Federal Deposit Ins. Corp. v. Newhart, 89-1852
| Decision Date | 15 December 1989 |
| Docket Number | No. 89-1852,89-1852 |
| Citation | 892 F.2d 47 |
| Parties | 10 UCC Rep.Serv.2d 257 FEDERAL DEPOSIT INSURANCE CORPORATION, Merchants Asset Management Corporation, Appellees, v. John W. NEWHART d/b/a J.R. Woody & Associates, Appellant, J.R. Woody a/k/a Jerry R. Woody, d/b/a J.R. Woody & Associates. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John W. Newhart, St. Joseph, Mo., for appellant.
Steven M. Leigh, Kansas City, Mo., for appellee.
Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
John W. Newhart appeals pro se from the district court's order 1 denying his motion to set aside entry of summary judgment in favor of Merchants Asset Management Corporation (Merchants), on Merchants's claim to recover amounts due on promissory notes it acquired from the Federal Deposit Insurance Corporation (FDIC). For reversal, Newhart argues that the district court improperly accorded holder in due course status to Merchants by virtue of Merchant's acquisition of the notes from the FDIC. 2 We affirm.
This appeal concerns three promissory notes executed by Newhart to the order of the State Farmers Bank in St. Joseph, Missouri. Several months after the notes were executed, the bank was declared insolvent. The FDIC purchased the notes in its corporate capacity as part of a purchase and assumption transaction. On July 15, 1987, the FDIC filed suit against Newhart and the comaker of the notes, J.R. Woody, for payment. The FDIC then sold the notes to Merchants, which was substituted as party plaintiff. A default judgment was entered against J.R. Woody on July 21, 1988. Merchants filed a motion for summary judgment against Newhart on September 15, 1988.
In response Newhart claimed, among other things, that he had executed the notes as a surety at the bank's request, and had an oral agreement with the bank that it would not look to him for repayment. The district court found, however, that Merchants, as a result of its purchase of the notes from the FDIC, had acquired holder in due course status pursuant to the policy set forth in D'Oench, Duhme & Co v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and codified at 12 U.S.C. § 1823(e), which barred Newhart from raising this defense. Accordingly, the court found in favor of Merchants. FDIC v. Newhart, 713 F.Supp. 320 (W.D.Mo.1989). Newhart concedes he would be barred from asserting the alleged oral agreement against the FDIC, but argues that the statute's protection does not extend to Merchants as the subsequent purchaser of the notes. Newhart, in his pro se brief, forthrightly states: "Newhart doesn't want to make a big deal out of this, but in the nature of a second opinion, Newhart would like an appellate decision of this question." While such a request would frequently motivate us to file a summary unpublished disposition, this issue is one on which district courts have followed a unanimous path in unpublished opinions, and we believe it is desireable to set forth our reasoning in some detail.
It is well established that when the FDIC acquires a note in its corporate capacity, the obligor of the note cannot defend on the basis of an oral agreement of the type asserted by Newhart. See D'Oench, Duhme & Co., 315 U.S. at 459-62, 62 S.Ct. at 680-82 (); FDIC v. Wood, 758 F.2d 156, 159 (6th Cir.) (discussion of D'Oench, Duhme doctrine and its application to FDIC in its corporate capacity), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 286 (1985). The D'Oench, Duhme doctrine has been codified at 12 U.S.C. § 1823(e), which provides as follows:
No agreement which tends to diminish or defeat the right, title or interest of the [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the [FDIC] unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.
One of the purposes behind § 1823(e) is to facilitate the purchase and assumption of failed banks as opposed to their liquidation. See Gunter v. Hutcheson, 674 F.2d 862, 865 (11th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982), and FDIC v. Wood, 758 F.2d at 160-61, for discussions of the advantages of purchase and assumption transactions. An essential element of a purchase and assumption transaction is the speedy evaluation by the purchasing bank of the failed bank's assets. Gunter v. Hutcheson, 674 F.2d at 865; FDIC v. Wood, 758 F.2d at 161.
As explained by the Eleventh Circuit:
[A] purchase and assumption must be consummated with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services. Because the time constraints often prohibit a purchasing bank from fully evaluating its risks, as well as to make a purchase and assumption an attractive business deal, the purchase and assumption agreement provides that the purchasing bank need purchase only those assets which are of the highest banking quality. Those assets not of the highest quality are returned to the receiver, resulting in the assumed liabilities exceeding the purchased assets. To equalize the difference, the FDIC as insuror purchases the returned assets from the receiver which in turn transfers the FDIC payments to the purchasing bank. The FDIC then attempts to collect on the returned assets to minimize the loss to the insurance fund. In an appropriate case, therefore, the purchase and assumption benefits all parties. The FDIC minimizes its loss, the purchasing bank receives a new investment and expansion opportunity at low risk, and the depositors of the failed bank are protected from the vagaries of the closing and liquidation procedure.
Gunter v. Hutcheson, 674 F.2d at 865-66.
Congress has authorized purchase and assumption transactions only when the...
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