DRG Funding Corporation

1 	On November 2, 2005, David M. Estabrook was removed as
trustee and on November 3, 2005 (hereinafter “Initial Trustee”),
Wendell W. Webster was appointed successor trustee.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
DRG FUNDING CORPORATION,
Debtor.
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)
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Case No. 94-00417
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE TRUSTEE’S MOTION
FOR AUTHORITY TO ASSIGN JUDGMENT
Wendell Webster, the chapter 7 trustee, 1 has filed a motion
for authority to assign a judgment, by which he proposes to
assign a pre-petition judgment (the “Judgment”) in favor of the
debtor, DRG Funding Corporation, against the U.S. Department of
Housing and Urban Development (“HUD”), to New England Phoenix
Company, Inc. (“NEPCO”), a creditor in this bankruptcy case. 	HUD
objects on the grounds that the proposed assignment violates the
Anti-Assignment of Claims Act, 31 U.S.C. § 3727, which prohibits
the assignment of certain claims against the United States. 	The
Anti-Assignment of Claims Act does not apply to a court-approved
The decision below is signed as a decision of
the court.
Signed: July 05, 2007.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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assignment made of a claim against the United States by a
bankruptcy trustee and the court will approve the proposed
assignment accordingly.
I
BACKGROUND
What follows is a summary of the dispute that gave rise to
the Judgment that the trustee now seeks to assign.
In the 1980s, DRG participated in two HUD programs: a
coinsurance program and a mortgage-backed securities program
operated by the Government National Mortgage Association (GNMA).
In connection with DRG’s participation in these two programs, DRG
initiated litigation challenging HUD’s interpretation of the
rules surrounding default by mortgagors, claims to HUD for
coinsurance proceeds in the form of debentures and the timing of
HUD’s issuance of debentures, and the date from which the
interest on the debentures begins to accrue. 	DRG Funding Corp.
v. Sec’y of Hous. and Urban Dev., 1988 WL 90197 (D.D.C. 1988).
DRG prevailed on appeal. 	DRG Funding Corp. v. Sec’y of Hous. and
Urban Dev., 898 F.2d 205 (D.C. Cir. 1990). 	The case was remanded
to the District Court. 	On remand, HUD filed a motion for entry
of judgment in the amount of $4,379,745.13. 	Judgment was entered
in favor of DRG in the amount of $4,379,745.13 together with
post-judgment interest on June 12, 1991 (DRG Funding v. Sec’y of
Hous. and Urban Dev., 88-cv-02202(JHG))(DE No. 86). 	On July 2,
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2 	These dates were provided by the District Court’s on-line
docket. 	Neither party appears to have specified these date in
their papers.
3
1991, a second judgment was entered providing for an additional
$653,169.58 in pre-judgment interest (DE No. 87). 2 	As part of
the motion for entry of judgment, HUD requested that the District
Court issue an order that would not preclude an administrative
offset of a portion of the final judgment. 	The court declined to
address the propriety of an administrative offset.
On August 3, 1990, prior to the District Court’s entry of
final judgment in favor of DRG, HUD informed DRG of its intent to
collect $3,709,926.55 by administrative offset. 	On July 17,
1991, after the District Court’s entry of final judgment in favor
of DRG, HUD notified DRG that it had collected this amount from
DRG by prior offset. 	On February 12, 1992, HUD purports to have
collected an additional $687,515.96 from DRG by way of
administrative offset.
DRG challenged HUD’s jurisdiction to collect the offsets
before a HUD Administrative Law Judge (ALJ). 	The ALJ ruled in
HUD’s favor and DRG sought an immediate appeal to the Secretary
of HUD pursuant to 24 C.F.R. § 26.26, which permitted
interlocutory appeals. 	The designee of the Secretary heard the
appeal, and she issued her decision in March 1992, upholding the
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3 	As explained in the Circuit Court’s opinion, the ALJ’s
determination that HUD had jurisdiction to collect the offsets,
absent a determination of the amount and validity of the debt
claimed to be offset, does not constitute “final agency action.”
In order to be considered final agency action, it is necessary
for a deputy assistant secretary to make a determination of
indebtedness in a written decision which includes the supporting
rationale for the decision. 	DRG Funding Corp. v. Sec’y of Hous.
and Urban Dev. (D.C. Cir., February 20, 1996); 24 C.F.R. §
17.110(a).
4
ALJ’s order. 3 	The Initial Trustee sought mandamus relief in the
U.S. District Court for the District of Columbia in an effort to
compel HUD to dismiss the offsets. 	The District Court case was
dismissed without prejudice on the grounds that HUD had not
completed its administrative process. 	The U.S. Court of Appeals
for the District of Columbia affirmed the dismissal of the
Initial Trustee’s mandamus action. 	DRG Funding Corp. v. Sec’y of
Hous. and Urban Dev., 76 F.3d 1212 (D.C. Cir. 1996).
II
THE ANTI-ASSIGNMENT OF CLAIMS ACT DOES NOT
APPLY TO COURT-APPROVED ASSIGNMENTS IN BANKRUPTCY
The Anti-Assignment of Claims Act, 31 U.S.C. § 3727,
provides that “a transfer or assignment of any part of a claim
against the United States Government or of an interest in the
claim . . . may be made only after a claim is allowed, the amount
of the claim is decided, and a warrant for payment of the claim
has been issued.” 	Notwithstanding the broad language of the Act,
application of the rule “was very early relaxed in cases which
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4 	See also, Hager v. Swayne, 149 U.S. 242, 247 (1893)
(distinguishing voluntary assignments from those occurring by
operation of law); Price v. Forrest, 173 U.S. 410 (1899)
(upholding assignment of claim against government to receiver);
United States v. Boercherling, 185 U.S. 223 (1902) (same);
Goodman v. Niblack, 102 U.S. 556, 560 (1880) (voluntary
assignment for the benefit of creditors included claims against
the government without offending the Act).
5
were thought not to be productive of the evils which the statute
was designed to obviate,” 	United States v. Aetna Cas. & Sur.
Co., 338 U.S. 366, 373 (1949), and it is now widely recognized
that although the Anti-Assignment Act “generally prohibits the
voluntary assignment of demands against the government, [it] does
not prohibit assignments or transfers of claims against the
United States that occur involuntarily by operation of law.”
Saint John Marine Co. v. United States, 92 F.3d 39, 48 (2d Cir.
1996) (internal quotations and citations omitted). 4 	Accordingly,
claims against the United States held by a debtor on the
commencement of a bankruptcy case pass to the bankruptcy trustee
without offending the Act. 	See Erwin v. United States, 97 U.S.
392 (1878) (the Act “applies only to cases of voluntary
assignment of demands against the government. 	It does not
embrace cases where there has been a transfer of title by
operation of law. 	The passing of claims to heirs, devisees, or
assignees in bankruptcy is not within the evil at which the
statute aimed . . . .”). 	Indeed, the “operation of law”
exception goes even further, and applies as well to the
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5 	See also, Sch. Feeding Corp. v. United States, 221 Ct.
Cl. 906 (1979) (state court judgment assigning claim against the
United States by way of a “Sheriff’s Certificate of Sale of
Personalty” was analogous to a judicially compelled sale and not
barred by anti-assignment statute); New Rawson Corp. v. United
States, 55 F. Supp. 291, 293 (D. Mass. 1943) (anti-assignment
statute does not apply to a transfer of a claim through a
judicial sale under court order in receivership); In re
Gerstenzang, 5 F. Supp. 904, 905 (S.D.N.Y. 1933) (court observed
that bankruptcy trustee would have been permitted to sell claim
against the United States pursuant to court order without the
transfer being ineffective under the Anti-Assignment Act, but the
sale was held not to have included the claim against the
government); 	Export Oil Corp. v. United States, 64 Ct. Cl. 342
(1928) (court-ordered conveyance of claim against the United
States occurred by operation of law and was not subject to the
anti-assignment statute); Davis Sewing Machine Co. of Delaware v.
United States, 60 Ct.Cl. 201 (1925), aff’d, 273 U.S. 324 (1927)
(purchaser of court-approved sale in receivership could sue on
purchased claim against government). 	Cf. Brooks v. Mandel-Witte
Co., 54 F.2d 992 (2d Cir.), cert. denied, 286 U.S. 559 (1932)
(upholding court-imposed lien upon the debtor’s claim against the
government).
6
disposition of such a claim pursuant to court process. 	See
Western Pac. R.R. v. United States, 268 U.S. 271, 273 (1925)
(upholding assignment of claim through a judicial sale in a
railroad receivership, and permitting the assignee to sue on the
claim). 5 	The holding of Western Pac. R.R. logically applies to
bankruptcy court orders just as well as receivership court
orders, and it has been so held. 	In re Pottasch Bros. Co., 11 F.
Supp. 275, 277 (S.D.N.Y.) (citations omitted), aff’d, 79 F.2d 613
(2d Cir. 1935) (stating, 79 F.2d at 615, that a transfer by court
order “would be a transfer wholly ‘by operation of law’ and
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6 	In Pottasch Bros., the claims against the government had
not been reduced to money when the order was entered addressing
the parties’ stipulation that the assignment of the claims to a
bank were to be effective. 	Later, the claims were paid to the
trustee who then attempted to retain the funds received and to
deprive the bank of the funds, invoking the Anti-Assignment Act,
and, accordingly, the government was not a party to the dispute.
But that difference with the instant case (in which the claims
have not been paid by the government) does not matter. 	As
explained below, the Anti-Assignement Act as it read and had been
interpreted by the Supreme Court when Pottasch Bros. was decided,
required that the assignments be effective against the government
or not at all: that a bankruptcy trustee raised the statute as a
defense was no different than if the government were sued by the
assignee and raised the defense. 	Accordingly, Pottasch Bros.
necessarily held that a claim against the government could be
enforced against the government by an assignee holding the claim
pursuant to a bankruptcy court order approving the assignment.
The version of the Anti-Assigment Act in force when Pottasch
Bros. was decided provided that assignments in violation of the
Anti-Assignment Act were “absolutely null and void,” and an early
decision held that such assignments were a nullity, not merely
unenforceable against the government. 	See Nat’l Bank of Commerce
of Seattle v. Downie, 218 U.S. 345, 356-57 (1910) (debtor’s
pledges to banks of claims against government were null and void
and passed to bankruptcy trustee to administer for the benefit of
unsecured creditors). 	Only after Pottasch Bros. did the Supreme
Court undercut Downie by holding that only the government could
invoke the statute’s protections, and allowing assignees to
enforce their assignments once the government paid the claims.
See In re Ideal Mercantile Corp., 244 F.2d 828 (2d Cir.), cert.
denied, 355 U.S. 856 (1957). 	And it was not until 1982 that the
Anti-Assignment Act was amended to eliminate its “null and void”
language, and that “[t]he absence of such language render[ed]
Downie an anachronism.” 	See McAllister Towing v. Ambassador
Factors (In re Topgallant Lines, Inc.), 125 B.R. 682, 690 (Bankr.
S.D. Ga. 1991).
7
therefore valid,” notwithstanding the Anti-Assignment Act). 6
Thus, although a bankruptcy trustee’s assignment of a claim
against the United States is voluntary in the sense that it is
accomplished through an elective and deliberate act, for purposes
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of the Anti-Assignment of Claims Act, such assignment is deemed
to occur “by operation of law” and is not prohibited.
III
THE PROPOSED ASSIGNMENT DOES NOT OFFEND THE PURPOSES OF THE ACT
The Supreme Court made it clear “[f]rom the earliest days of
the Act . . . that the plain language of the Anti-Assignment Act
is not controlling . . . . [and] that courts should [instead]
consider whether the assignment in question implicates the
purposes of the Act.” 	Centers v. United States, 71 Fed. Cl. 529
(2006). 	The Act’s primary purpose is “to prevent persons of
influence from buying up claims against the United States, which
might then be improperly urged upon officers of the government,
and . . . [a] second purpose [is] to prevent possible multiple
payment of claims, to make unnecessary the investigation of
alleged assignments, and to enable the Government to deal only
with the original claimant.” 	United States v. Shannon, 342 U.S.
288, 291 (1952) (quoting United States v. Aetna Cas. and Sur.
Co., 338 U.S. 366 (1949)). 	Additionally, the statute is intended
to “save to the United States defenses which it has to claims by
an assignor by way of set-off, counter claim, etc., which might
not be applicable to an assignee.” 	Id. (quoting Grace v. United
States, 76 F. Supp. 174 (D.C. 1948)).
The Supreme Court, however, has held that assignments
occurring by operation of law are always exempt from the
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prohibition of the Anti-Assignment Act, without regard to whether
such an assignment might contravene the purposes of the Act.
Aetna Cas. & Sur. Co., 338 U.S. at 375. 	The supporting rationale
is that, unlike voluntary assignments, when an assignment occurs
by operation of law “there can be no purpose in such cases to
harass the government by multiplying the number of persons with
whom it has to deal, nor any danger of enlisting improper
influences in advocacy of the claim, and that the exigencies of
the party who held it justified and required the transfer that
was made.” 	Goodman v. Niblack, 102 U.S. at 560, quoted in Aetna
Cas. & Sur., 338 U.S. at 376.
Unless and until this court approves the proposed
assignment, however, there is no assignment occurring “by
operation of law” to speak of. 	Accordingly, it arguably remains
within this court’s discretion to consider the purposes of the
Act before approving the assignment. 	For the reasons stated
below, the court is satisfied that, based on NEPCO and the
trustee having agreed to clarify the language of the assignment,
the proposed assignment does not offend the purposes of the Act.
First, there is no allegation that NEPCO is buying up claims
in an effort to improperly influence the government. 	NEPCO is
merely a creditor of the estate seeking to maximize recovery on
its claim. 	Thus, the primary purpose of the Act, as articulated
in United States v. Shannon, 342 U.S. 288 (1952), is not offended
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by the proposed assignment.
A second stated purpose of the Act is “to prevent possible
multiple payment of claims, to make unnecessary the investigation
of alleged assignments, and to enable the Government to deal only
with the original claimant.” 	Id. 	Given HUD’s participation in
and the overall visibility of the instant proceedings, the
proposed assignment does not pose a legitimate risk of
inadvertent double payment by the government, nor does it put HUD
to the task of investigating whether or not its claim has or has
not been assigned.
HUD contends that the proposed assignment would frustrate
the purpose of the Anti-Assignment of Claims Act because it would
force the United States “to defend a suit through the courts and
deal with persons who were strangers to the original claim, which
the Trustee/Assignor acknowledges has no value in its hands. . .
. [and because] [o]ne of Congress’ basic purpose[s] in passing
the ACA was to prevent multiplying the number of persons with
whom the government had to deal.” 	Although the Act may seek to
minimize the number of parties with whom the government must
deal, it does not present an absolute bar to substitution of
parties. 	Indeed, HUD does not dispute that transfers of claims
from a debtor to a bankruptcy trustee occur by operation of law
and are not subject to the Act. 	Thus, had the trustee elected to
pursue rather than assign the Judgment to NEPCO, HUD would
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7 	In its opposition, HUD argues that the Judgment never
became property of the estate because the Judgment was satisfied
by way of administrative off-set pre-petition. 	Section 541(a)(1)
of 11 U.S.C., however, broadly defines property of the estate to
include “all legal or equitable interests of the debtor in
property as of the commencement of the case.” 	See Affiliated
Computer Sys., Inc. v. Sherman (In re Kemp), 52 F.3d 546, 550
(5th Cir. 1995)(“The scope of property rights and interests
included in a bankruptcy estate is very broad: The conditional,
future, speculative, or equitable nature of an interest does not
prevent it from being property of the bankruptcy estate); Hoseman
v. Weinschneider, 277 B.R. 894 (N.D. Ill. 2002) (property of the
estate includes “every conceivable interest of the debtor,
future, nonpossessory, contingent, speculative, and derivative .
. . 	as long as the interest is actual”)(quoting In the Matter of
Yonikus, 996 F.2d 866 (7th Cir. 1993) and citing Segal v.
Rochelle, 382 U.S. 375 (1966)). 	DRG’s interest in the Judgment,
albeit subject to or contingent upon the outcome of the
administrative proceedings, became property of the estate upon
commencement of this bankruptcy case.
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nevertheless be left to litigate with a party other than DRG. 7
In effect, HUD lost the privilege of insisting that it deal
exclusively with DRG when DRG filed for relief under Chapter 7 of
the Bankruptcy Code. 	Although HUD would like to deal in
litigation of the enforceability of the Judgment with only the
trustee as the successor to the debtor’s books and records, that
desire is outweighed by the need of the trustee promptly to
administer the case by way of assigning a judgment that may take
a long time to resolve. 	As a practical matter, the trustee is
just as much a stranger to DRG’s prepetition affairs as is NEPCO,
and, once the Judgment is assigned to NEPCO, the trustee is
subject to discovery, both before and after commencement of
litigation, if he is in possession of information pertinent to
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the dispute.
Furthermore, contrary to HUD’s contention, Webster’s
assessment that the claim is worthless to the estate is not
tantamount to a concession that the Judgment has been satisfied.
Various considerations may factor into a trustee’s decision not
to pursue a claim on behalf of the estate, including not only the
merits of a cause of action, but also the burden to the estate of
liquidating the claim and the uncertainty of the outcome of
litigation. 	On the current record, the court can only speculate
as to how Webster and his attorney concluded that the Judgment
was of no value to the estate, and the court cannot assume that
it was based merely on a determination that the Judgment has been
satisfied.
Finally, neither the law nor the facts support HUD’s
assertion that the proposed assignment presents a genuine risk to
HUD’s asserted right to setoff. 	First, it is well-established
that “[a]n assignee of a judgment against the United States takes
it subject to the right of the Government to a setoff pursuant to
[31 U.S.C. § 3728.]” 	Hornbeck Offshore Operators, Inc. v. Ocean
Line of Bermuda, Inc., 849 F. Supp. 434 (E.D. Va. 1994) (citing
United States v. Transocean Air Lines, 386 F.2d 79 (5th Cir.),
cert. denied, 389 U.S. 1047 (1967)); Teller v. United States, 113
F. 463 (8th Cir. 1901)); Gen. Elec. Credit Corp. v. Sec. Bank,
244 A.2d 920, 923 (D.C. App. 1968), cited in Am. Lumber Corp. v.
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8 	Webster neglects to point out that, notwithstanding the
foregoing language, the proposed assignment also states that “the
aforesaid judgment is assigned free and clear of any
encumbrances, liens, security interests, rights of offset or
other interests.” 	This language is inconsistent with Webster’s
representation that NEPCO would be subject to HUD’s defense of
set-off.
13
Nat’l R.R. Passenger Corp., 886 F.2d 50 (3d Cir. 1989), (“an
assignee of a chose of action takes it subject to all defenses,
including any valid set-off based on facts existing at the time
of the assignment”). 	Second, both parties to the assignment - -
Webster and NEPCO - - appear to contemplate a resolution of the
administrative offset proceedings before NEPCO will seek to
enforce the Judgment. 	For example, Webster advises the court
“that based upon the form of the assignment approved by this
Court, HUD is not precluded from asserting any valid defenses
against the assignee . . . . [because] [a]n assignee is generally
subject to the same defenses, including set-offs, as the
assignor,” emphasizing that “[t]he assignment specifically states
that the Judgment is assigned ‘as is’ ‘with all faults’ and
‘without representation or warranty, express or implied as to
ownership, collectability, enforceability or any other matter.”
(DE No. 155). 8 	Similarly, NEPCO indicates that “[u]pon
assignment of the Judgment, NEPCO intends to ask HUD to complete
its administrative offset process. 	After reviewing the agency’s
final decision, we will decide if any further steps are
warranted.” 	Mem. in Support of Motion for Authority to Assign at
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p. 6 n. 2. 	Implicit in NEPCO’s statement is NEPCO’s intent to
step into DRG’s shoes for purposes of the administrative offset
proceedings, presumably picking up where DRG left off in
challenging the underlying merits of HUD’s asserted offsets. 	If,
rather than challenging the merits of HUD’s asserted offsets,
NEPCO were to argue that HUD’s offsets are altogether ineffective
against an assignee of the Judgment, such strategy would be
inconsistent with NEPCO’s representations to this court.
To avoid any confusion, to assuage HUD’s concerns as to its
continued right to assert its alleged setoff against the
Judgment, and to commit Webster and NEPCO to the positions they
have taken in these proceedings, the court requested NEPCO and
the trustee to agree that the assignment be amended to expressly
reflect that NEPCO takes the assignment subject to HUD’s
previously asserted right to offset and any other defenses it had
against DRG. 	At the hearing on the motion, they both agreed to
that limitation.
IV
THE JUDGMENT IS NOT AN ALLOWED
CLAIM WITH “NOTHING FURTHER TO BE DONE”
Although the trustee’s motion is being granted, it is noted
that some of NEPCO’s arguments made in support of the motion are
meritless. 	The Anti-Assignment of Claims Act applies only to
unallowed claims against the United States. 	NEPCO contends that
the Judgment is an allowed claim and therefore not subject to the
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Act’s prohibition of assignments “because it is a final judgment
entered by a federal court with nothing further to be done.”
NEPCO’s Mem. in Support at 2. 	Although the District Court
entered a final judgment in favor of DRG, the currently pending
administrative offset proceedings render uncertain the amount
actually owed on the Judgment. 	Even NEPCO implicitly
acknowledges that final agency action is required before it can
enforce the Judgment (“Upon assignment of the Judgment, NEPCO
intends to ask HUD to complete its administrative offset process.
After reviewing the Agency’s final decision, we will decide if
any further steps are warranted.”). 	The lack of finality in the
administrative offset proceedings is the very reason the federal
courts rejected the Initial Trustee’s effort to enforce the
Judgment by way of a writ of mandamus. 	As explained by the U.S.
Court of Appeals for the D.C. Circuit:
[DRG] is merely being forced to pursue its claim
through the administrative process it invoked. 	If the
corporation thinks that process is taking too long, it
may seek relief under 5 U.S.C. § 706(1). 	If the
corporation is unhappy with the outcome of that process
once it has ended, it may seek judicial review then.
At that point, HUD’s ultimate decision on the proper
collection procedures will have merged into its overall
decision on the merits of the corporation’s claims.
Contrast Cohen, 337 U.S. 541, 546 (1949). 	In the
meantime, we will not interfere with the work of the
agency.
The district court also was right in not compelling the
agency to pay the corporation before that work is done.
At oral argument, the corporation attempted to portray
its case as nothing but a garden-variety attempt to
enforce a judgment through the federal mandamus
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statute, 28 U.S.C. § 1361. 	While mandamus may be an
appropriate way to enforce a judgment in some
circumstances, see Hines v. United States, 105 F.2d
85,92 (D.C. Cir. 1939), the district court chose not to
go that route. 	Mandamus is an extraordinary remedy,
available only if other relief is inadequate. 	Women’s
Equity Action League v. Cavazos, 906 F.2d 742, 751
(D.C. Cir. 1990). 	As we have already indicated, the
other relief available here is adequate: the bankrupt
corporation may file suit after the administrative
review is final.
DRG Funding Corp. v. Sec’y of Hous. and Urban Dev., 76 F.3d 1212,
1216 (D.C. Cir. 1996) (internal citations omitted). 	That the
Judgment was entered in a forum different from that in which the
validity and amount of HUD’s administrative offsets are being
adjudicated does not render the Judgment enforceable prior to the
conclusion of the offset proceedings. 	Until the propriety of
HUD’s attempted offsets is adjudicated, the amount that remains
owed on the Judgment is unknown. 	As such, the court cannot
conclude that the claim sought to be assigned by the trustee to
NEPCO has been “allowed, the amount of the claim . . . decided,
and a warrant for payment of the claim . . . issued.” 	31 U.S.C.
§ 3272.
Moreover, HUD’s alleged delay of the administrative
proceedings is irrelevant to the question of whether the
assignment should be allowed. 	NEPCO contends that HUD has
indefinitely delayed the administrative proceedings to its
advantage, stating that “[i]n effect, HUD has created an
administrative Catch-22: it refuses to pay the Judgment on the
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grounds of a pending, non-final administrative process and then
chooses not to reach a ‘final’ administrative decision.” 	NEPCO
Memorandum at 5. 	An agency that unreasonably delays its
administrative proceedings is not deemed to have waived the
protections of the Anti-Assignment of Claims Act, and even if HUD
has unreasonably delayed the administrative proceedings, such
delay does not entitle the trustee to execute assignments that
are otherwise prohibited under the Anti-Assignment of Claims Act.
As observed by the U.S. Court of Appeals for the D.C. Circuit, if
a party to an administrative proceeding believes the agency has
unreasonably delayed or unlawfully withheld final agency action,
its remedy is to seek to compel that agency to act under 5 U.S.C.
§ 706(1). 	Thus, either trustee could have invoked this remedy
had they believed HUD had unfairly delayed the proceedings.
V
For all of these reasons, the court will grant the trustee’s
motion. 	An order follows.
[Signed and dated above.]
Copies to:
Trustee; Counsel for NEPCO; Counsel for HUD.
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