Empire State Bank v. Citizens State Bank, 90-5255

• Decision Date: 05 August 1991
• Docket Number: No. 90-5255,90-5255
• Citation: Empire State Bank v. Citizens State Bank, 932 F.2d 1250 (8th Cir. 1991)
• Parties: EMPIRE STATE BANK, a Minnesota corporation, Appellee, v. CITIZENS STATE BANK, Federal Deposit Insurance Corporation, as Liquidator and/or Receiver of Citizens State Bank, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1250

932 F.2d 1250

EMPIRE STATE BANK, a Minnesota corporation, Appellee, v. CITIZENS STATE BANK, Federal Deposit Insurance Corporation as Liquidator and/or Receiver of Citizens State Bank, Appellant.

No. 90-5255.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1991.

Decided May 10, 1991.

Order on Denial of Rehearing

Aug. 5, 1991.

Rehearing En Banc Denied

Aug. 5, 1991.

E. Whitney Drake (FDIC), Washington, D.C., for appellant.

James Anderson, Marshall, Minn., for appellee.

Before LAY, Chief Judge, and FAGG and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

The Federal Deposit Insurance Corporation (FDIC) appeals from the decision of the District Court ¹ remanding this action to state court. Appellate jurisdiction is based upon 12 U.S.C.A. Sec. 1819(b)(2)(C) (West 1989). We affirm.

In September 1983, Empire State Bank, a Minnesota banking corporation (Empire), purchased from Citizens State Bank of Fulda, Minnesota (Citizens), a $200,000 participation interest in loans made by Citizens to Duane Sather (Sather). Empire renewed this participation in March 1984. Empire's renewed participation interest, like the original one, is evidenced by a document entitled "Certificate of Participation Pro Rata" and signed on behalf of Citizens by one of its officers. In February 1985, the Minnesota Commissioner of Commerce declared Citizens insolvent, closed it, and appointed the FDIC as its receiver. The FDIC then initiated court action against Sather and eventually collected a substantial amount of money. It also filed claims under Citizens' banker's blanket bond and its excess employee dishonesty blanket bond, both which were issued by Hartford Accident and Indemnity Company (Hartford). Those claims were settled, with the FDIC receiving a substantial payment from Hartford.

In August 1989, Empire filed a proof of claim with the FDIC, asserting that Empire had an interest in the monies recovered from Sather and Hartford. Following what Empire took as the FDIC's denial of this claim, ² Empire, seeking a recovery based on state-law rights assertedly flowing from its participation in Citizens' loans to Sather, initiated a state court action against the FDIC. The FDIC removed the action to the District Court.

Empire then moved for remand ³ to state court pursuant to 12 U.S.C.A. Sec. 1819(b)(2)(D) (West 1989), which provides that:

Except as provided in subparagraph (E), any action--

(i) to which the Corporation, in the Corporation's capacity as receiver of a State insured depository institution by the exclusive appointment by State authorities, is a party other than as a plaintiff;

(ii) which involves only the preclosing rights against the State insured depository institution, or obligations owing to, depositors, creditors, or stockholders by the State insured depository institution; and

(iii) in which only the interpretation of the law of such State is necessary,

shall not be deemed to arise under the laws of the United States.

12 U.S.C.A. Sec. 1819(b)(2)(D) (West 1989). In response, the FDIC argued that as Empire's lawsuit asserted claims upon monies collected by the FDIC after the closing date of Citizens, Empire's claims thus did not involve only "preclosing rights." ⁴ The FDIC also argued that Empire's claim against the Hartford bond proceeds was barred by 12 U.S.C.A. Sec. 1823(e) (West 1989), and consequently that the case presented an issue of federal law making remand inappropriate. ⁵

The District Court granted Empire's motion for remand. In doing so, it held that Empire's claims involved only "preclosing rights" since the "rights the plaintiff seeks to vindicate ... are based on a participation purchased September 28, 1983, and renewed March 28, 1984, both of which dates obviously fall prior to the closing of [Citizens]." Brief for FDIC, Add. A at 6 (Memorandum and Order). The court also held that section 1823(e) did not bar Empire's claim against the Hartford bond proceeds since Empire's claim does not depend upon "secret" or unwritten agreements with Citizens but rather is "that it has an equitable right under a 'trust fund' theory pursuant to state receivership law to a preferred claim to a proportionate share of those proceeds by virtue of the written participation agreement." Brief for FDIC, Add. A at 8-9 (Memorandum and Order) (emphasis in original.)

In this appeal from the District Court's order remanding the case to state court, the FDIC contends that the remand was erroneous because Empire's claim upon the bond proceeds does not involve only "preclosing rights" as required by section 1819(b)(2)(D)(ii). It reasons that any equitable claim that Empire might have upon the Hartford bond proceeds could only have come into existence after the FDIC recovered on the bonds, which occurred after the FDIC took over Citizens. We disagree.

All the asserted rights Empire is seeking to vindicate in this suit flow directly, as a matter of state law, from the participation agreement executed by Empire and Citizens in 1983 and renewed in 1984. As Citizens was not closed until 1985, the District Court was correct in its conclusion that whatever rights Empire may have by reason of the participation agreement are "preclosing rights."

The FDIC also contends that remand was inappropriate as it has raised a federal defense under section 1823(e) to Empire's claim upon the bond proceeds, and any resolution of the suit necessarily would require a resolution of this issue. Because remand pursuant to section 1819(b)(2)(D) is improper unless resolution of the claim requires only interpretation of state law, the FDIC concludes that the remand under section 1819(b)(2)(D) was erroneous. Again, we disagree.

We believe that Congress intended for section 1819(b)(2)(D) to have some effect. See Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (D.C.Cir.1976) ("a statute should not be construed in such a way as to render certain provisions superfluous or insignificant"). But to accept the FDIC's reasoning regarding its section 1823(e) defense would render section 1819(b)(2)(D) entirely superfluous, for the FDIC always has the ability to assert that it has a federal defense based on section 1823(e). We therefore reject the position of the FDIC. A more reasonable interpretation of section 1819(b)(2)(D) is that remand is inappropriate by virtue of subpart three of that section only where the court must decide a "disputable issue of federal law." Perini Corp. v. FDIC, 754 F.Supp. 235, 238 (D.Mass.1991). Adopting that approach, we are satisfied that here the FDIC's section 1823(e) defense does not present a "disputable issue of federal law" and that whether Empire's claims stand or fall is wholly dependent upon state law.

Empire's claims with respect to the bond proceeds would implicate section 1823(e) only if Empire was attempting to enforce an agreement that tended to "diminish or defeat the interest of the Corporation in any asset acquired by it" under sections 1821 or 1823. 12 U.S.C.A. Sec. 1823(e) (West 1989). As the FDIC itself points out, the participation agreement that is the foundation of Empire's claim is not addressed to the bonds or their proceeds. Rather, it reflects participation by Empire in Citizens' loans to Sather. There is no off-the-books agreement tending to diminish the FDIC's interest in the bonds, and it is only through equitable principles embodied in Minnesota law that Empire is able to assert a claim upon the bond proceeds. Thus Empire's claim upon these proceeds is not based upon an "agreement tending to diminish or defeat the interest of the Corporation" within the meaning of section 1823(e).

Moreover, the participation agreement involved in this litigation is not the sort of agreement to which section 1823(e) is directed. Section 1823(e) generally is accepted as representing the codification of the rule from D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). ⁶ There the Supreme Court held that when the maker of an instrument has " 'lent himself to a scheme or arrangement whereby the banking authority ... was likely to be misled,' that scheme or arrangement could not be the basis for a defense against the FDIC." Langley v. FDIC, 484 U.S. 86, 92, 108 S.Ct. 396, 401, 98 L.Ed.2d 340 (1987) (quoting D'Oench, 315 U.S. at 460, 62 S.Ct. at 680 (emphasis in Langley )). Here we can find nothing supporting the conclusion that the participation agreement constituted an arrangement likely to mislead the FDIC or that Empire in any way "lent [itself] to a scheme or arrangement" likely to mislead the FDIC. Indeed, the FDIC has made no argument to this effect. In these circumstances, to apply section 1823(e) to Empire's claims upon the bond proceeds would be unwarranted.

The cases relied upon by the FDIC involving applications of section 1823(e) are inapposite. For example, in Beighley v. FDIC, 868 F.2d 776, 782-82 (5th Cir.1989), the dispute centered upon whether the maker of a note could assert claims against the FDIC that arose from an alleged side-agreement the maker claimed the failed bank had entered in exchange for the execution of the maker's note. In Belsky v. First Nat'l Life Ins. Co., 653 F.Supp. 80 (D.Neb.1986), aff'd 818 F.2d 661 (8th Cir.1987), the issue was whether the president of a failed bank could enforce an alleged side-agreement requiring the bank to use a life insurance policy to fund his retirement. The issues in both cases clearly focused upon agreements "tending to diminish or defeat the interest of the Corporation" in its acquired assets. Furthermore, both Beighley and Belsky involved "scheme[s] or arrangement[s] whereby the banking authority ... was likely to be misled." D'Oench, 315 U.S. at 460, 62 S.Ct. at 680; see Beighley, 868 F.2d at 784 ("Moncor's alleged oral agreement to finance future loans is not clearly evidenced in the bank's records, and would not be apparent to bank examiners"); Belsky, 653 F.Supp. at 85 ("The salary...