Tivoli Ventures, Inc. v. Bumann

• Citation: 870 P.2d 1244
• Decision Date: 21 March 1994
• Docket Number: No. 92SC838,92SC838
• Parties: TIVOLI VENTURES, INC., Petitioner, v. Terry D. BUMANN and Douglas Tallman, Respondents.
• Court: Supreme Court of Colorado

Page 1244

870 P.2d 1244

TIVOLI VENTURES, INC., Petitioner, v. Terry D. BUMANN and Douglas Tallman, Respondents.

No. 92SC838.

Supreme Court of Colorado En Banc.

March 21, 1994.

Drummond, Dougherty & Schwartz, P.C., Larry C. Schwartz, Pueblo, for petitioner.

John Gehlhausen, P.C., John Gehlhausen, Lamar, for respondent Douglas Tallman.

No appearance on behalf of respondent Terry D. Bumann.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review Tivoli Ventures, Inc. v. Tallman, 852 P.2d 1310 (Colo.App.1992). The issue is whether the statute of limitations set forth in 28 U.S.C. § 2415(a) (1988) is applicable when the Federal Deposit Insurance Corporation (FDIC), acting as receiver for a failed bank, assigns a promissory note to a private party. The district court held that the federal statute of limitations is applicable. The court of appeals reversed and held that a private party is not entitled to sue within the expanded time limit provided by the federal statute of limitations. We disagree, and accordingly reverse the court of appeals and remand with directions to reinstate the judgment entered by the district court.

I

On June 26, 1981, Terry D. Bumann (Bumann) executed a promissory note in favor of the First National Bank of Eads (First National) in the face amount of $5,772. Douglas Tallman (Tallman) signed the note as an accommodation-maker. The note was due on December 28, 1981, but was never paid.

On February 14, 1985, the FDIC was appointed as the receiver of First National. The FDIC assigned Bumann's promissory note to Lease Finance, Inc. (Lease Finance) for value, on January 12, 1987. Pursuant to the assignment agreement, Lease Finance acquired the FDIC's "right, title, and interest" in the note. On August 8, 1989, Lease Finance assigned all of its rights, title, and interest in the note to Tivoli Ventures, Inc. (Tivoli) for value.

Tivoli filed a complaint against Bumann and Tallman on August 17, 1990, seeking the amount due under the note. Bumann and Tallman moved for summary judgment contending that the six-year statute of limitations set forth in section 13-80-103.5(1)(a) 6A C.R.S. (1987), barred Tivoli's claim. The trial court ruled that section 13-80-103.5(1)(a) did not apply. The trial court concluded that Tivoli, as an assignee of the note, was in the shoes of the assignor and acquired the right to sue within the time period set forth in 28 U.S.C. § 2415(a) (1988), which governs the FDIC.

The court of appeals agreed with the trial court that section 13-80-103.5(1)(a) was not applicable after the FDIC was appointed receiver of the failed bank. Tivoli Ventures, 852 P.2d at 1312. Therefore, when the FDIC was appointed receiver, the statute of limitations provided for in 28 U.S.C. § 2415(a) preempted section 13-80-103.5(1)(a) and a new six-year period began to run. Tivoli Ventures, 852 P.2d at 1312. Nevertheless, the court of appeals concluded that when the FDIC assigns a note to a private party, the private party does not acquire the right to sue within the time provided in 28 U.S.C. § 2415(a). Tivoli Ventures, 852 P.2d at 1312. The court of appeals based its conclusion on the language of the federal statute and reasoned that the general principles of assignment do not override the statutory language. Id. at 1313.

Because the federal statute of limitations applies to private-party assignees of the FDIC, we reverse and remand to the court of appeals with directions to reinstate the judgment entered by the trial court.

II

Tivoli contends that it was entitled, by virtue of assignment, to all of the right, title, and interest of the FDIC in the promissory note executed by Tallman, including the right to sue within the six-year statute of limitations period set forth in 28 U.S.C. § 2415(a) (1988). We agree.

A

The Colorado statute of limitations for the enforcement of rights which are set forth in an instrument securing the payment of a debt is six years after the claim for relief accrues. Specifically, section 13-80-103.5(1)(a), 6A C.R.S. (1987), provides a six-year limitation on:

All actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action, all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing debt, and all actions of replevin to recover the possession of personal property encumbered under any instrument securing any debt.

A claim for relief on a promissory note accrues the day after the note matures. Nagy v. Landau, 807 P.2d 1227, 1228 (Colo.App.1990). Thus, under the Colorado statute, the claim for relief on the Bumann note accrued on December 29, 1981, and the state statute of limitations would have expired on December 29, 1987.

The FDIC was appointed receiver of First National on February 14, 1985--before the Colorado statute of limitations had run on the note. The federal statute of limitations for money damages provides:

Every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract, express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues.

28 U.S.C. § 2415(a) (1988).

The parties do not disagree that under the federal statute the FDIC's claim for relief did not accrue until First National was placed into receivership. ¹ The FDIC's claim for relief accrues, however, only if the FDIC acquires the claim before the state statute of limitations expires; that is, the subsequent transfer of the note cannot revive a claim already barred under state law. FDIC v. Wheat, 970 F.2d 124, 128 n. 7 (5th Cir.1992); FDIC v. Hinkson, 848 F.2d 432, 434 (3d Cir.1988). Because the Colorado statute of limitations had not run as of February 14, 1985, when the FDIC's claim for relief accrued, 28 U.S.C. § 2415(a) preempted the state statute of limitations as a result of the FDIC's receivership. ² Thus, FDIC was not barred from asserting its rights under the federal statute of limitations.

B

On January 12, 1987, the FDIC assigned to Lease Finance its "right, title and interest" in the Bumann notes which Lease Finance purchased from the FDIC. The subsequent assignment from Lease Finance to Tivoli also transferred the "right, title and interest" in the note. Bumann and Tallman contend that because Lease Finance and Tivoli are private parties, they do not receive the benefit of the federal statute of limitations set forth in 28 U.S.C. § 2415(a) and are bound by the state statute of limitations. The result of this contention is that although the FDIC could have recovered the amount of the note, Tivoli is barred from recovery.

Assignment of a note by the FDIC to a private party allows the assignee to proceed under 28 U.S.C. § 2415(a) (1988). The right of a private-party assignee to seek recovery pursuant to the federal statute of limitations has been upheld by nearly every court that has examined the issue. See FDIC v. Bledsoe, 989 F.2d 805 (5th Cir.1993) (holding that the federal statute of limitations applies to actions brought by assignees of the failed institutions' receiver); North Am. Credit Consultants v. Garlick Sales & Service Co., No. CIV-91-1066-C, 1992 WL 477016 (W.D.Okla. Oct. 20, 1992) (same); Fall v. Keasler, No. C 90 20643 SW, 1991 WL 340182 (N.D.Cal. Dec. 18, 1991) (same); Mountain States Fin. Resources Corp. v. Agrawal, 777 F.Supp. 1550 (W.D.Okla.1991) (same); White v. Moriarty, 15 Cal.App.4th 1290, 19 Cal.Rptr.2d 200 (1993) (same); Cadle Co. II, Inc. v. Stamm, 633 So.2d 45 (Fla.App.1994) (same); Martin v. Pioneer Title Co., No. 96438, 1993 WL 381101 (Idaho Dist. July 8, 1993) (same); Cadle Co. II, Inc. v. Lewis, 254 Kan. 158, 864 P.2d 718 (1993) (same); Central States Resources Corp. v. First Nat. Bank in Morrill, Nebraska, 243 Neb. 538, 501 N.W.2d 271 (1993) (same); Cadle Co. v. Matheson, 870 S.W.2d 548 (Tex.App.1994) (same); Pineda v. P.M.I. Mortgage Ins. Co., 843 S.W.2d 660 (Tex.App.1992) (same); Thweatt v. Jackson, 838 S.W.2d 725 (Tex.App.1992) (same), error granted (Apr. 7, 1993). But see Thweatt v. Jackson, 838 S.W.2d 725 (Tex.App.1992) (Powers, J., dissenting) (stating that 12 U.S.C. § 1821(d)(14) applies only to actions brought by the FDIC, and not to actions brought by its assignees), error granted (Apr. 7, 1993); Federal Debt Management, Inc. v. Weatherly, 842 S.W.2d 774 (Tex.App.1992), error granted (Tex. Apr. 7, 1993) (same).

Subsection 2415(a) applies a six-year statute of limitations for "every action for money damages brought by the United States or an officer or agency thereof." Bumann and Tallman assert that the plain language of the federal statute clearly limits the statute to actions brought by the United States and does not extend to private assignees, much less second assignees.

Assignments are not specifically provided for by the terms of subsection 2415(a). The statute is neither ambiguous nor unambiguous; it is silent. Where the federal statute is silent, courts are to fill the statutory gaps by referring to principles of common law. Bledsoe, 989 F.2d at 810. Justice Jackson explained:

The federal courts have no general common law.... But this is not to say that wherever we have occasion to decide a federal question which cannot be answered from federal statutes alone we may not resort to all of the source materials of the common law.... Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the terms of the Constitution itself.... Federal common law implements the federal Constitution and statutes, and is conditioned by them.

D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 469-72, 62 S.Ct. 676, 685-86, 86 L.Ed. 956 (1942) (Jackson, J., concurring) (emphasis added).

Because the statute is silent regarding the application of the federal statute of...