Winterbrook Realty, Inc. v. FDIC

• Decision Date: 22 April 1993
• Docket Number: Civ. No. 90-561-JD.
• Citation: 820 F. Supp. 27
• Parties: WINTERBROOK REALTY, INC., et al. v. The FEDERAL DEPOSIT INSURANCE CORPORATION, et al.
• Court: U.S. District Court — District of New Hampshire

820 F. Supp. 27

WINTERBROOK REALTY, INC., et al. v. The FEDERAL DEPOSIT INSURANCE CORPORATION, et al.

Civ. No. 90-561-JD.

United States District Court, D. New Hampshire.

April 22, 1993.

Duncan J. Farmer, Laconia, NH, Peter D. Wenger, Bedford, NH, for plaintiffs.

William M. Greene, Campton, NH, for defendants.

ORDER

DiCLERICO, Chief Judge.

In this action, plaintiffs Winterbrook Properties, Inc. ("Winterbrook") and Thomas N.T. Mullen, sole stockholder and director of Winterbrook, have sued defendants the Federal Deposit Insurance Company ("FDIC") as receiver of the Bank of New England, N.A. (the "Bank") and Lowell Union Properties, Inc. ("LUP"), originally a wholly owned subsidiary of the Bank and now a wholly owned subsidiary of the FDIC. The action alleges breach of an oral contract, misrepresentation, quantum meruit and unjust enrichment. The plaintiffs originally filed suit against the Bank and LUP in the Grafton County Superior Court on December 4, 1990. On December 14, 1990, the defendants removed the action to the United States District Court for the District of New Hampshire pursuant to 28 U.S.C.A. § 1441 (West 1973 & Supp.1992) and 28 U.S.C.A. § 1446 (West Supp.1992) based on diversity of citizenship. On January 6, 1991, the Office of the Comptroller of the Currency declared the Bank insolvent and appointed the FDIC receiver of the Bank. The FDIC has filed a motion for summary judgment. For the following reasons, the court grants the FDIC's motion.

Background

The Bank held a mortgage secured by a number of units at Ledgewood Village Condominium in Campton, New Hampshire. In November 1989 the Bank foreclosed on the mortgage by selling the property to LUP. At the time of foreclosure, the condominium project was incomplete. The plaintiffs allege the Bank orally authorized them to act as agents to sell the units, establishing an oral real estate listing contract. The plaintiffs contend that on December 13, 1989, they submitted a detailed proposal of work to be done and requested that the Bank sign the proposal to indicate acceptance. Although the Bank never signed the proposal, the plaintiffs assert the Bank orally authorized the work and paid several invoices for work performed according to the proposal. The plaintiffs claim they have billed the defendants on approximately twenty-one occasions in the total amount of $64,748.45 and the defendants have paid them on numerous occasions a total amount of $58,827.83. The plaintiffs claim they secured eight purchasers who paid deposits and executed non-binding reservation agreements but the defendants failed to close the sales on the units. The plaintiffs claim the defendants agreed to pay them commissions on the sales amounting to $83,500. They seek the commissions and compensation for damage to their reputation resulting from their inability to close the sales.

Discussion

Summary judgment is appropriate when material facts are undisputed and the moving party is entitled to judgment as a matter of law. Rodriguez-Garcia v. Davila, 904 F.2d 90, 94 (1st Cir.1990) (citing Fed.R.Civ.P. 56(c)). The burden is on the moving party to establish the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986), and the court must view the record in the light most favorable to the nonmovant, according the nonmovant all beneficial inferences discernable from the evidence. Caputo v. Boston Edison Co., 924 F.2d 11, 13 (1st Cir.1991). However, once the movant has made a properly supported motion for summary judgment, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(e)).

The FDIC moves for summary judgment, contending the plaintiffs' claims are barred by 12 U.S.C.A. § 1823(e) (West 1989) and the principles established by D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and subsequent cases. The plaintiffs counter the D'Oench doctrine and § 1823(e) do not bar claims for services rendered to a failed bank or claims based on misrepresentation. They also contend the D'Oench doctrine and § 1823(e) do not bar claims based on quantum meruit, unjust enrichment or claims based on a violation of New Hampshire law concerning real estate commissions. The court agrees with the FDIC that the D'Oench doctrine bars the plaintiffs' claims.

I. The D'Oench Doctrine and § 1823(e)

In D'Oench, the defendant executed a note payable to a bank with the understanding the bank would never call the note for payment. 315 U.S. at 454, 62 S.Ct. at 678. When the FDIC acquired the note and demanded payment for it after the bank failed, it learned of the secret agreement. Id. The D'Oench Court held the defendant could not use the secret agreement as a defense to the FDIC's payment action. Id. at 461, 62 S.Ct. at 681.

The test is whether the note was designed to deceive the creditors or the public authority, or would tend to have that effect. It would be sufficient in this type of case that 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. at 460, 62 S.Ct. at 681. The D'Oench doctrine has been extended to apply to situations somewhat different from the facts of D'Oench itself. In re NBW Commercial Paper Litig., ("NBW"), Nos. 90-1755, 91-0626, 1992 WL 73135, at *3, 1992 U.S.Dist. LEXIS 2842, at *12 (D.D.C. Mar. 11, 1992).

Nevertheless, the paradigmatic application of the D'Oench doctrine remains in the lender-borrower context; the vast majority of cases interpreting the doctrine have involved, despite the complexity of the transaction or the procedural posture of the case, individuals or entities who owed money to the bank and who sought to avoid payment of their notes by asserting an oral side agreement.

NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at * 4, 1992 U.S.Dist. LEXIS 2842, at *16. The D'Oench doctrine bars "`affirmative claims as well as defenses which are premised upon secret agreements.'" In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1344 (1st Cir.1992) (quoting Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 49 (1st Cir.1991)).

The D'Oench doctrine furthers the policy that bank examiners must be able to rely on the books of the institutions which they insure to assess accurately the institutions' solvency. NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at * 10, 1992 U.S.Dist. LEXIS 2842, at *36-37.

D'Oench determines, as between the two "innocents" (the FDIC and the "wronged" bank customer) who should bear the cost of the failed bank's wrongs. If the customer bears the slightest blame—by failing to protect himself by getting an agreement in writing, then the scale tips in favor of the FDIC and D'Oench bars the claim or defense.

NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at *15, 1992 U.S.Dist. LEXIS 2842, at *56.

Section 1823(e) of Title 12 of the United States Code Annotated fosters the same policies that generated the D'Oench doctrine. NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at * 4, 1992 U.S.Dist. LEXIS 2842, at *16. The statute provides:

No agreement which tends to diminish or defeat the interest of the FDIC in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the FDIC unless such agreement—

(1) is in writing

(2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,

(3) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and

(4) has been, continuously, from the time of its execution, an official record of the depository institution.

12 U.S.C.A. § 1823(e). The United States Supreme Court has interpreted § 1823(e) to bar a plaintiff from asserting as a defense against the FDIC that a note was procured by fraudulent misrepresentations made by a bank officer. Langley v. FDIC, 484 U.S. 86, 88-89, 93, 108 S.Ct. 396, 399-400, 402, 98 L.Ed.2d 340 (1987). Both the D'Oench doctrine and § 1823(e) are designed to protect the government from secret agreements. NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at * 9, 1992 U.S.Dist. LEXIS 2842, at *33. They are also based on a policy favoring creditors and depositors over those who can protect themselves from harm by insisting on a written agreement meeting the requirements of § 1823(e). NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at *10, 1992 U.S.Dist. LEXIS 2842, at *37.

In NBW, the District Court for the District of Columbia thoroughly examined the relationship between the D'Oench doctrine and § 1823(e). NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at *5-28, 1992 U.S.Dist. LEXIS 2842, at *11-56. The NBW court found that although courts have traditionally interpreted the D'Oench doctrine and § 1823(e) together, they are not identical in scope. See NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at *8, 1992 U.S.Dist. LEXIS 2842, at *32. The NBW court held § 1823(e) governs only cases involving a specific "asset." NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at *9, 1992 U.S.Dist. LEXIS 2842, at *33-34. "Under no circumstances, however, should asset be interpreted so broadly as to encompass any liability or other existing condition which affects the financial condition of the receivership." Id., 1992 WL 73135, at *13, 1992 U.S.Dist. LEXIS 2842, at *47.

The NBW court found the D'Oench doctrine is broader in scope than § 1823(e), governing claims not involving an "asset" under § 1823(e) but implicating the same policies. NBW, Nos. 90-1755, 91-0626, 1992 WL 73135, at *9-10,...