963 F.2d 283 (10th Cir. 1992), 91-6191, Farha v. F.D.I.C.

Docket Nº:91-6191.
Citation:963 F.2d 283
Party Name:Fareed M. FARHA, Trustee of the Farha Sales, Inc., Defined Benefit Pension Plan, Plaintiff/Appellant, Fareed M. Farha, an individual, Additional Party Plaintiff/Appellant, Rebecca O. Farha, an individual, Additional Party Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, a corporation, Defendant/Appellee, Federal Deposit Insurance Corporation, a
Case Date:April 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 283

963 F.2d 283 (10th Cir. 1992)

Fareed M. FARHA, Trustee of the Farha Sales, Inc., Defined Benefit Pension Plan, Plaintiff/Appellant,

Fareed M. Farha, an individual, Additional Party Plaintiff/Appellant, Rebecca O. Farha, an individual, Additional Party Plaintiff,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, a corporation, Defendant/Appellee,

Federal Deposit Insurance Corporation, as Liquidating Agent for First National Bank of Luther, Luther, Oklahoma, Intervenor-Additional Defendant/Appellee.

No. 91-6191.

United States Court of Appeals, Tenth Circuit

April 23, 1992

Page 284

F.H. Wright, Wright & Cole, Oklahoma City, Okl., for plaintiff/appellant.

Ricki Sonders, Edwards, Sonders & Propester, Oklahoma City, Okl. (Joel W. Harmon, Edwards, Sonders & Propester, with her on the brief), for defendant/appellee.

Before ANDERSON, ALDISERT, [*] and BRORBY, Circuit Judges.

ALDISERT, Senior Circuit Judge.

Fareed M. Farha, individually and as trustee of a benefit pension plan, and Rebecca Farha, filed a complaint in the district court against the Federal Deposit Insurance Corp. (FDIC) to recover two certificates of deposit (CDs) or their cash equivalent. The CDs were issued originally by the First National Bank of Luther, Oklahoma, and later transferred, following the bank's insolvency, to the First Wagoner Bank and Trust Co. under a Purchase and Assumption Agreement supervised by the FDIC. The deposits themselves were disbursed by the FDIC, primarily to offset a debt owed the Luther bank by Mr. Farha, as an individual, with the balance being paid over to the payees listed on the CDs.

The complaint asserts two causes of action. The "First Cause of Action (Replevin)," App. 6-8, contains a request for return of the CDs or in the alternative a money judgment in the amount represented by the CDs. The "Second Cause of Action (Breach of Contract)," App. 8-9, requests money damages in the amount of the CDs. The district court entered summary judgment in favor of the FDIC. Fareed M. Farha, individually and as trustee, has appealed.

The principal issue before us is whether the appellant may obtain relief from the FDIC under theories of contract or tort. We hold that he may not and thus affirm.

The district court entertained jurisdiction pursuant to 12 U.S.C. § 1819 (Fourth) and 28 U.S.C. § 1331. Appeal was timely filed

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under Rule 4(a), Fed.R.App.P. We have jurisdiction in this appeal from a final judgment. 28 U.S.C. § 1291.

I.

The facts are not in dispute. Plaintiff Fareed M. Farha was trustee and sole participant in the Farha Sales, Inc. Defined Benefit Pension Plan. He came before the court as an individual and in his capacity as trustee. His wife Rebecca was also a plaintiff but did not appeal from the district court's judgment.

Farha individually owed certain debts to the First National Bank of Luther, amounting to $291,874.24, evidenced by promissory notes which came due on August 18, 1987, but were not paid. Three CDs, representing deposits in the Luther bank, also figure in this litigation. The CDs listed various persons as payees:

CD No. Payees 5328 Fareed M. Farha Rebecca O. Farha the pension plan 5336 Fareed M. Farha Rebecca O. Farha the pension plan 5371 Fareed M. Farha the pension plan The Luther bank was declared insolvent on August 13, 1987, and the FDIC was appointed the liquidating agent. At that time, the CDs were in possession of the bank and were listed in the Inventory of Safekeeping prepared by the FDIC after the bank was closed. App. 50, 57. They are also listed on two General Receipt and Safekeeping Agreements. App. 13, 16. These agreements purport to be between the payees and the bank but are not signed.

After the Luther bank failed, the deposits represented by the CDs were transferred to First Wagoner Bank and Trust Co., under the terms of a Purchase and Assumption Agreement. FDIC, in its corporate capacity, acquired the promissory notes owed by Farha.

On September 10, 1987, First Wagoner sent Farha, individually and as trustee, and Rebecca Farha, a cashier's check for $140,705.91, representing the proceeds from CD No. 5336. The check reflected the listing of payees on the CD: Farha, Rebecca Farha, and the pension plan. All of the payees, however, did not endorse the check; it was endorsed by only one of the three payees, Farha, as trustee of the pension plan. App. 27.

On January 22, 1988, First Wagoner...

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