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    Federal Deposit Insurance Corporation, As Receiver of Franklin National Bank v. Jean M. Grella, Jean M. Grella, 553 F.2d 258, 2d Cir. (1977)

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    This document summarizes a court case regarding a dispute over a ground lease. The Federal Deposit Insurance Corporation (FDIC), acting as receiver for the insolvent Franklin National Bank, sued to prevent the landlord Jean Grella from terminating the ground lease. Grella claimed FDIC did not have standing to sue, as the ground lease was not an asset of FDIC. The district court found FDIC had standing because it could be liable for future lease payments or have an interest in maintaining bank facilities. However, the appeals court reversed, finding issues around whether FDIC in fact had standing or a sufficient interest in the lease to bring the suit that required further examination.

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    Federal Deposit Insurance Corporation, As Receiver of Franklin National Bank v. Jean M. Grella, Jean M. Grella, 553 F.2d 258, 2d Cir. (1977)

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    This document summarizes a court case regarding a dispute over a ground lease. The Federal Deposit Insurance Corporation (FDIC), acting as receiver for the insolvent Franklin National Bank, sued to prevent the landlord Jean Grella from terminating the ground lease. Grella claimed FDIC did not have standing to sue, as the ground lease was not an asset of FDIC. The district court found FDIC had standing because it could be liable for future lease payments or have an interest in maintaining bank facilities. However, the appeals court reversed, finding issues around whether FDIC in fact had standing or a sufficient interest in the lease to bring the suit that required further examination.

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    Filed: 1977-04-05 Precedential Status: Precedential Citations: 553 F.2d 258 Docket: 485

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    Federal Deposit Insurance Corporation, as Receiver of Franklin National Bank v. Jean M. Grella, Jean M. Grella, 553 F.2d 258, 2d Cir. (1977)

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    This document summarizes a court case regarding a dispute over a ground lease. The Federal Deposit Insurance Corporation (FDIC), acting as receiver for the insolvent Franklin National Bank, sued to prevent the landlord Jean Grella from terminating the ground lease. Grella claimed FDIC did not have standing to sue, as the ground lease was not an asset of FDIC. The district court found FDIC had standing because it could be liable for future lease payments or have an interest in maintaining bank facilities. However, the appeals court reversed, finding issues around whether FDIC in fact had standing or a sufficient interest in the lease to bring the suit that required further examination.

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    Federal Deposit Insurance Corporation, As Receiver of Franklin National Bank v. Jean M. Grella, Jean M. Grella, 553 F.2d 258, 2d Cir. (1977)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case regarding a dispute over a ground lease. The Federal Deposit Insurance Corporation (FDIC), acting as receiver for the insolvent Franklin National Bank, sued to prevent the landlord Jean Grella from terminating the ground lease. Grella claimed FDIC did not have standing to sue, as the ground lease was not an asset of FDIC. The district court found FDIC had standing because it could be liable for future lease payments or have an interest in maintaining bank facilities. However, the appeals court reversed, finding issues around whether FDIC in fact had standing or a sufficient interest in the lease to bring the suit that required further examination.

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    of 10

    553 F.

    2d 258

    FEDERAL DEPOSIT INSURANCE CORPORATION, as


    Receiver of
    Franklin National Bank, Plaintiff-Appellee,
    v.
    Jean M. GRELLA et al., Defendants,
    Jean M. Grella, Defendant-Appellant.
    No. 485, Docket 76-7438.

    United States Court of Appeals,


    Second Circuit.
    Argued Jan. 11, 1977.
    Decided April 5, 1977.

    James J. Milligan, Mineola, N. Y. (Sprague, Dwyer, Aspland & Tobin, P.


    C., Mineola, N. Y.), for defendant-appellant Jean M. Grella.
    Amalya L. Kearse, New York City (Hughes, Hubbard & Reed, New York
    City, Susan L. Thorner, New York City, of counsel), for plaintiff-appellee
    Federal Deposit Insurance Corporation, as Receiver of Franklin National
    Bank.
    Jerold Lupoff, Garden City, N. Y. (Wolff & Diamond, Garden City, N.
    Y.), for defendants Lawrence Lever and Lever Holding Corp.
    Before GURFEIN and MESKILL, Circuit Judges, and BARTELS,
    District Judge.*
    BARTELS, District Judge:
    This is an appeal from a declaratory judgment of the United States District
    Court for the Eastern District of New York (Judd, J.) granting summary
    judgment for the Federal Deposit Insurance Corporation ("FDIC") as
    Receiver of the Franklin National Bank ("Franklin") permanently
    enjoining the appellant, Jean M. Grella ("Grella") from terminating a
    certain ground lease originally entered into between Grella as lessor and
    Franklin as lessee but assigned by Franklin to Lawrence Lever ("Lever").
    We reverse and remand to the district court for further proceedings upon

    the jurisdictional issues of whether FDIC has standing to sue upon the
    facts of this case.
    The facts are not in dispute. On April 4, 1961, Grella as fee owner of a
    plot of land in Mineola, New York, leased the premises ("ground lease")
    to Franklin for a term of twenty years with four, twenty-year options to
    renew, at an annual rental of $21,000. The exercise of two of the renewal
    options has extended the present term to the year 2021. The ground lease
    granted Franklin the right to assign or sublet the premises without Grella's
    consent with Franklin remaining liable for the rent and all other
    obligations. Paragraph 10 of the ground lease provides:
    "If the Tenant * * * shall file or there shall be filed against the Tenant a
    petition in bankruptcy or arrangement, or Tenant be adjudicated a
    bankrupt or make an assignment for the benefit of creditors or take
    advantage of any insolvency act, the Landlord may, if the Landlord so
    elects, at any time thereafter terminate this lease and the term hereof, on
    giving to the Tenant five days notice in writing of the Landlord's intention
    so to do * * *."
    In 1962 Franklin subleased the premises to Lever and as a result of several
    subsequent transactions Lever became the assignee of Franklin's interest in
    the ground lease. Thereafter, Lever constructed an office building on the
    site, with a present value in excess of $2 million, and Franklin leased
    space until 1981 in the building for use as a branch banking office
    ("branch lease"). Since 1965 Lever has paid the rent on the ground lease,
    and there is no claim by Grella of default for non-payment.
    On October 8, 1974, the Comptroller of the Currency of the United States
    declared Franklin insolvent and as required by statute appointed FDIC as
    its receiver pursuant to 12 U.S.C. 191 & 1821(c). On the same date
    European-American Bank & Trust Co. ("EAB") entered into a Purchase
    and Assumption Agreement with FDIC to purchase certain of Franklin's
    assets and assume certain of its liabilities, see In Re Franklin Nat'l Bank,
    381 F.Supp. 1390 (E.D.N.Y.1974); and since then EAB has occupied the
    branch office covered by the branch lease. Accordingly, there was no
    interruption of banking services at Franklin's office following the
    declaration of insolvency by the Comptroller.
    Asserting that the declaration of insolvency by the Comptroller constituted
    a default under paragraph 10 of the lease, Grella on February 3, 1975
    notified Franklin as well as others that the ground lease would terminate
    on February 11, 1975. On February 21, 1975, FDIC as receiver of

    Franklin commenced this action against Grella seeking a declaratory


    judgment that the notice of termination was null and void and that the
    ground lease continued in full force and effect, and also an injunction
    preventing Grella from terminating said lease based upon the
    Comptroller's declaration of insolvency and the appointment of FDIC as
    receiver. Prior to the institution of this suit Lever brought a declaratory
    judgment action in New York State Supreme Court, Nassau County,
    against Grella to determine the validity of Grella's termination notice of
    the ground lease. Before the decision by the state court Judge Judd
    rendered his decision whereupon the state court granted judgment for
    Lever against Grella predicated upon the doctrine of collateral estoppel.
    Among other claims of error, Grella contends that FDIC lacks standing as
    receiver to bring this suit, and that there is no controversy between herself
    and FDIC, and that the case is moot.
    While the matter was before the district court Grella offered to deliver to
    FDIC a non-disturbance agreement as regards the branch lease, 1 which
    FDIC promptly rejected. Although this fact is mentioned in the district
    court's opinion there was no discussion or ruling upon its effect or
    relevance to the issues involved. Grella maintains that this offer undercuts
    any interest FDIC has in bringing suit predicated upon its concern for the
    branch lease, and that since the ground lease is neither an asset nor a
    liability of FDIC, it lacks standing to sue. The district court disagreed and
    found that FDIC had sufficient standing or interest to bring the action,
    stating that:
    "If the FDIC is still the Tenant under the ground lease, then it is liable,
    either as receiver or in its corporate capacity, as successor to Franklin for
    future payments under Article 152 of the ground lease in spite of Grella's
    termination of the lease. That fact gives FDIC an interest in the question,
    even if Grella has not yet filed a claim with the receiver."
    Moreover, the district court also agreed with FDIC that FDIC had an
    interest in the ground lease in order to carry out its statutory
    responsibilities explaining that "FDIC has a legitimate public interest in
    establishing the efficacy of transactions which it affects pursuant to its
    statutory duty as receiver of a national bank" which duty includes the
    obligation of FDIC to insure continuation of bank facilities at specific
    locations to induce a healthy bank to buy the assets of an insolvent bank.
    * Essentially, this is a controversy between Grella and Lever involving the
    interpretation of a lease under the New York State real property law.
    Consequently, we must determine the threshold question whether the

    plaintiff has standing to sue. This is a concept which is "among the most
    amorphous in the entire domain of public law."3 Standing depends upon
    whether the plaintiff has " 'alleged such a personal stake in the outcome of
    the controversy' to warrant (its) invocation of federal court jurisdiction
    and to justify exercise of the court's remedial powers on (its) behalf."
    Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d
    343 (1975), citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7
    L.Ed.2d 663 (1962). The Supreme Court in Warth further elaborated:
    "Essentially, the standing question in such cases is whether the
    constitutional or statutory provision on which the claim rests properly can
    be understood as granting persons in the plaintiff's position a right to
    judicial relief." 422 U.S. at 500, 95 S.Ct. at 2206. While standing does not
    depend on the merits of the party's contention that certain conduct is
    illegal, standing does require an injury to the party arising out of a
    violation of a constitutional or statutory provision or other legal right.
    Linda R. S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S.Ct. 1146, 35
    L.Ed.2d 536 (1973); Sierra Club v. Morton, 405 U.S. 727, 732 & n.3, 92
    S.Ct. 1361, 31 L.Ed.2d 636 (1972); Flast v. Cohen, 392 U.S. 83, 99, 88
    S.Ct. 1942, 20 L.Ed.2d 947 (1969). The question is thus posed whether
    FDIC will sustain an injury sufficient to give it standing in the event
    Grella is successful in terminating the lease.
    Under the relevant provisions of the National Bank Act (12 U.S.C.
    191-200) and the Federal Deposit Insurance Act (12 U.S.C. 1811-32)
    Congress has established a complete system for the administration and
    liquidation of insolvent national banks for the benefit of creditors with the
    receiver acting as the administrative agent of the Comptroller of the
    Currency. Cook Co. Nat'l Bank v. United States, 107 U.S. 445, 448, 25
    S.Ct. 561, 27 L.Ed. 537 (1883); In Re Liquidation of American City Bank
    & Trust Co., N. A., 402 F.Supp. 1229, 1231 (E.D.Wis.1975); District of
    Columbia v. Wardell, 32 F.Supp. 769, 771-72 (D.D.C.1940), rev'd on
    other grounds, 74 U.S.App.D.C. 184, 122 F.2d 202, cert. denied, 314 U.S.
    673, 62 S.Ct. 137, 86 L.Ed. 539 (1941). The Acts constitute a complete
    plan for the establishment and government of national banks, Texas &
    Pac. Ry. v. Pottorff, 291 U.S. 245, 253, 54 S.Ct. 416, 78 L.Ed. 777
    (1934); Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 461 (6th Cir.
    1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942),
    under which the receiver has no more powers than those provided by the
    statute. 12 U.S.C. 1821(c) & (d); 12 C.F.R. 4.10(a)(1) & 306.2
    (1976).FDIC's Interest in the Ground Lease
    Numerous authorities have held that the receiver of an insolvent national
    bank appointed by the Comptroller is not an officer of the court but is an

    administrative representative of the Comptroller, and that none of the


    bank's assets, while in the hands of the receiver, are in reality in custodia
    legis but are subject to its administration. Auten v. United States Nat'l
    Bank, 174 U.S. 125, 19 S.Ct. 628, 43 L.Ed. 920 (1899); Hulse v.
    Argetsinger, 18 F.2d 944 (2d Cir. 1927). See Oosterhuis v. Palmer, 137
    F.2d 322, 325 (2d Cir. 1943); Wittnebel v. Loughman, 80 F.2d 222, 224
    (2d Cir. 1935), cert. denied, 297 U.S. 716, 56 S.Ct. 590, 80 L.Ed. 1001
    (1936). While it succeeds to the rights of the creditors of the bank as well
    as the rights of the corporation in connection with the liquidation of the
    bank assets and is charged with the payment of expenses of administration
    and enforcement of the obligations of the bank, the receiver is not subject
    to liability for the provisions of the unexpired term of a lease of the bank
    premises and it may take a reasonable time to adopt or reject the same.
    First Nat'l Bank of Chicago v. First Nat'l Bank of Wheaton, 78 F.2d 502
    (7th Cir.), cert. denied, 296 U.S. 651, 56 S.Ct. 368, 80 L.Ed. 463 (1935).
    See Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 143 (E.D.Mich.1954),
    aff'd, 223 F.2d 265 (6th Cir. 1955). Further, the refusal of an insolvent
    national bank and its receiver to take possession under a long-term lease
    does not entitle the lessor to damages from the bank or its receiver as
    lessee. Fidelity Safe Deposit & Trust Co. v. Armstrong, 35 F. 567
    (C.C.S.D.Ohio 1888). Nor does the appointment of a receiver dissolve the
    insolvent bank, and a suit may be instituted against the bank without
    joining the receiver for a simple money judgment based upon the bank's
    obligations. Bailen v. Deitrick, 84 F.2d 375 (1st Cir.), cert. denied, 299
    U.S. 579, 57 S.Ct. 44, 81 L.Ed. 427 (1936); Luella Hannan Memorial
    Home v. First Nat'l Bank of Detroit, 31 F.Supp. 276, 280
    (E.D.Mich.1940). Cf. Mallis v. Federal Deposit Insurance Corp., No. 767166, slip op. at 1205 & n.2 (2d Cir. Jan. 3, 1977).
    It is central to the plan that a claim against an insolvent national bank in
    receivership cannot be maintained unless the liability of the bank accrued
    and became unconditionally fixed on or before the declaration of
    insolvency. To state it another way, such a claim must be due and owing
    at the time of the insolvency, 12 U.S.C. 194 & 1821(d), otherwise it
    does not constitute a claim against a receiver regardless of what other
    rights the obligee may have. This rule was reaffirmed in Kennedy v.
    Boston-Continental Nat'l Bank, 84 F.2d 592, 597 (1st Cir. 1936), cert.
    dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937), where in
    referring to a lease claim against an insolvent national bank the court said:
    "The amount of the claim may be later established, but, when established,
    it must be the amount due and owing at the time of the declaration of
    insolvency, as of which time it is entitled, with the claims of the other

    creditors, to a ratable distribution of the assets of the bank. If nothing is


    due at the time of insolvency, the claim should not be allowed, for that
    would be in violation of the National Bank Act (12 U.S.C.A. 194)
    calling for a ratable distribution."
    Thus the claim of a lessor of office space of an insolvent national bank for
    the excess of rents reserved over the rental value upon subsequent entry of
    the landlord is not a claim that arose or became fixed until after
    insolvency and is unallowable against the receiver. Boston-Continental
    Nat'l Bank v. Wendell Phillips Co., 84 F.2d 599 (1st Cir. 1936), cert.
    dismissed,300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937); Kennedy v.
    Boston-Continental Nat'l Bank, supra. It is manifest from these authorities
    that the claim of FDIC that it has standing in this suit upon the ground that
    Grella as landlord might have a claim for damages against the FDIC as
    receiver of Franklin arising from the difference between the rental
    reserved under the lease and the reasonable rental value thereunder for the
    balance of the term, is completely without merit. Argonaut Savings &
    Loan Ass'n v. Federal Deposit Insurance Corp., 392 F.2d 195 (9th Cir.),
    cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968), is the
    most recent case that has come to our attention dealing with similar claims
    against receivers of insolvent national banks. There the court relying upon
    the reasoning of Kennedy and the authorities therein cited, recognized the
    right of FDIC to disaffirm a lease and to deny any claim of the landlord
    for rent or damages not due at the time of FDIC's appointment or arising
    thereafter.4
    FDIC's Interest in Branch Lease
    While the branch lease depends upon the validity of the ground lease and
    FDIC as receiver has an option to succeed to Franklin's interest in this
    lease (which, incidentally, it apparently has not exercised), it suggests that
    it would suffer injury if the branch lease were terminated as a result of the
    termination of the ground lease. In support of this claim FDIC maintains
    that it has a statutory obligation to consider the banking needs of the
    community. 12 U.S.C. 1821(d), (f) & (h). We agree with FDIC's
    position concerning its obligation. See Bransilver, Failing Banks: FDIC's
    Options and Constraints, 27 Admin.L.Rev. 327, 333-34 (1975). We
    further agree with its assertion that the viability of purchase and
    assumption agreements with a succeeding bank, such as the one made by
    FDIC with EAB, as an alternative method of winding up the affairs of
    national banks will be threatened if the branch office lease can be
    terminated without affording FDIC the protection necessary to assure the
    continuation of banking services at a particular location. In this case,

    however, the immediate threat to FDIC's occupancy does not come from
    Lever who joins FDIC in maintaining that the ground lease is in full force
    and effect. The real threat to FDIC's occupancy under the branch lease is
    Grella's potential ability to eliminate the same by cancellation if she is
    successful under the ground lease. To offset this possibility Grella has
    tendered to FDIC a non-disturbance agreement as to the branch lease
    which is the equivalent to a covenant of quiet enjoyment in the event
    Grella is successful in terminating the ground lease.
    This offer was promptly rejected. The reason given for the rejection was
    that Grella alone could not guarantee FDIC's continued occupancy since
    paragraph 11 of the branch lease required approval by Lever of any
    assignment of the branch lease. This seems to us to be circular and selfdefeating reasoning since the non-disturbance agreement is predicated
    upon Grella's success in terminating the ground lease, in which event
    Lever's interest in the branch lease would be completely eliminated.5
    Assuming that such a non-disturbance agreement is unconditional and in
    all respects protects the interest of FDIC and its potential assignee EAB
    from any disturbance in continuation of banking business at the premises
    covered by the branch lease, it would follow that the interest of FDIC in
    the continuation of such banking services at the locus is in no way
    threatened by Grella.
    Finally, FDIC argues that it would have standing to sue even if the
    termination of the ground lease posed no threat to its pecuniary interest
    because of its responsibilities as a government agency to protect its
    interests, citing Federal Deposit Insurance Corp. v. Sumner Financial
    Corp., 451 F.2d 898, 904 (5th Cir. 1971); United States v. Arlington
    County, 326 F.2d 929, 931 (4th Cir. 1964); United States v. City of Glen
    Cove, 322 F.Supp. 149, 152 (E.D.N.Y.), aff'd, 450 F.2d 884 (2d Cir.
    1971). We nevertheless believe that the responsibilities of FDIC as set
    forth in the Act, including the protection and enforcement of its policies to
    which we have previously alluded, is amply taken care of by the nondisturbance agreement if delivered. We do not believe that these
    responsibilities and policies can be elaborated or enhanced by vague and
    amorphous generalities. The above cited cases are simply not applicable
    to the factual framework of this case, particularly since there is no policy
    or program of FDIC which is threatened other than those previously
    enunciated.6
    II
    There remains Grella's charge of mootness which apparently is predicated

    upon the hypothesis that FDIC has standing. This concept arises from the
    Article III limitation on the federal judicial power to decide "cases" and
    "controversies." The focus is on the issues and subject matter of the
    controversy and not upon the parties. Mootness on Appeal in the Supreme
    Court,83 Harv.L.Rev. 1672 (1970). While the protection offered by Grella
    to FDIC removes any collateral consequences harmful to FDIC if Grella is
    successful, it does not eliminate or moot the controversy between Grella
    and Lever. It simply deprives FDIC of standing.
    As Chief Justice Warren said in Flast v. Cohen, supra, 392 U.S. at 99, 88
    S.Ct. at 1952:

    1
    "The
    fundamental aspect of standing is that it focuses on the party seeking to get his
    complaint before a federal court and not on the issues he wishes to have
    adjudicated."
    And again:
    2 other words, when standing is placed in issue in a case, the question is whether
    "In
    the person whose standing is challenged is a proper party to request an adjudication
    of a particular issue and not whether the issue itself is justiciable." Id. at 99-100, 88
    S.Ct. at 1952.
    3

    So the issue here is not one of mootness but is one of standing. The controversy
    was originally initiated in the state court and would have proceeded to
    adjudication had not FDIC brought suit in the federal court to prevent any
    disturbance of the continuation of banking services in the community. While
    FDIC's access to the federal courts under 12 U.S.C 1819 should be liberally
    construed, see Franklin Nat'l Bank Sec. Litigation v. Andersen, 532 F.2d 842
    (2d Cir. 1976), we question whether it was necessary for FDIC to persist in
    interrupting the progress of the state court in deciding a matter of state law by
    application to the federal court after one of the parties has offered to remove the
    only collateral consequences or harm to FDIC arising from the controversy.

    We therefore reverse the district court and remand the case to determine if
    Grella will deliver a viable non-disturbance agreement, for further examination
    of the parameters, wording and enforceability of the same with instructions that
    if the district court finds that this agreement in all respects protects FDIC in its
    occupation of the branch premises, then upon delivery of the same to dismiss
    the complaint of FDIC for lack of standing and to permit Grella and Lever as
    the real parties in interest to thrash out this issue which is a matter of state law

    in the state court. Absent such a finding and dismissal, this court retains
    jurisdiction for the purpose of proceeding to consideration of the merits.

    Of the Eastern District of New York, sitting by designation

    In her February, 1976, affidavit in opposition to FDIC's motion for summary


    judgment Grella stated: "It has never been my intention to interfere with the
    branch bank operation. I have never attempted to terminate this lease, and as I
    have offered before, I would gladly enter into any formal arrangement
    necessary to assure the FDIC of that fact." Joint Appendix A58 (emphasis
    added). In her March, 1975, affidavit in support of her motion to dismiss, Grella
    had made a similar offer. Joint Appendix A40-9. At the hearing for a
    preliminary injunction on March 4, 1975, her counsel stated to the court: "if we
    succeed in our fight with Mr. Lever . . . then we will not terminate your
    tenancy." Joint Appendix A69
    A non-disturbance agreement may be equated to a covenant of quiet enjoyment
    in a lease. 33 N.Y.Jur., Landlord and Tenant 160 at 496-97 (1964). Grella
    could hardly have given more.
    FDIC seeks no relief against Lever nor does it set forth any basis for any
    possible claim against Lever if he refuses to consent to the assignment of the
    branch lease to EAB.

    This provision of the lease provides that the tenant in case of termination shall
    remain liable for the difference between the rent reserved thereunder and the
    rent subsequently collected by the landlord for the remainder of the unexpired
    term, payable monthly as "such differences shall from time to time be
    ascertained . . . ."

    Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of the


    Senate Comm. on the Judiciary, 89th Cong., 2d Sess., pt. 2, at 498 (1966)
    (statement of Professor Freund). See Scott, Standing in the Supreme Court A
    Functional Analysis, 86 Harv.L.Rev. 645 (1973)

    Indeed, Grella has admitted that she has no claim against Franklin for future
    rent in the event of a rental deficiency. (Grella's Brief at 13)

    As a matter of fact in other Franklin locations FDIC and EAB are apparently
    satisfied with a best efforts agreement by the landlord to obtain a nondisturbance agreement from the landlord's mortgagee in the event of
    foreclosure. See Joint Appendix A65-70

    Though the parties have not so argued, an examination of the record reveals
    that one concern of FDIC and Lever is that in the event Grella is successful in
    terminating the ground lease, FDIC may lose the parking spaces owned and
    provided by Lever under the branch lease. This issue is independent of the
    alleged dispute here between Grella and FDIC as set forth in the pleadings
    which arises from the lease between Grella and Lever and it cannot provide
    FDIC with standing in this case. If FDIC or EAB needs additional protection
    from Lever, that would be an issue separate and apart from the present lease
    controversy between Lever and Grella

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