misrepresented some facts and omitted others on multiple loan applications and engaged in other misbehavior at St. Paul’s expe nse. The Board claims that Jurcevic failed to disclose a two and a half million dollar business loan from PNC Bank that he guaranteed; an impending decrease in his business income; and the fact that he pl anned to use the loan funds to prop up Stack Container Service, a business he owned and operated. The Board also accused Jurcevic of failing to keep suffi cient funds in his share account and colluding with his wife and others at St. Paul to obtain fr audulent loans, some of which the Jurcevics used to kite prior outstanding loan balances. Consistent with the Board’s fears, PNC obtained a $2 million judgment against Jurcevic and Stack C ontainer for the unpaid business loan. PNC Bank, Nat’l Ass’n v. Stack Container Logistics LLC , No. 14-cv-1336, No. 6 (N.D. Ohio June 26, 2014).
To recover its losses, the Board, standing in th e shoes of St. Paul as its liquidating agent, sued Stan and Bara Jurcevic and Stack Contai ner, alleging fraud (Count 1), conspiracy (Count 2), conversion (Count 3), loan default (Counts 4–12), and unjust enrichment (Count 13). The Board obtained a temporary inj unction, freezing the Jurcevics’ and Stack Container’s assets, except for living expenses, and plac ing the assets under the control of the district court. The district court twice renewed the injunction, and eventually extended it indefinitely.Nos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 4

On the merits, the district court dismissed th e fraud, conspiracy, and conversion claims as time barred. And it dismissed the unjust enrichme nt claims against Bara Jurcevic and Stack Container as a matter of law. Because the rema ining claims did not mention Bara or Stack, the partial dismissal eliminated them from the case.
Jurcevic appealed the orders freezing his a ssets and filed for Chapter 7 bankruptcy. The Board cross-appealed the partial dismissal and intervened in the Chapter 7 proceedings to challenge the discharge of its fraud claims. The bankruptcy court granted the discharge, but stayed the Board’s adversary proceeding cont esting the discharge of its claims pending resolution of the Board’s appeal here.
Before reaching the merits of the Board’s cross-appeal, we rejected it for lack of jurisdiction. The cross-appeal, we held, impermissibly sought re view of a non-final judgment. On remand, the district court with the agreement of the parties en tered partial final judgment on the dismissed claims under Civil Rule 54(b), wh ich allows the immediat e appeal of piecemeal claims. The appeal and cross-appeal now appear before us.

II.
Preliminary injunction . Stan Jurcevic asks us to thaw his frozen a ssets on the ground that the district court abused its discretion in seizin g them. For what it is worth, he does not claim that the asset forfeiture violates due process or interferes with his abi lity to secure competent council. See Luis v. United States , 136 S. Ct. 1083, 1096–97 (2016) (T homas, J., concurring in the judgment). We have jurisdiction over an a ppeal from a preliminary injunction. 28 U.S.C. § 1292(a).
The Financial Institutions Reform, Recovery, and Enforcement Act authorizes a court to issue, “at the request of the Boar d,” “an order in accordance with Ru le 65 of the Federal Rules of Civil Procedure, including an order placing th e assets of any person designated by the Board under the control of the court and appointing a trustee to hol d such assets.” 12 U.S.C. § 1787(b)(2)(G). Rule 65 normally requires the court to balance four familiar preliminary injunction factors: (1) the likelihood of succe ss on the merits; (2) irreparable harm absent injunctive relief; (3) subs tantial harm to others from the pr oposed injunction; and (4) the broaderNos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 5

public interest. Washington v. Reno , 35 F.3d 1093, 1099 (6th Cir. 1994). But the Act says that Rule 65 applies in this context “without regard to the requiremen t . . . that the applicant show that the injury, loss, or damage is irreparable and immediate.” 12 U.S.C. § 1787(b)(2)(H). Here, then, we gauge a revised four factors: likelihoo d of success, any harm to the Board (irreparable or otherwise), harm to the enjoined party, and the public interest.
None of these factors is a prerequisite to injunctive relief. Flight Options, LLC v. Int’l Bd. of Teamsters, Local 1108 , 863 F.3d 529, 529 (6th Cir. 2017); Leary v. Daeschner , 228 F.3d 729, 736 (6th Cir. 2000); Reno , 35 F.3d at 1099. The charm of balancing tests for some, and the curse for others, is that they ineffably permit the balancing to occur in all manner of ways. It’s a balance of four factors, not a mandate that all four factors exist. While the absence of one factor—say harm to a moving pa rty—may weigh heavily in the balance, it does not dictate the balance.
We may overturn an injunction of this kind only where the district court abused its discretion, an inquiry that has an equivocal component of its own. If a court relied on clearly erroneous facts, an inquiry weight ed in favor of the district cour t, that amounts to an abuse of discretion. But if the court applied the wrong lega l standard, an inquiry we ighted in favor of no one, that too amounts to an abuse of discretion. Hunter v. Hamilton Cty. Bd. of Elections , 635 F.3d 219, 233–34 (6th Cir. 2011). Neither sort of error occurred here.

The Board established a likelihood of success on the merits of several claims. It showed that Jurcevic owed, but had not paid, his outstanding debts to St. Paul (Counts 4–12, loan default). It showed that Jurcevic omitted key facts from several loan applications (Counts 1, fraud, and 3, conversion). And it showed that he and his company kept this fraudulently obtained money (Count 13, unjust enri chment). Jurcevic offered no evidence to contradict these facts.
Two of the three remaining fact ors also favored the Board. Ju rcevic had other creditors, a history of underhanded financia l conduct, and a rapidly evaporat ing pool of assets—a looming lot of fiscal risks confirmed by his eventual bankruptcy. The Bo ard thus established that theNos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 6

absence of a freeze risked harm, perhaps even of th e irreparable variety. It had every reason to ensure that Jurcevic had some assets to sati sfy its claims at the end of the litigation.
The public interest also favored the Board. A failure to recover these debts would force all credit union members to foot the bill, incr easing their premiums and borrowing costs.
The court did not err in finding that these factors cumula tively outweighed the (doubtless) serious burden on Jurc evic, particularly given the in junction’s excep tion for his dayto-day expenses.
Not even Jurcevic claims that the Board is unlikely to succeed on its loan default and unjust enrichment claims. He argues instead th at § 1787 injunctions require fraud, something not found in these collection-based claims. But the te xt of § 1787 nowhere mentions fraud. It grants courts the authority to issue “an order in accord ance with Rule 65” as to “any person designated by the Board.” 12 U.S.C. § 1787(b)(2)(G).
FDIC v. Floyd , 827 F. Supp. 409 (N.D. Tex. 1993), cannot fill this gap. It’s an out-ofcircuit district court case and o ffers no textual ground for this pos ition to boot. One circuit has already rejected the decision. FDIC v. Garner , 125 F.3d 1272, 1278 (9th Ci r. 1997). Now there
are two.
Jurcevic complains that the dist rict court denied him an evid entiary hearing. Not so. The court held a hearing in response to his request. While the hear ing took place after the court issued the initial in junction, that first injunction expired l ong ago. Jurcevic had an opportunity to present contradictory testimonial evidence before the existing injunction but opted not to do so. There was no error in that.
But isn’t the injunction now moot given th e bankruptcy discharge, Jurcevic asks? Because the bankruptcy court discharged his non- fraud related debts and because the district court dismissed the Board’s fraud, conversion, and conspir acy claims as time-barred, he reasons, there must be no merit to the Board’s remaining positions. But that assumes too much in two ways. It assumes that the Board’ s appeal has no legs, an issue to be decided not by Jurcevic but by this court in the pages ahead. And it assu mes that the bankruptcy court cannot considerNos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 7

fraudulent conduct, as required by the Bankruptcy C ode as opposed to state law, in determining whether to discharge hi s debts to St. Paul. See Brown v. Felsen , 442 U.S. 127, 138 (1979). The Board’s claims for repayment may or may not fall under the fraud excep tion to the bankruptcy discharge rules and that possibi lity may or may not turn on wh ether the claims are time barred.

III.
The Board’s cross appeal seeks to reinstate th e dismissed claims against the Jurcevics and Stack Container. Before addressing the point, we must establish our jurisdiction to do so.

Jurisdiction . A district court ruling th at disposes of some claims or parties typically is not “final,” as required by 28 U.S.C. § 1291. See Flanagan v. United States , 465 U.S. 259, 263 (1984). Civil Rule 54(b) creates an exception. It allows a distri ct court to reroute the normal appellate course when, as happens from time to ti me, the benefits of immediate appeal outweigh its costs. See Adler v. Elk Glenn, LLC , 758 F.3d 737, 739 (6th Cir. 2014) (Sutton, J., concurring).
Under the rule, a district court may “direct en try of a final judgment as to one or more, but fewer than all, claims or parties . . . if th e court expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). That prompts two questions: Did the district court enter judgment as to “one or more, but fewer th an all” claims? And did the district court appropriately determine that there was “no just reason for delay,” accounting for the relationship between the claims, the possibility that the appeal might become moot, the possibility of repeat adjudications, the existence of pot ential counterclaims, and the existe nce of other factors such as expense, delay, economic solvency, trial length, and frivolity of the claims? Lowery v. Fed. Express Corp. , 426 F.3d 817, 821–22 (6th Cir. 2005). We look at the first question with fresh eyes, the second with deferential ones. Planned Parenthood Sw. Ohio Region v. DeWine , 696 F.3d 490, 500 (6th Cir. 2012).
The answers to both questions favor an immedi ate appeal. The district court dismissed the Board’s fraud, conversion, and conspiracy claims against all defendants and the unjust enrichment claims against Bara Jurcevic and Stack C ontainer. But it left in place the loan default and unjust enrichment claims against Stan Jurcevic . Those are distinct claims based on distinctNos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 8

events: unlawful inducement of the loan funds and unlawful rete ntion of those funds. Nor can we say that the district court abused its discretion in finding no reason for delay after balancing the remaining factors. The legal arguments under pinning the Board’s appellate claims had little to do with the remaining ones. The Board and Ju rcevic had fully briefed the issues on appeal before the court made its Rule 54 determination. And if the Boar d prevailed on appeal, a revival of the once-dismissed claims woul d streamline the trial proceedings.
Statute of limitations . Section 1787(b)(14) supplies the limitations period for “any action brought by the Board as conservator or liquidating ag ent.” 12 U.S.C. § 1787(b)(14)(A). For tort claims, it grants “the longer of” two potential pe riods: (1) three year s or (2) “the period applicable under State law.” Id. Because Ohio provides a four-y ear statute of limitations for fraud and conversion claims, it amounts to “the longer of” the two periods. Ohio Rev. Code § 2305.09.

The statute also addresses when the limitati ons clock starts. It again provides two options, and it again uses “the late r of” the two dates. “[T]he statute of lim itation begins to run,” says the statute, on “the later of (i) the date of the appointment of the Board as conservator or liquidating agent; or (ii) th e date on which the cause of action accrues.” 12 U.S.C. § 1787(b)(14)(B). Under Ohio law, this kind of ac tion accrues on the date the victim uncovers or reasonably should have uncovere d the wrongdoing, often called the “discovery rule.” Inv’rs REIT One v. Jacobs , 546 N.E.2d 206, 209 (Ohio 1989).
The statute thus offers two potential starts dates. The first focuses on the date of appointment of the Board. The second looks to the date the cause of action accrued, which in this instance turns on Ohio’s “discovery rule.” Id. The district court ruled that the Board failed to satisfy the time limits under the date-of-appointment option and sa w no need to reach the dateof-accrual option because the Board did not addr ess the question of accrual in its complaint.
We see no imperative at this stage in th e case to resolve the intricate statutory interpretation question presented by the date-of-appointment option. Compare Nat’l Credit Union Admin. Bd. v. Credit Suisse Secs., LLC , 939 F. Supp. 2d 1113, 1125 (D. Kan. 2013), with In re LIBOR-Based Fin. Instruments Antitrust Litig. , No. 11 MDL 2262 NRB, 2015 WLNos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 9

4634541, at *112–13 (S.D.N.Y. Aug. 4, 2015). But we th ink the district court does indeed have authority to determine the date on which the fraud, conversion, and any other tort claims accrued, and whether they were filed within the four-year limitations period.
The Board filed its complaint on April 29, 2014. To show that these tort claims are time barred, Jurevic thus had to establish that the Board, exercising reasonab le care, discovered or should have discovered his fraudul ent conduct before April 29, 2010.

But the district court inverted this burden. It held that, because the Board did not allege that these claims accrued before April 29, 2010, it could not be so. That’s not how affirmative defenses, such as a statute of limitations, work. Cataldo v. U.S. Steel Corp. , 676 F.3d 542, 547 (6th Cir. 2012). It was Jurcevic’s burden to show that the Board should have discovered his fraudulent conduct before the relevant time pe riod, not the Board’s burden to plead around the possibility.

Because the district court did not address whet her Jurcevic satisfied his burden or proved that the Board’s “complaint affirmatively show[s ] that the claim[s] [were] time-barred,” the district court needs to consider the issue in the first instance. Id. To the extent the resolution of the issue turns on contested questions of fact, some di scovery may be required.
Unjust enrichment . To succeed on its claim for unjust enrichment, the Board had to prove that (1) it conferred a benefit upon Bara Jur cevic and Stack Container; (2) Bara Jurcevic and Stack Container each knew of that benefit; (3 ) they retained the benefit “under circumstances where it would be unjust to do so without payment”; and (4) the re tention of this benefit caused harm to the Board. Andersons, Inc. v. Consol, Inc. , 348 F.3d 496, 501 (6th Cir. 2003) (internal quotation omitted). At bottom, unjust enrichment is an equitable remedy. It seeks to correct what is unjust, not what is unfortunate.
The Board alleged each element. The compla int charges that Bara Jurcevic and Stack Container had access to, and in fact used, the St. Paul loan money (a benefit). It alleges that Bara and Stack knew these funds came from St. Pa ul and “had knowledge of Stan’s material misrepresentations and/or omissions concerning th e St. Paul loan applications” (knowledge of the benefit). R. 38 at 10, 25. It alleges that both defendants conspired with Stan and others at St.Nos. 14-4297/ 15-3324/ 17-3162 Nat’l Credit Union Admin. Bd. v. Jurcevic, et al. Page 10

Paul to help obtain and retain the loans for thei r personal use (unjust rete ntion). And it alleges a causal link between the benefit to Bara and St ack (the additional money) and the Board’s detrimental position (an inability to recover its funds). The facts may not bear out these allegations. But that is neither here nor there. Plausible allegations suffice at the pleading stage.
For these reasons, we affirm the preliminary injunction, vacate as to Counts 1–3, reverse as to Count 13 for Stack Contai ner Service and Bara Jurcevic, and remand for consideration of Jurcevic’s remaining arguments in the first instance.