OCI Mortgage Corp. v. Marchese
Decision Date | 15 February 2000 |
Docket Number | (AC 18909) |
Citation | 56 Conn. App. 668,745 A.2d 819 |
Court | Connecticut Court of Appeals |
Parties | OCI MORTGAGE CORPORATION v. CAROLE N. MARCHESE ET AL. |
Lavery, Schaller and Hennessy, Js. Matthew J. Broder, for the appellants (named defendant et al.).
Matthew B. Woods, for the appellee (plaintiff).
The defendants Carole N. Marchese and Anthony Marchese (defendants) appeal from a judgment of foreclosure rendered in favor of the plaintiff on the basis of the trial court's sustaining of the plaintiffs objections to an attorney trial referee's report. The defendants claim that the trial court improperly based its conclusion on the rationale that the D'Oench, Duhme doctrine and 12 U.S.C. § 1823 (e) bar the defendants' claims of setoff and payment of their mortgage. We agree with the defendants and reverse the judgment of the trial court.
The following facts and procedural history are set forth in OCI Mortgage Corp. v. Marchese, 48 Conn. App. 750, 751-52, 712 A.2d 449 (1998):
The decision was appealed to this court. We dismissed the appeal, concluding that the trial court's remanding of the case to the trial referee for further proceedings did not constitute an appealable final judgment. OCI Mortgage Corp. v. Marchese, supra, 48 Conn. App. 755. On October 5, 1998, the parties entered into a stipulation, the purpose of which was to allow a final judgment to enter from which a valid appeal would be taken. On October 7, 1998, the trial court rendered a judgment of strict foreclosure in accordance with the stipulation. The defendants appealed a second time to this court with the appeal now properly before us.
The defendants' contentions focus on the application of a principle first stated in the seminal case of D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942), then codified and expanded at 12 U.S.C. § 1823 (e). We refer to the D'Oench, Duhme & Co. decision and § 1823 (e) throughout this opinion collectively as the D'Oench, Duhme doctrine. Specifically, the defendants argue that the D'Oench, Duhme doctrine does not bar their defenses of setoff and payment of their mortgage.
The D'Oench, Duhme doctrine arises when a bank fails through imprudent loans, rapid withdrawals of funds by depositors or other means. Subsequently, the FDIC becomes a receiver of the bank and assumes all the legal responsibilities of the failed institution, including the right to pursue and defend claims and liabilities of the failed bank.1 Bank examiners rely on the written records of the bank to value outstanding loans. This process must be conducted very quickly, often within days or even hours, to manage the bank's assets as quickly and efficiently as possible. One of the FDIC's key responsibilities arising from these timepressured efforts is to collect on unpaid loan obligations in an effort to meet the bank's liabilities.2 See F. Galves, "Might Does Not Make Right: The Call for Reform of the Federal Government's D'Oench, Duhme and 12 U.S.C. § 1823 (e) Superpowers in Failed Bank Litigation," 80 Minn. L. Rev. 1323, 1339-40 (1996).
It is against a background similar to the present case that the D'Oench, Duhme & Co. decision came to pass. D'Oench, Duhme and Company sold bonds to Belleville Bank and Trust Company, upon which D'Oench, Duhme and Company ultimately defaulted. D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., supra, 315 U.S. 454. To protect its image and to hide the past due bonds, D'Oench, Duhme and Company issued promissory notes to the bank to cover the value of the defaulted bonds. Id. The parties understood in a side agreement that the notes would never be collected. Id. The FDIC later obtained the notes from the failing Belleville Bank and Trust Company and attempted to collect, and D'Oench, Duhme and Company claimed that the note was unenforceable due to lack of consideration. Id., 456. The Supreme Court barred the defense reasoning that secret agreements should be banned where "the maker lent himself to a scheme or arrangement whereby the banking authority on which [the FDIC] relied in insuring the bank was or was likely to be misled." Id., 460. Subsequent to the D'Oench, Duhme & Co. decision, Congress passed the Federal Deposit Insurance Act, § 2 (13) (e) of which was codified at 12 U.S.C. § 1823 (e). Section 1823 (e), which codified and partially expanded the D'Oench, Duhme & Co. decision, now stands as its statutory counterpart.
The legislative history shows that § 1823 (e) was enacted with humble aspirations. While seeking to change "simultaneously" in § 1823 (e) to "contemporaneously" as the statute now reads, one Representative noted: 96 Cong. Rec. 10,731-32 (1950), remarks of Representative Francis Walter.
This doctrine remained a modest one until the early 1980s, when, occasioned by the rise of bank failures, the application of the D'Oench, Duhme doctrine mushroomed. Today, the doctrine has assumed draconian proportions and virtually assures that the FDIC can recover note payments from debtors regardless of otherwise valid defenses that would have existed before the bank's failure. The D'Oench, Duhme doctrine now prohibits claims and defenses such as: accord and satisfaction, breach of condition precedent, breach of fiduciary duty, conspiracy, constitutional challenge, deceptive trade practice, failure of consideration, fraudulent inducement, laches, mitigation of damages, mutual mistake, negligence and unjust enrichment, to name a few. See 11 Am. Jur. 2d, Banks and Financial Institutions § 1095 (1997); F. Galves, supra, 80 Minn. L. Rev. 1375-78 ( ).
As a result, the doctrine has received significant criticism amongst the judiciary for its harshness against unwitting debtors. See, e.g., Federal Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 877 (3d Cir. 1994)(D'Oench, Duhme doctrine and § 1823 [e] can lead to what might be considered harsh result); Federal Deposit Ins. Corp. v. Kasal, 913 F.2d 487, 492 (8th Cir. 1990), cert. denied, 498 U.S. 1119, 111 S. Ct. 1072, 112 L. Ed. 2d 1178 (1991) (similar); In re NBW Commercial Paper Litigation, 826 F. Sup. 1448, 1476 (D.D.C. 1992) (...
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