1Because Alphonso Jackson is sued in his official capacity,

HUD is the defendant.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Brook Village North Associates

v. Civil No. 06-cv-46-JD

Opinion No. 2008 DNH 001

Alphonso Jackson, Secretary

United States Department of

Housing and Urban Development

O R D E R

Brook Village North Associates ("Brook Village") brought

suit seeking a declaratory judgment that it is entitled to prepay

its mortgage loan held by the Federal National Mortgage

Association ("Fannie Mae") and that the United States Department

of Housing and Urban Development ("HUD") lacks authority to

interfere with Brook Village's prepayment. The parties have

entered a stipulation of dismissal as to all claims against

Fannie Mae, leaving HUD as the sole defendant.1 Brook Village

and HUD have filed cross motions for summary judgment.

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 1 of 14
2The factual background in this case is not disputed.

2

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). When, as here, the parties submit cross motions for

summary judgment in a non-jury case on stipulated or materially

undisputed facts, the case is submitted and the court must

determine the inferences to be drawn from those facts. See

Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 643-44

(1st Cir. 2000). 

Background2

Brook Village North Associates ("Brook Village") is a

limited partnership that owns Brook Village North Apartments

("Apartments"). The Apartments project is a multi-family complex

of 160 rental units located in Nashua, New Hampshire. Brook

Village obtained financing for the Apartments under Section 236

of the National Housing Act, and signed a mortgage loan note on

November 4, 1971, in the amount of $3,446,500. The mortgage loan

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 2 of 14
3

note is now held by Fannie Mae. Pursuant to Section 236, HUD

insured the mortgage loan but is not a party to the note. 

 On November 4, 1971, Brook Village and HUD entered a rent

supplement contract under which HUD paid Brook Village rent

supplements on behalf of low income tenants in an amount that was

estimated to be enough to assist tenants in approximately 32 of

the Apartments' 160 units. Brook Village has not billed HUD and

has not received rent supplement payments since February of 1998. 

Under the terms of the mortgage loan note, Brook Village can

prepay its mortgage loan without HUD approval based on the

following requirements: (1) if it is a limited dividend entity,

(2) which is not receiving payments from HUD under a rent

supplement contract, and (3) it is twenty years or more since the

date of HUD's endorsement of the note. The parties agree that

Brook Village satisfies the first and third requirements. They

dispute the requirement that Brook Village "is not receiving

payments . . . under a rent supplement contract."

In June of 2000, Brook Village asked HUD officials in New

Hampshire if it were eligible to prepay the loan without HUD

approval. In July, Cecile Chabot, HUD's New Hampshire employee

who was overseeing the Apartments' operations, told Brook Village

that it was eligible to prepay the loan. Based on that advice,

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 3 of 14
3Section 236.30, which governed Section 236 loans, is no

longer printed in the Code of Federal Regulations. The parties

agree to the language of the section but disagree as to its

meaning. 

4

Brook Village gave the required notices, obtained financing to

prepay the loan, and had surveys and other work done. 

In January of 2001, before the prepayment was made, HUD

notified Brook Village that it would not approve prepayment

unless Brook Village agreed to continue the rental restrictions

that were imposed under Section 236. Brook Village and HUD

entered into negotiations on their differing positions about

prepayment until August of 2005, when Brook Village again

provided the required notices of its intent to prepay the loan. 

When the prepayment was tendered, however, in January of 2006,

the holder of the note refused to accept it, having been told by

HUD that prepayment was denied. Brook Village filed suit in

February of 2006.

 HUD previously moved to dismiss Brook Village's suit based

on HUD's interpretation of the phrase "the mortgagor is not

receiving payments . . . under a rent supplement contract," which

is part of 24 C.F.R. § 236.30(a)(1).3 HUD argued that its

approval was required for prepayment as long as funds were

available to provide rent supplements, whether or not HUD was

actually making supplemental payments to Brook Village. Brook

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 4 of 14
5

Village relied on the same phrase, included as Rider A in its

mortgage loan note, and argued that it was entitled to prepay the

loan because it was no longer receiving supplemental payments. 

Following the Tenth Circuit's well-reasoned decision on the

same issue, Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256 (10th

Cir. 2004), this court concluded that the disputed phrase was not

ambiguous and had a plain and ordinary meaning. See Order, Nov.

1, 2006, at 11-13. In that order, the court held that the phrase

means that the condition for prepayment is satisfied if the

mortgagor is not receiving payments under a rent supplement

contract. Id. Because Brook Village stated a claim for

declaratory judgment based on its interpretation of the disputed

phrase, HUD's motion to dismiss was denied. 

Discussion

In support of its motion for summary judgment, Brook Village

contends that it is entitled to prepay its mortgage loan without

HUD approval under the Departments of Veterans Affairs and

Housing and Urban Development, and Independent Agencies

Appropriations Act, Public Law No. 105-276, § 219, 112 Stat.

2461, 2487-2488 (1998) ("Section 219"). Alternatively, Brook

Village contends it has met the requirements for prepayment under

the terms of the mortgage loan note, Rider A, and the same

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 5 of 14
4Although the same issue was decided against HUD in denying

HUD's motion to dismiss, it must be addressed again because the

law of the case doctrine does not apply to interlocutory orders,

such as a denial of a motion to dismiss. Harlow v. Children's

Hosp., 432 F.3d 50, 55 (1st Cir. 2005).

6

requirements under 24 C.F.R. § 236.30. HUD moves for summary

judgment on the ground that § 236.30 governs the right to prepay

without HUD approval and argues that the phrase "not receiving

payments . . . under a supplemental contract" is ambiguous and

should be interpreted to mean that a mortgagor is not eligible

for prepayment as long as eligible tenants exist and funds are

available for payments under the rent supplement contract.4

The parties dispute focuses on the meaning of the phrase

"not receiving payments . . . under a supplemental contract"

which is used in the prepayment regulation, § 236.30(a)(1)(I),

and in the prepayment provision of Brook Village's mortgage note.

The context in which the phrase is construed affects the standard

that would apply. See Aspenwood, 355 F.3d at 1259. If the

phrase is construed as part of the mortgage note, as Brook

Village urges, ordinary principles of contract interpretation

would govern and no deference would be afforded HUD's

interpretation of the phrase. See id. at 1260. On the other

hand, if the phrase is interpreted as part of § 236.30(a)(1)(I),

HUD's interpretation is entitled to substantial deference and

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 6 of 14
5Section 219 provides as follows:

(a) Prepayment Right.-- Notwithstanding [prior acts],

subject to subsection (b), with respect to any project

that is eligible low-income housing (as that term is

defined in section 229 of the Housing and Community

Development Act of 1987)--

(1) the owner of the project may prepay, and the

mortgagee may accept prepayment of, the mortgage on the

project, and

(2) the owner may request voluntary termination of a

7

would be given controlling weight "unless it is plainly erroneous

or inconsistent with the regulation." Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994); accord Aspenwood, 255 F.3d at

1261.

A. Section 219

The complex statutory and regulatory history that pertains

to Section 236 housing projects has been thoroughly reviewed in

other cases and need not be set forth here. See Ciengega Gardens

v. United States, 503 F.3d 1266, 1270-73 (Fed. Cir. 2007);

Independence Park Apartments v. United States, 449 F.3d 1235,

1237 (Fed. Cir. 2006); Aspenwood Investment Co. v. Martinez, 355

F.3d 1256, 1257 (10th Cir. 2004). It is undisputed that Section

219 provides a prepayment right for owners of Section 236 housing

projects.5 See Cienega Gardens, 503 F.3d at 1274 n.8. Brook

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 7 of 14
mortgage insurance contract with respect to such

project and the contract may be terminated

notwithstanding any requirements under sections 229 and

250 of the National Housing Act.

(b) Conditions. --Any prepayment of a mortgage or

termination of an insurance contract authorized under

subsection (a) may be made --(1) only to the extent

that such prepayment or termination is consistent with

the terms and conditions of the mortgage or mortgage

insurance contract for the project;

(2) only if the owner of the project involved agrees

not to increase the rent charges for any dwelling unit

in the project during the 60-day period beginning upon

such prepayment or termination; and

(3) only if the owner of the project provides notice of

intent to prepay or terminate, in such form as the

Secretary of Housing and Urban Development may

prescribe, to each tenant of the housing, the

Secretary, and the chief executive officer of the

appropriate State or local government for the

jurisdiction within which the housing is located, not

less than 150 days, but not more than 270 days, before

such prepayment or termination . . . .

8

Village contends that it is entitled to prepay its mortgage loan

note by meeting the requirements of Section 219, while HUD

contends that its regulation governing prepayment, 24 C.F.R. §

236.30(a)(1)(I), governs prepayment.

Brook Village contends that it need only satisfy the

conditions imposed by § 219(b) to be entitled to prepay its

mortgage loan without HUD approval. HUD argues that § 219

applies after an owner is entitled to prepay the note without HUD

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 8 of 14
9

approval, which must be determined under § 236.30. Under HUD's

interpretation of § 236.30(a)(1)(I), Brook Village would not be

eligible to prepay the note without HUD's approval.

The prepayment right provided in § 219 applies to "any

project that is eligible for low-income housing." Pub. L. No.

105-276, § 219, 112 Stat. at 2487. The term "low-income housing"

is defined for purposes of § 219, in pertinent part, as:

housing financed by a loan or mortgage– (A) that is– .

. . (iii) insured, assisted, or held by the Secretary

or a State or State agency under section 1715z-1 of

this title . . . and (B) that, under regulation or

contract in effect before February 5, 1998, is or will

within 24 months become eligible for prepayment without

prior approval of the Secretary. 

12 U.S.C.A. § 4119(1). Therefore, to use § 219, Brook Village

must be within 24 months of becoming eligible for prepayment

without HUD approval under either a regulation or a contract that

was in effect before February 5, 1988. 

Brook Village asserts that it is eligible for prepayment

without HUD approval based on Rider A to its mortgage note, which

is a contract that was in effect before February 5, 1988. HUD

insists that Brook Village must meet the requirements of §

236.30(a), a regulation in effect before February 5, 1988. The

parties' differing positions requires an examination of the

language used in the definition of "low-income housing" in §

4119(1). 

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 9 of 14
10

The pertinent part of the definition provides that "lowincome housing" is that which will become eligible for prepayment

without HUD approval "under regulation or contract in effect

before February 5, 1998." § 4119(1) (emphasis added). Brook

Village relies on the contract segment while HUD relies on the

regulation segment. The plain language of § 4119(1) offers both

bases, that is, an owner could be eligible for prepayment without

HUD approval, by satisfying an applicable regulation or by

satisfying the terms of a qualifying contract. Therefore, if

Brook Village would be eligible for prepayment without HUD

approval under the terms of a contract in effect before February

5, 1998, it meets the definition and can use the prepayment

option under § 219.

Brook Village asserts without opposition from HUD that Rider

A to its mortgage note is a contract that was in effect before

February 5, 1988. Rider A allows Brook Village to prepay the

note without HUD approval as long as Brook Village is "a limited

dividend entity which is not receiving payments from [HUD] under

a rent supplement contract . . . and the prepayment occurs after

the expiration of (20) years from the date of final endorsement .

. . ." Pl. Mot. S.J., Levin Aff. Ex.1. The parties agree that

Brook Village is a limited dividend entity and that more than

twenty years have passed since the final endorsement on the

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 10 of 14
11

mortgage note. Brook Village received its last payment from HUD

under the rent supplement contract in February of 1998 and is not

receiving payments from HUD now. 

The phrase "is not receiving payments from [HUD] under a

rent supplement contract" has a plain, ordinary, and obvious

meaning. Aspenwood, 355 F.3d at 1260. Because Brook Village

received its last payment in 1998, it is not now receiving

payments under a rent supplement contract, and the circumstances

here satisfy the requirements of Rider A. See id. at 1260-61.

Therefore, Brook Village is eligible to prepay its mortgage note

without HUD approval under the terms of Rider A and can proceed

under § 219. 

B. Section 236

In the alternative, the court will also consider HUD's view

that Brook Village would have to satisfy § 236.30(a)(1)(I) before

it would be eligible to prepay the note without HUD approval. 

Section 236.30(a)(1)(I) conditions the right to prepay a Section

236 mortgage on showing, inter alia, that "the mortgagor is not

receiving payments from the Commissioner under a rent supplement

contract." HUD asserts that the quoted phrase is ambiguous and

that its interpretation of the phrase is reasonable and entitled

to governing weight.

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 11 of 14
12

HUD argues that the phrase "is not receiving payments"

should be construed to mean "that, even if the owner has ceased

submitting vouchers for Rent Supplement payments to HUD at the

time of the prepayment request, the owner could bill HUD in the

future, so long as there is sufficient funding and there are

eligible Rent Supplement tenants." Def. Mem. S.J. at 12. HUD

interprets the phrase to mean both the actual transfer of money

and eligibility to receive payments in the future. In other

words, HUD contends that the phrase does not mean what it says

but instead means that an owner "is receiving payments" if it

might sometime in the future receive payments. 

As is discussed in the context of HUD's motion to dismiss

and as was held by the Tenth Circuit, the phrase is not

ambiguous, but instead means what it says. HUD's interpretation

is contrary to the plain meaning of the regulation, is not

reasonable, and is patently erroneous. See Aspenwood, 355 F.3d

at 1261. Therefore, the court rejects HUD's interpretation and

instead adopts the plain meaning of the phrase, which favors

Brook Village. 

C. Absurd Result

In the event it did not prevail on its interpretation of §

236.30(a)(1)(I), HUD asks the court to decline to enforce the

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 12 of 14
13

regulation because such an interpretation "would produce absurd

results contrary to the remedial program." Def. Mem. S.J. at 14. 

HUD argues that Brook Village could achieve a right to early

prepayment by not billing for rent supplements that were due, by

failing to rent units, and by avoiding tenants eligible for rent

supplements in violation of the regulatory requirements for

tenant selection and participation. HUD contends that such a

result would undermine the intent of Section 236 housing

programs. 

If HUD believes that Brook Village violated its obligations

under applicable regulations or the rent supplement contract, HUD

presumably could have brought appropriate action to enforce those

provisions. HUD did not bring any such claims in this case. The

court will not fashion a policy-driven result to achieve measures

that HUD did not directly seek against Brook Village. 

Conclusion

For the foregoing reasons, the plaintiff's motion for

summary judgment (document no. 48) is granted. The defendant's

motion for summary judgment (document no. 50) is denied.

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 13 of 14
14

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 4, 2008

cc: Elliott Berry, Esquire

Michael G. Perez, Esquire

T. David Plourde, Esquire

Andrew W. Serell, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Case 1:06-cv-00046-JD Document 56 Filed 01/04/08 Page 14 of 14