Federal Deposit Ins. Corp. v. Fulcher, MO-85-CA-061.
Decision Date | 12 November 1985 |
Docket Number | No. MO-85-CA-061.,MO-85-CA-061. |
Parties | FEDERAL DEPOSIT INSURANCE CORPORATION, in its Corporate Capacity, Plaintiff, v. James S. "Butch" FULCHER and Royal Caswell, Defendants. |
Court | U.S. District Court — Western District of Texas |
John McChristian, Jr., Midland, Tex., for plaintiff.
Tom Hirsch, Odessa, Tex., for defendants.
The parties have stipulated to the relevant facts and agreed to submit all matters to the Court for determination. After reviewing the pleadings, exhibits, depositions and briefs of counsel, the Court is of the opinion that the FEDERAL DEPOSIT INSURANCE CORPORATION's ("FDIC") motion for summary judgment is meritorious and should be granted.
Defendant JAMES S. "BUTCH" FULCHER ("FULCHER") executed a promissory note payable to the Metro Bank in the amount of $85,000 secured by a mortgage on a home. Defendant ROYAL CASWELL ("CASWELL") executed and delivered to the Metro Bank a letter of guaranty by which he guaranteed FULCHER's indebtedness. Around May of 1983, Metro Bank accepted payment of approximately $55,000 on the note; and, according to CASWELL, at this time the president of Metro Bank, Mr. Eddie Thomas, orally assured him (CASWELL) that the guaranty would be destroyed:
See Sworn Deposition Testimony of Royal Caswell, May 7, 1985, at pp. 10-12, 13-14.
Thereafter, on May 6, 1983, FULCHER executed and delivered to Metro Bank the promissory note which is made the basis of this cause. This note extended FULCHER's indebtedness to Metro Bank.
On July 29, 1983, the State Commissioner declared Metro Bank to be insolvent and ordered the bank closed. On that date, pursuant to 12 U.S.C. § 1821(c), the FDIC was appointed receiver for Metro.
The FDIC, acting in its Corporate Capacity, purchased from the receiver certain assets of the bank. Among the assets purchased by FDIC-Corporate were the notes and claims asserted herein. As a result, the FDIC-Corporate is now the legal owner and holder of the note executed by FULCHER and the letter of guaranty executed by CASWELL. The FDIC alleges that there exists a sum of $23,998.80 currently due and owing, plus accrued interest, on the note in question.
FULCHER testified as follows:
See Sworn Deposition Testimony of James S. "Butch" Fulcher, May 7, 1985, at p. 11.
It appears that FULCHER admits to the debt — his only defense being an inability to repay. CASWELL likewise admits to signing the guaranty agreement to enable FULCHER to obtain the loan. The defendants contend, however, that the interest charged on the loan was usurious — that the loan was not for business purposes, and that the scope of the guaranty agreement was limited by oral representations of an agent of the failed bank.
CASWELL's contention that the president of the Metro bank orally assured him that he "was off the guaranty" is precluded by application of D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942) and 12 U.S.C. § 1823(e).
12 U.S.C. § 1823(e) provides in pertinent part as follows:
No agreement which tends to diminish or defeat the right, title or interest of the corporation in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the corporation...
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