Acevedo v. First Union Nat. Bank, 02-16334.

• Decision Date: 26 January 2004
• Docket Number: No. 02-16334.,02-16334.
• Citation: 357 F.3d 1244
• Parties: John ACEVEDO, Plaintiff-Appellant, v. FIRST UNION NATIONAL BANK, a foreign banking corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

357 F.3d 1244

John ACEVEDO, Plaintiff-Appellant, v. FIRST UNION NATIONAL BANK, a foreign banking corporation, Defendant-Appellee.

No. 02-16334.

United States Court of Appeals, Eleventh Circuit.

January 26, 2004.

Ira C. Hatch, Jr., Hatch & Doty, P.A., Vero Beach, FL, Ronald E. Dobelstein, Alpharetta, GA, for Plaintiff-Appellant.

Steven M. Collins, Paul James Kaplan, Alston & Bird, LLP, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, BIRCH and GOODWIN^*, Circuit Judges.

GOODWIN, Circuit Judge:

Plaintiff John Acevedo appeals the district court's ruling that he cannot hold defendant First Union National Bank ("First Union") liable for cashier's checks issued by a failed bank but included in the failed bank's assets and liabilities accepted by First Union. Under 12 U.S.C. § 1822(e), First Union has no liability for deposits not claimed within eighteen months after the Federal Deposit Insurance Corporation (the "FDIC") mails notice to the last-known address of the depositor. 12 U.S.C. § 1822(e) (Supp. IV 1992) (amended 1993). However, because there is no evidence that the FDIC mailed the requisite notice, we reverse and remand to the district court.

A. Background

In July 1981, Southeast Bank in Miami, Florida, issued five cashier's checks, totaling $450,000, to five named payees. Four of the cashier's checks were in the amount of $100,000 and were issued to Roberto Sanchez, Alvaro Ocampo, Eugenio Echavarria and Juan Santamaria, respectively. The remaining cashier's check was in the amount of $50,000 and was issued to Armando Caycedo. In August 1981, in Colombia, South America, Juan Diaz claims to have received the cashier's checks from Sanchez.

Ten years later, in 1991, Southeast Bank failed, and the FDIC, as Southeast Bank's receiver, entered an Assistance Agreement with First Union. The Assistance Agreement provided that First Union would assume Southeast Bank's liability for outstanding demand deposits, including cashier's checks. In relevant part, section 2.1 of the Assistance Agreement provides:

2.1 Liabilities Assumed by Assuming Bank. (a) The Assuming Bank hereby expressly assumes at Book Value... and agrees to pay, perform, and discharge all of the following liabilities (and only the following liabilities) of the Failed Bank as of Bank Closing ...:

(i) demand Deposits, including outstanding cashier's checks and other official checks, and time and savings Deposits....

To cover the liabilities, the FDIC transferred funds to First Union. Section 2.3 of the Assistance Agreement required First Union to return the transferred funds to the FDIC if, within eighteen months after Southeast Bank's closing, any depositor had not claimed an unpaid deposit. In relevant part, section 2.3 of the Assistance Agreement provides:

2.3 Unclaimed Deposits. If, within eighteen (18) months after Bank Closing, any depositor of the Failed Bank does not claim or arrange to continue such depositor's Deposit assumed pursuant to Section 2.1 at the Assuming Bank, the Assuming Bank shall, within fifteen (15) Business Days after the end of such eighteen (18)-month period, (i) refund to the Corporation the amount of each such Deposit (without reduction for service charges), (ii) provide to the Corporation a schedule of all such refunded Deposits in such form as may be prescribed by the Corporation, and (iii) assign, transfer, convey and deliver to the Receiver all right, title and interest of the Assuming Bank in and to Records previously transferred to the Assuming Bank and other records generated or maintained by the Assuming Bank pertaining to such Deposits.

In 1996, also in Colombia, Acevedo claims to have received the cashier's checks from Diaz to satisfy a debt. In 2001, Acevedo, through his attorney, tendered the five cashier's checks to First Union for payment, but First Union refused to honor them.

Acevedo initially brought suit in state court, but First Union removed the action to the Northern District of Georgia. On the parties' cross-motions for summary judgment, the district court granted summary judgment for First Union. The court concluded that First Union was no longer liable for the cashier's checks because it had complied with the Assistance Agreement by returning the funds representing the unclaimed deposits.

B. Standard of Review

This court reviews de novo a district court's grant of summary judgment applying the same standards applied by the district court. Valley Drug Co. v. Geneva Pharm., Inc., 344 F.3d 1294, 1303 (11th Cir.2003) (citing Bailey v. Allgas, Inc., 284 F.3d 1237, 1242 (11th Cir.2002)).

A motion for summary judgment is properly granted 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). After adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a summary judgment motion, the record and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Nat'l Fire Ins. Co. of Hartford v. Fortune Const. Co., 320 F.3d 1260, 1267 (11th Cir.2003).

C. Discussion

Acevedo argues that First Union remains liable for the cashier's checks despite returning the underlying funds to the FDIC. Acevedo also contends that First Union can rely on § 1822(e) only if it presents evidence that the FDIC mailed notice to each depositor's last-known address. First Union responds that, according to the Assistance Agreement and § 1822(e), its liability for the cashier's checks ended when it refunded the unclaimed deposits.

We begin by observing that First Union became liable for the cashier's checks by entering an Assistance Agreement with the FDIC, not by merging with Southeast Bank under 12 U.S.C. § 215a, as Acevedo has argued. When Southeast Bank failed, the FDIC, as its insurer, was required either to pay the insured deposits in cash or to "mak[e] available to each depositor a transferred deposit ... in another insured depository institution ... in an amount equal to the insured deposit of such depositor...." § 1821(f)(1); see also Lawson v. Fed. Deposit Ins. Corp., 3 F.3d 11, 13 (1st Cir.1993). The FDIC chose the latter option, commonly called a "purchase and assumption," see E.I. du Pont de Nemours and Co. v. Fed. Deposit Ins. Corp., 32 F.3d 592, 595 (D.C.Cir.1994), and arranged to sell certain assets of Southeast Bank to First Union, with the agreement that First Union would assume the corresponding deposit liabilities. The opening paragraph of the Assistance Agreement identifies the parties to the agreement as the FDIC, in its capacity as the receiver of Southeast Bank, and First Union.

A "deposit" for purposes of the Federal Deposit Insurance Act, which governs the Assistance Agreement in this case, includes, inter alia, an "outstanding draft[,] ... cashier's check, money order, or other officer's check issued in the usual course of business for any purpose, including without being limited to those issued in payment for services, dividends, or purchases...." 12 U.S.C. § 1813(l)(4). Interpreting § 1813(l)(4), the Tenth Circuit concluded that outstanding and unpaid cashier's checks were converted, upon the bank's insolvency, from negotiable instruments to unclaimed deposits by operation of law. Fed. Deposit Ins. Corp. v. McKnight, 769 F.2d 658, 661 (10th Cir. 1985). Accordingly, the...