Union Federal Bank of Indianapolis v. Minyard, 90-2341

Decision Date18 December 1990
Docket NumberNo. 90-2341,90-2341
Citation919 F.2d 335
PartiesUNION FEDERAL BANK OF INDIANAPOLIS, Plaintiff-Appellee, v. William A. MINYARD, III, et al., Defendants-Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for Arsenal Savings Association, F.A., Counter Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Bill Boyd, Boyd, Veigel & Hance, McKinney, Tex., for defendants-appellants.

Christopher Lyle Daines, Kevin H. George, Eikenburg & Stiles, Houston, Tex., for plaintiff-appellee.

Scott Douglas Cunningham, Brown & Fowler, Houston, Tex., for counter defendant-appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, SMITH, and WIENER, Circuit Judges.

PER CURIAM:

Today's appeal arises from the foreclosure of property on which a Texas joint venture had, in palmier times, proposed to erect a shopping center. The venturers had guaranteed payment of the purchase money note in various individual percentages, and the transferee holder of the note recovered judgments against them in a state court trial. In that trial, the venturers contended unsuccessfully that the holder was seeking to recover interest of them at usurious rates, though not that the loan documents themselves specified such rates.

Subsequent to the entry of judgment, the holder was declared insolvent; and first the FSLIC, and later the FDIC, was appointed receiver and substituted as counter-defendant in this case. FSLIC had removed the case after judgment but while the venturers' motion for new trial was pending. The federal court overruled that motion and, in essence, re-entered the state judgment as its own.

As the FDIC had neither opportunity nor occasion to assert the D'Oench doctrine 1 in the trial court, we will entertain its assertion here. See FDIC v. Castle, 781 F.2d 1101 (5th Cir.1986). Under it, and because the venturers' attempt to base a usury claim on pleading contentions is perforce not one reflected in the lender's records, it is therefore of no use--offensive or defensive--against the FDIC. Beighley v. FDIC, 868 F.2d 776 (5th Cir.1989).

As for the claim against Union Federal Savings Bank, the assignee of the note, no serious attempt is made by the appellants to assert that, as takers from one which held "at least holder in due course status," 2 its rights were less than those of its assignor. Various other reasons support the judgments of the trial...

To continue reading

Request your trial
16 cases
  • In re NBW Commercial Paper Litigation, 90-1755 (RCL)
    • United States
    • U.S. District Court — District of Columbia
    • 11 Marzo 1992
    ...independent of any agreement by the parties); In re Howard, 65 B.R. 498 (Bankr. W.D.Tex.1986) (same); but see Union Fed. Bank v. Minyard, 919 F.2d 335, 336 (5th Cir.1990) (holding that appeal to usury laws did not bar the bank's D'Oench defense). Such a result appears appropriate in the lig......
  • Resolution Trust Corp. v. Foust
    • United States
    • Arizona Court of Appeals
    • 18 Marzo 1993
    ...951 F.2d 68, 71 (5th Cir.), cert. denied, 506 U.S. 972, 113 S.Ct. 459, 121 L.Ed.2d 368 (1992) (citations omitted); Union Fed. Bank v. Minyard, 919 F.2d 335, 336 (5th Cir.1990). Foust urges us to follow instead those federal decisions barring RTC from raising the D'Oench defense for the firs......
  • Meyerland Co., Matter of
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 13 Mayo 1992
    ...that FIRREA permitted federal regulators to assert their special defenses for the first time on appeal. See also Union Federal Bank v. Minyard, 919 F.2d 335, 336 (5th Cir.1990) (FDIC allowed to raise special defense for first time on appeal because, as the Corporation was not a party in the......
  • 604 Columbus Ave. Realty Trust, In re
    • United States
    • U.S. Court of Appeals — First Circuit
    • 19 Junio 1992
    ...of the trial court. See Resolution Trust Corp. v. McCrory, 951 F.2d 68, 71 (5th Cir.1992) (citing Baumann and Union Fed. Bank v. Minyard, 919 F.2d 335, 336 (5th Cir.1990)). It is the general rule in this circuit that arguments not raised in the trial court cannot be raised for the first tim......
  • Request a trial to view additional results
1 books & journal articles
  • Fdic and Rtc Special Powers in Failed Bank Litigation
    • United States
    • Colorado Bar Association Colorado Lawyer No. 22-3, March 1993
    • Invalid date
    ...First Nat'l Bank, 731 F.Supp. 746, 747 (E.D. La. 1989). 63. But see infra, text accompanying note 84. 64. Union Federal Bank v. Minyard, 919 F.2d 335, 336 (5th Cir. 1990) (per curiam); FDIC v. Leach, 772 F.2d 1262, 1266 (6th Cir. 1985). 65. FDIC v. RepublicBank, Lubbock, 883 F.2d 427, 429 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT