Acevedo v. First Union National Bank, 06-12477.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Dubina
• Citation: 476 F.3d 861
• Parties: John ACEVEDO, Plaintiff-Appellant, v. FIRST UNION NATIONAL BANK, a foreign banking corporation, Defendant-Appellee.
• Docket Number: No. 06-12477.,06-12477.
• Decision Date: 26 January 2007

476 F.3d 861 John ACEVEDO, Plaintiff-Appellant,
v.
FIRST UNION NATIONAL BANK, a foreign banking corporation, Defendant-Appellee. No. 06-12477. United States Court of Appeals, Eleventh Circuit. January 26, 2007.

[476 F.3d 863]

Aaron Van Johnson, Ira C. Hatch, Jr., Hatch & Doty, P.A., Vero Beach, FL, for Acevedo.

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

Brenda G. Bryn (Fed. Pub. Def.), Ft. Lauderdale, FL, for Evans.

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

Before DUBINA and WILSON, Circuit Judges, and HODGES,^* District Judge.

DUBINA, Circuit Judge:

John Acevedo ("Acevedo") appeals from the district court's order granting summary judgment in favor of First Union National Bank ("First Union") which refused to honor cashier's checks issued by a failed bank, whose assets and liabilities First Union assumed. For the reasons set forth below, we affirm the district court's entry of summary judgment in favor of First Union.

I. BACKGROUND

In July 1981, Southeast Bank ("Southeast Bank") in Miami, Florida, issued five cashier's checks, totaling $450,000, to five named payees (Roberto Sanchez ("Sanchez"), Alvaro Ocampo, Eugenio Echavarria, Juan Santamaria and Armando Caycedo). In August 1981, Sanchez transferred all five cashier's checks to Juan Diaz ("Diaz").¹ Ten years later, in 1991, South-east Bank failed, and the Federal Deposit Insurance Corporation ("FDIC") assumed receivership over the bank. The FDIC, as Southeast Bank's receiver, was required to pay Southeast Bank's insured deposits in cash or make such funds available to depositors in another insured depository institution. See 12 U.S.C. § 1821(f)(1) (1994). The FDIC chose the latter option and entered into an Assistance Agreement with First Union under which First Union assumed Southeast Bank's liability for demand deposits, including outstanding cashier's checks. The FDIC transferred funds to First Union to cover the liabilities.

As receiver, the FDIC also assumed control of Southeast Bank's records and was responsible for notifying Southeast Bank's depositors that they must claim their deposit. See 12 U.S.C. § 1822(e) (1992) (amended 1993).² The Assistance Agreement required First Union to return any unclaimed funds to the FDIC if, within eighteen months after Southeast Bank's closing, any depositor had not claimed his unpaid deposit. Depositors who had failed to claim their deposit were barred from asserting a right to the unclaimed deposits,

476 F.3d 864

if the FDIC provided notice pursuant to § 1822(e). See id.; see also Acevedo, 357 F.3d at 1248.

In September, October, and November 1991, The Miami Herald published a notice to Southeast Bank's creditors. The notice advised creditors that Southeast Bank had closed and that creditors must present their claims to the FDIC by December 31, 1991. The notice also advised creditors that claims filed after December 31, 1991, may be barred in accordance with 12 U.S.C. § 1821. Although the amended 12 U.S.C. § 1822(e) did not change the notification procedures for banks placed in receivership between January 1, 1989, and June 28, 1993, for purposes of existing receiverships, Congress instructed that § 1822(e) not bar an insured depositor's claim, so long as the claim was made prior to the termination of the receivership. See Pub. L. No. 103-44, sec. 2(b), 107 Stat. 220, 221. As a result, in September 1993, The Florida Times-Union (Jacksonville), the Orlando Sentinel, the St. Petersburg Times, The Tampa Tribune, The Palm Beach Post, the Sarasota Herald-Tribune, the South Florida Sun-Sentinel (Broward, Palm Beach, and Dade counties), and The Miami Herald published notices to the former depositors of Southeast Bank. The notices advised depositors that Southeast Bank was closed, and that the FDIC had arranged for all deposits to be transferred to First Union. The notice also advised depositors that Congress had extended the claiming period, and that depositors could claim their deposits at any time before the FDIC terminated the receivership. Finally, the notice advised depositors that claims filed after the FDIC terminated the receivership would be barred.

In 1996, Diaz transferred the five cashier's checks, issued by Southeast Bank, to Acevedo. On January 16, 2001, Acevedo, through his attorney, tendered the five cashier's checks to First Union for payment; however, First Union refused to honor them.³ Acevedo filed suit against First Union in state court for its refusal to honor the cashier's checks. First Union removed the action to the United States District Court for the Northern District of Georgia. On the parties' cross-motions for summary judgment, the district court entered summary judgment in favor of First Union because it held that First Union had complied with the Assistance Agreement by returning the funds representing the unclaimed deposits to the FDIC.

On appeal, this court concluded that no language within the Assistance Agreement expressly terminates First Union's liability to pay the cashier's checks. Acevedo, 357 F.3d at 1248. We held that the Assistance Agreement neither limited First Union's liability to the passing of a specified time or the occurrence of a certain event, nor did the Assistance Agreement expressly shift liability for an unclaimed deposit back to the FDIC. Id. However, we explained that Acevedo, having failed to present the cashier's checks within eighteen months after the FDIC was...