Académique Documents
Professionnel Documents
Culture Documents
July 1, 1992
No. 91-1976
IN RE:
The
opinion of
this
court issued
on
June 19,
1992,
is
amended as follows:
On page
word "taxes."
On page
43, line
6 after block
quote - "Court"
____________________
No. 91-1976
IN RE:
Debtor,
__________
Appellee,
should be
v.
Appellant.
__________
No. 91-1977
IN RE:
Debtor,
__________
Appellant,
v.
Appellees.
____________________
____________________
Before
____________________
George J. Nad
_____________
and Cullen & Resnick were on brief for 604 Columbus Avenue.
________________
were on
brief for
Insurance Corporation.
____________________
____________________
Federal Depo
_____________________
*Of the Third Circuit, sitting by designation.
loan
transaction that
advice,
"[n]either a
appeals
require
applicability of
us
This
well illustrates
borrower, nor
to
receiver
borrower an
institution.
when it
seeks
be."1
inter
_____
alia,
____
These
the
the
to enforce
obligation formerly
Polonius'
defenses available to
a lender
determine,
certain federal
is a case involving
against
held by a
a bankrupt
failed financial
PROCEDURAL PATH
PROCEDURAL PATH
This
the default by
Trust") on payment of a
Bank").
loan from
Following
Trust's
principal
beneficiary,
Millicent
C.
Young
("Young").2
To
Trust
forestall the
foreclosures
by the
Bank, both
the
____________________
1.
District
Young
of Massachusetts.
as
against
co-plaintiff,
the
Bank,
In
1988, the
initiated an
its
principal
May
$140,000 in
Trust, with
adversary
secured
proceeding
creditor.
damages
on claims
In
plaintiffs
of fraud
and
fees.
The
improperly applied
incurred by
the Trust
similar expenses.
financing fees,
It also found
pursuant to 11 U.S.C.
an amount equal
fees.
from the
of a
Trust's
Bank to
estate
other creditors by
the Trust
equivalent
to
Under
of the
to the damages,
It ordered the
transfer
security interest in
the total
of
the
the
damages,
court,
Massachusetts
the
Bank
banking officials.
-7-
was
declared
The FDIC
unsound
was
by
appointed
August
1991,
the
district
court
affirmed
in
the FDIC
1823(e).
Invoking
bankruptcy court's
judgment
that was
premised on
the
aspects of
We
we think it useful
to review
the dual
role
of the
FDIC in
bank failures.
Our
recent
932
F.2d
46,
48
(1st
Cir.
1991),
provides an
deposits.
Although
there are
many options
available to the FDIC when a bank fails, these
options generally fall within two categories of
approaches, either liquidation or purchase and
assumption. The liquidation option is the easiest
method,
but
carries
with
it
two
major
disadvantages.
First, the closing of the bank
weakens confidence in the banking system. Second,
there is often substantial delay in returning funds
to depositors.
The preferred option when a bank fails, therefore,
is the purchase and assumption option. Under this
arrangement, the FDIC, in its capacity as receiver,
sells the bank's healthy assets to the purchasing
bank in exchange for the purchasing bank's promise
to pay the failed bank's depositors. In addition,
as receiver, the FDIC sells the "bad" assets to
itself acting in its corporate capacity. With the
money it receives, the FDIC-receiver then pays the
purchasing
bank enough money to make up the
the
case at
hand, we
first summarize
the
See In
___ __
1990)
("Bankruptcy
transaction
at
issue in
Court
these
Opinion").
appeals
loan
originated in
the
two buildings
Massachusetts
("the
restaurant operated on
The
Columbus
Avenue
Avenue in Boston,
properties"),
and
-9-
Young
was
company.
the
owner
Among her
of
business
contracting
partners
and
construction
was Carl
Benjamin
October
availability for
1985, Young
and
Benjamin
learned of
properties as condominiums,
share
the
agreed to
resell the
restaurant, and
restaurant.
attorney,
Steven Kunian
("Kunian"), suggested
that she and her partners seek financing for the purchase and
renovation of
the Bank
In December
terms
of a
other
partners.
The
from time to
1985,
time on
Benjamin negotiated
Bank on
Bank
behalf of
was
loan
the
represented
in
these
Weiner also
was
Although not a
-10-
consultant's
fees, and
was regarded
by Gauthier
and other
Bank's Executive
for
when
before
1986.
Committee.
the Executive
approval of the
Committee approved
it on
January 15,
agreed to
pledge
loan.
her
residence as
of the
additional
Executive
time
before
the
Executive
Committee
voted
to
would
Weiner personally
approval
of the loan.
to vote in
favor of the
other
members
of
Weiner's kickback
the
loan.
There
Executive Committee
were
aware
that
of
they voted
Kunian
represented
at the closing on
both
the loan on
the
Bank
and
the
-11-
Kunian
suggested
Columbus
closing
with
that Young
and
Young as
Columbus Avenue
its trustee.
her
associates hold
a realty trust.
Realty Trust
Young was
beneficial interest
in the
trust, while
partners, including
the
At the
was created,
given 62.5%
each of
of the
her three
12.5% beneficiary.
Security Agreement"
Security
Agreement
("L&SA"),
("L&SA Addendum"),
The
an "Addendum
Bank, in
and
to Loan
&
a "Construction
lend the
Trust
$1,500,000.
The Bank used a
following provisions:
SECTION 6.
6.01
The Borrower agrees that any deposits or
other sums at any time credited by or due from the
Bank to the Borrower, or any obligor or guarantor
of any liabilities of the Borrower in possession of
the Bank, may at all times be held and treated as
collateral for any liabilities of the Borrower or
any such obligor or guarantor to the Bank.
The
Bank may apply or set-off such deposits or other
sums against said liabilities at any time.
. . . .
SECTION 8.
EXPENSES:
parties also
established
advancement of
the
the
executed
following
proceeds
the
Columbus Avenue
an Addendum
of
schedule
the
loan
to this
L&SA,
for the
Bank's
to
Trust:
the
properties
and
the restaurant;
Avenue
properties,
requisitions approved
by the
but
only
upon
itemized
and the
bank; and $100,000 for the "soft costs" incurred with respect
to
the
loan.
"Soft
construction costs
closing
costs"
of the
covered
renovation
the
effort, and
promissory
note, the
Trust
gave the
various
Bank,
non-
included
To secure its
inter alia,
_____ ____
in
her
individual
mortgages on her
capacity,
also
gave
the
Bank
the
closing,
the
Bank
disbursed
approximately
loan.
The
-13-
Bank
A signature card
was
names of
created for
Benjamin,
the
account bearing
the
the signature
card had
disbursement by
access to
the Bank.
Those listed on
loan proceeds
Young was
Young,
upon their
apparently not
aware
loan on the
Trust's ability to
hinged on
have understood
assumptions
anticipated
was
in First
that
at the closing.
$100,000
Loan Agreement
could generate
the
soft
would not
would have to be
partners.
for
One
of
costs
cover those
supplemented by funds
that the
to complete
the
approximately
closing,
Gauthier to
account,
but did
violation
agreement.
of
$250,000
in three
directed
large
pay
within
payment.
Weiner
these advances
so without
the procedures
specified
in
found that
Trust's
of Young
and in
the First
Loan
the Bank
paid
-14-
of
personally
into the
the approval
itself a total of
forty-seven days
the
to cover
$26,300
was
without
Young's knowledge
used
to
withdrawn by
make
thereafter,
attempted
kickback
Young
Benjamin
from
The
the loan
account
or authorization, which
payments
learned
of
to
was then
Weiner.
Benjamin's
sum of
Sometime
conduct,
and
the six-month
term
First Loan
Agreement
the loan.
It therefore negotiated a
the first
1986,
$1,750,000,
guarantees
the
loan.
signed a
which
Agreement").
to those
In addition,
On
promissory note
was secured
by
the
Trust, executed
identical
the Trust
of the
September 12,
to the
same mortgages
and
Young, on behalf of
new L&SA
that contained
in
the L&SA
accompanying the
the Addendum to
Bank for
provisions
previous
Second
The
Bank
shall
advance the
loan
proceeds
approximately as follows:
a.
$1,500,000.00 at
closing for acquisition of real estate and personal
property[;] b. $190,000.00 for construction costs
. . . [;] c.
$60,000.00 for soft costs incurred
with respect to the loan.
At the closing of the Second Loan Agreement, $1,580,151.11 in
loan proceeds were disbursed to pay the $1,524,516.11 balance
-15-
remaining
on
the
First
Loan
agreement
and
$55,635
in
at 610
$692,400 and
paid the
"Agreement to
The
In
March
1987,
Trust, in
Agreement and
loan proceeds
of the
Bank withdrew
soft costs,
including
closing
fees,
interest,
charges
fees.
for
the
loan
The
Trust
1987, the
found
that
unable to
Bank began
mortgages it held as
court
was
make
foreclosure of
reasons
payment.
for
the
In
the various
The bankruptcy
Trust's
default
to finance
further
-16-
payments;
$109,406.12 in
soft
costs.
and
the
Bank's
overapplication
second loan to
of
payment of
Bank's overapplication
of loan
costs and
the kickback
payments,
that
was by
far
the
single
most
Bank entered
court, the
into and
administered
alleged that
the loans
for the
the two
loans
to
the Bank.
the payment
of
soft
costs.
The
breach
the Bank's
in the Trust's
bankruptcy estate to
other creditors.
In addition,
those of
the Trust
court conducted
Trust $138,011.66 in
was assessed
as damages
to Weiner by Benjamin.
a seven-day trial.
damages.
for the
Of
It
this amount,
kickback payments
-17-
on claims of conversion,
Massachusetts law.
represented
the
bankruptcy court
the loan proceeds
by
the two
The remaining
total
amount
fraud under
$111,711.66
of
soft
in
costs
damages
that
the
loan agreements
i.e.,
$2,305.54 on
the First
The
bankruptcy
$138,011.66
damages award
court
be
also
ordered
supplemented by
that
the
an award
of
also
of post-judgment
interest
at
the contract
rate
11
U.S.C.
subordinating
priority and
to the full
fees.
Trust's
It
510(c),
the
the
Bank's secured
court
entered
claim
to
estate a
amount equal
portion
to the
total
of its
damages.
of
an amount equal
attorney's
Bank transfer
security
order
the claims
an
to the
interest in
The bankruptcy
an
court
-18-
While
judgment
the
Bank's
was pending,
liquidating agent of
appeal
the FDIC
the bankruptcy
breach
of
of
its
damages.
bankruptcy
court's
judgment as
and
fraud
to the
claims,
as
secured interest
in an
In addition, the
amount
conversion,
well
equal to
argued
D'Oench
_______
counterpart, 12
U.S.C.
doctrine
1823(e)
or
precluded
its
the total
special federal
the
as
subordination
defenses as to each
that
court's
receiver and
contract,
challenge to the
the
was appointed
as defendant-appellant.
of
of
its
The FDIC
statutory
the bankruptcy
and Benjamin.
in due
The
course status
accorded it
special holder
law
as the
first
FDIC's right
time on
challenged the
appeal.
to raise
They
FDIC, as
these defenses
also contested
for the
the bankruptcy
-19-
In
August
1991,
bankruptcy court's
the
district
costs.
court
affirmed
the
of the plaintiffs'
for payment of
was entitled to raise its federal defenses for the first time
on
against it
in its
capacity as the
Bank's receiver.
the
FDIC's secured
claim on
the
Trust's
subordination
Trust's estate
in an
plus
interest.
claims, i.e.,
It
reversed,
subject to
equitable subordination.
The district court vacated the bankruptcy court's
of
$26,300
between
Benjamin
entitled
based
on
and Weiner.
the kickback
Finding that
arrangement
the
FDIC was
appeal, the
secret
of damages
award
agreement
doctrine.
squarely
It therefore
the
coverage
of
was a
the
against
Because
-20-
arrangement
rejected
loan
could
not stand
against
the
FDIC, the
court
agreements
and
the
mortgages
on
the
plaintiffs'
properties
void
as illegal
contracts in
public policy.
-21-
contravention of
substantially the
the bankruptcy
The
court's judgment to
and the
in their
the district
its receivership
capacity based
any damages
on the
soft
and that
the
equitable subordination
misappropriated
soft
equitable subordination
damages caused
challenges
by the
the district
costs
monies, as
well
as
the
to reflect the
Bank's misappropriation.
court's affirmance
that the
It further
of an
award of
____________________
3.
Following
and the Trust docketed separate appeals with this court. The
FDIC's appeal is No. 91-1977; the Trust's is No. 91-1976.
4. Young is not a party to the Trust's appeal. Neither the
Trust nor
Young has
challenged the
district court's
affirmance of the bankruptcy court's refusal to void the
mortgages on their properties.
-22-
post-judgment interest
on the $111,711.66 in
damages on the
time
on appeal.
does
not
bar its
erred
recovery on
first
its
claims relating
to the
when
incorrectly included
amount of
kickback scheme.
court
it
held
that
the
bankruptcy
court
of the overall
subject to equitable
an
appeal
from
a district
court's
review
we "independently review[]
of
a
the
standard
to
findings
conclusions of law."
(1st Cir. 1991).
880
F.2d
of
fact
novo
review
to
(1st
Cir.
standard
de
1491, 1493
and
1989) (bankruptcy
to de novo review);
of review
applied
to
court's
Briden v.
_________
(clearly erroneous
bankruptcy court's
factual
findings).
-23-
DISCUSSION
DISCUSSION
I.
DISTRICT COURT REVIEW OF THE FDIC'S FEDERAL DEFENSES FOR
THE FIRST TIME ON APPEAL
Before
underlying
considering
its
the
damages award
Trust's
against
state
the
law
Bank, we
claims
first
address
the
FDIC's
arguments
due
course and
plaintiffs'
against it
and
two
doctrines
resulting
barred
equitable
merits of
special
defenses
D'Oench
_______
claims
that
all of
the
subordination
as a
threshold
Institutions
("FIRREA"),
(codified
Reform, Recovery
Pub.
at 12
L.
No.
U.S.C.
on the Financial
and Enforcement
101-73,
103
1811-1833e),
Stat.
Act of
183
1989
(1989)
which provides
pertinent part:
(13)
-24-
in
(B)
Rights and
receiver
Remedies of
conservator or
1821(d)(13)(A)-(B).
judgment in favor
The
of
of the Trust
1821(d)(13)(B).
It
remedies" granted
the FDIC in
first time
analysis
on its
on appeal.
reading
The
district court
of FIRREA's
text and
based this
legislative
history.5
____________________
5. As evidence of Congress' special solicitude for the
preservation of the rights of the FDIC in its receivership
capacity, the district court emphasized FIRREA's provision of
1821(d)(13)(B) conflicted
Eleventh
Circuits,
interpretation
of
both
of
with that of
which
FIRREA.
In
have
the Fifth
rejected
and
this
Olney Savings
& Loan
________________________
Cir.
1989),
1821(d)(13)(B)
the
did not
Fifth
in
Circuit
any way
modify the
ruled
D'Oench
_______
In
1506
substantive
that
Accordingly,
raise the
Id. at 275.
___
LEXIS
2709, 60
followed Olney,
_____
U.S.L.W. 3780
(1992), the
Eleventh Circuit
Trust Corporation
("RTC") that
of the Resolution
1821(d)(13)(B) entitled it
Id. at 1511.
___
In Baumann, the
_______
the interpretation of
____________________
receiver can often change the character of the litigation;
the stay gives the FDIC a chance to analyze pending matters
and decide how best to proceed." H.R. Rep. No. 54(I), 101st
Cong., 1st Sess. 331 (1989), reprinted in 1989 U.S.C.C.A.N.
_____________
86, 127. The district court further relied on two decisions
of the Texas Court of Appeals holding that
1821(d)(13)(B)
permits the FDIC to raise the D'Oench doctrine for the first
_______
time on appeal. See FDIC/Manager Fund v. Larsen, 793 S.W.2d
___ ___________________________
37 (Tex. Ct. App.), writ granted, 34 Tex. Sup. Ct. J. 91
____________
(1990); FSLIC v. T.F. Stone-Liberty Land Assocs., 787 S.W.2d
_________________________________________
475 (Tex. Ct. App. 1990).
-26-
1821(d)(13)(B) advanced
The
Baumann
_______
court
concluded
that
to
read
in this case.
the
statute
otherwise
would
substantive
be
rights,
existing statutes
the
to
grant
federal
because neither
FIRREA
receiver
new
nor previously
We
Olney
_____
time on appeal.
Id.
___
think
that
interpretation
hold that the
of
the
and
1821(d)(13)(B) is
district court
Baumann
_______
courts'
the proper
one, and
erred when it
read FIRREA
as
raise its
We agree with
to argue [a
time on appeal."
accords
raise
Id. at 1512.
___
the FDIC
the
same
in its
receiver is
receivership capacity
defenses
corporate capacity.
It
available
to
the
standing to
FDIC
entitled to raise
in
its
FDIC as
for the
federal defenses to
on appeal, we
-27-
the Trust's
court
to raise
could have
defenses.
FDIC
not grant it
district
permitted the
the right
court
to raise its
nonetheless
had
its federal
1821(d)(13)(B) does
federal defenses,
the
discretion,
in
the
its
FDIC
relies
There,
principally
the
Eleventh
on
Baumann
_______
Circuit
receiver's D'Oench
_______
time on
appeal.
that
the
Id. at
___
RTC had
held
The court
the
this
that
its
it to address the
1513.
not had
for
the first
opportunity to
present its
prevent
defense
court
the
RTC from
it had
being
"penalized
no opportunity
concluded that
it
would
Id.
___
In
for
not
to present,"
the
be appropriate
to
first time of
appeal.
Id.
___
The Fifth
Circuit has
in
See
___
-28-
919
in this circuit
that arguments
the first
1041, 1045
(1st
Cir. 1990);
Brown v.
_________
Trustees of Boston Univ., 891 F.2d 337, 359 (1st Cir. 1989),
_________________________
U.S. ___,
Like
in exceptional
3217 (1990).
appellate court
circumstances,
110 S. Ct.
See United
___ ______
1982),
we
outlined
appropriate exercise
the
criteria
of our
for
determining
discretion to hear
the
new issues.
purely legal, such that the record pertinent to the issue can
be developed
no further;
meritorious;
whether
judicial economy
reaching
because
the
the same
issue
issue
claim appears
would
is likely
circumstances
of
this
the first
time
to
be
promote
case
were
Id.
___
sufficiently
on appeal
-29-
the
merits of
the
federal
defenses
raised by
The question
Trust's
development
the
was purely
of
the
receivership capacity.
and
record;
judged
by
further
the
FDIC's
federal
district
court's
the
kickback
promoted
legal
factual
were colorable,
acceptance
in its
claims
defenses
the FDIC
claims;
judicial
by a ruling on
the FDIC's
to bar damages on
economy
would
have
been
the merits of
the applicability of
increasing volume of
and
finally, it
would
have been
unfair
when it
bankruptcy
to
circumstances would
to a
To
defenses in such
purpose of allowing
next
review the
question
of
whether the
D'Oench
_______
doctrine,
or
its
statutory
counterpart,
12
U.S.C.
-30-
1823(e),6
bars
scheme and
the Trust's
any equitable
claims
based
on the
kickback
FDIC as
receiver.
In
D'Oench, the
_______
brought by
the FDIC
Supreme
Court
to collect
on a
the borrower
outside
held
The
Supreme
doctrine of equitable
using
a "secret
was not
entitled to rely
contained
announced a
in
on
the lender
federal
agreement" with
____________________
suit
the documents
Court
borrower's promissory
that in
the original
common
law
borrower from
lender as
6.
As amended by FIRREA,
1823(e) provides:
No agreement which tends to diminish or defeat the
interest of the Corporation in any asset acquired
by it under this section . . . , either as security
for a loan or by purchase or as receiver of any
insured depository institution, shall be valid
against the Corporation 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 committee, and
(4) has been, continuously, from the time of
its execution, an official record of the
depository institution.
We treat
1823(e) as the statutory codification of the
D'Oench doctrine.
See Capizzi v. FDIC, 937 F.2d 8, 9 (1st
_______
___ ________________
Cir. 1991); FDIC v. P.L.M. Int'l, Inc., 834 F.2d 248, 253
____________________________
(1st Cir. 1987).
-31-
defense
not require
"The
test
that the
is
whether
payment.
was
Id.
___
D'Oench did
_______
intent to
designed
to
defraud:
deceive
maker lent
himself to a
scheme or
arrangement whereby
the
Id.
___
at 460.
The
expanded
contours
since
of
the
the
D'Oench
_______
Court's
doctrine,
original
which
decision,
have
are well-
at 48-49;
FDIC v. Caporale,
________________
931 F.2d 1, 2
1987).
FDIC in
as receiver."
(citing cases).
Timberland Design,
_________________
932 F.2d
position of
We have
claims as
well as
Id.
___
involving secret
in contract.
86 (1987)).
the
defenses which
In
at 49
are premised
either in
And finally,
-32-
time
it was
entered into,
public authority."
Applying
district
tend to
mislead the
Id.
___
the principles
court held
that
enunciated in
D'Oench estopped
_______
Timberland, the
__________
the Trust
scheme.
It found
from
on the
Weiner
and
Benjamin
were
"secret
agreement"
should not
have been
Trust contends
for the
that D'Oench
_______
district
court for
several
reasons.
It
For
similar reasons
written loan
a breach of the
agreement, and
kickback arrangement.
certain recognized
In
not a
breach of
the unwritten
exceptions
to the
D'Oench doctrine:
_______
it
-33-
that
it
was
deception
innocent
of
because Benjamin
any
was
intentional
not acting
or
as the
negligent
Trust's
the kickback
payments.
which
A.
We
find little
in the
argument.7
that
merit
because
As we
its
Trust's first
and
argument,
Trust's contention is
conversion
claims
are
"not
premised
apply.
upon"
the
According
kickback
to the
Trust, "the
assets,
arrangement,
whereas the
to
these
kickback arrangement
misappropriations themselves
respect
cannot
Trust's position
D'Oench
_______
claims,
as
well
its
equitable
____________________
7.
subordination of $26,300
in lieu
explicitly
the
premised
Bankruptcy Court
of
id. at 377
___
to the
Trust's
were in
fact
arrangement.
See
___
(equitable subordination).
elaborate as to how
those relating
favor.8
kickback
at 374 (fraud);
does the Trust
on
of damages,
Nor
kickback arrangement,
provide an
claims
fall
squarely
under
Trust next
of contract
argues that
D'Oench does
_______
not bar
Bank for
its
the $26,300
loan agreement.
. .
1981),
which held
that
the FDIC
cannot
invoke
facially manifests
bilateral obligations
and
Id. at 746
___
of Howell, the
______
____________________
8. The Trust's attempts to distinguish Weiner's conduct from
the tortious conduct of the Bank are completely without
merit.
The Trust prevailed on its tort claims against the
Bank in bankruptcy court on a respondeat superior theory, and
cannot now evade the precepts of D'Oench by intimating that
_______
these tort claims against the Bank had nothing to do with the
kickback arrangement masterminded by Weiner.
-35-
the same
argument with
breach
claim as
asserted
of contract
D'Oench's
_______
application to
"bilateral obligations"
its
of the
respect to
in its
tort claims,
the
challenge to
i.e., that
not the
secret kickback
contract claim.
the
breach of
founded
on
the
kickback
arrangement.
See
___
The
Trust's
breach
existence of
other hand,
of
contract
claim required
proof
lessee.
Seventh Circuit
ruled
See
___
of a
obligations on
that the
FDIC, as
the
Howell, on the
______
imposed bilateral
of
both
at 747.
The
successor to
the
Id.
___
In
Howell, the
______
lessee's contract
defenses
the failure
of the
conditions of the
original lessor
lease.
Id.
___
to fulfill
The limited
the express
exception to the
-36-
D'Oench
_______
doctrine
crafted by
Howell does
______
not apply
to the
The Trust
further
claims
that
two
addressed
the
recognized
decision in
other
issue
of
the
The
U.S.
86
FDIC's
(1987),
right
to
while
invoke
1823(e), is also
the
renders
real defense
loan
agreement out
inducement,
does
not
agreement
of
1823(e),
which
preclude
the
that their
fraud
in the
entirely
void
and a
renders the
FDIC's
of
and
loan agreement
assertion
of
which
takes
defense of fraud
the
in the
voidable but
1823(e).
participation in a
by misrepresentations as
factum,
land transaction
to the size
and
____________________
9.
Since
the
note
makers'
inducement.
properly
argument was
invoke
think
purposes of
1823(e) to
that
the
D'Oench.
_______
the
fraudulently
procures
Court's
fraud in
without
nature or contents.
distinction
for
the inducement
and
borrower's
that borrower's
the context
in the factum as a
by the note
Id. at 94.
___
(1st Cir.
fraud in
real defense
instrument
of
Langley
_______
1823(e) between
claim
original lender
signature
knowledge
to
of its
an
true
1991) (noting
that in
the case of
fraud in
the
leaving no title
capable of
transfer to the
FDIC.").
See
___
Trust
defendant
analogizes
in FDIC v. Turner,
______________
its
signed a blank
of the debtor
In addition, the
the
guaranty
was
that
of
the
guaranty form to
later added.
original
situation to
which
name of the
subsequently
lending bank on
obliterated
with
-38-
correction fluid
Id.
___
at 272.
version
of
When
the
defense of fraud
that
the
loan
to enforce
guaranty, the
in the
defendant
sued
was
factum.
of another bank.
defendant
The
defrauded
this altered
raised
Sixth Circuit
as
to
the
the
agreed
guaranty's
essential
terms,
and
held
that
the
precluded
FDIC
was
therefore
Id.
___
at 275-76.
Review
of these
cases
convinces us
that the
Trust's
under Weiner's
that
consideration
itemized in
the
original
agreement.10
proposed
terms.
claim
it
Unlike
loan agreement,
the note
but
only
to its
maker in Turner,
______
The
character of
underlying
the Trust
cannot
Caporale,
________
931 F.2d
at 2,
n.1.
The Bank,
through Weiner,
____________________
10. The bankruptcy court also found that the damages against
the Bank for both the Trust's tort and contract claims were
limited
to the
$26,300 in
additional "consideration"
extracted from the proceeds of the First Loan Agreement. It
declined to declare the First Loan Agreement unenforceable
because of the illegal consideration, reasoning that to do so
would "penaliz[e] the Bank in the full amount of the loan, an
amount .
. . grossly disproportionate
to the amount
converted."
-39-
induced
the
Trust
misrepresenting
however,
the
no fraud
D'Oench because
_______
Trust
did
to
consideration
in the
the
loan
agreement
involved.
There
factum precluding
there is
not fully
obligation it
execute
no
evidence to
understand
the
assumed by entering
by
was,
application of
suggest that
basic nature
of
the
the
The
did
not fundamentally
alter
the nature
of
the
instruments themselves.
C.
The
that
it
completely
negligent deception.
FDIC
kickback
payments to
negotiated
Weiner
court
scheme.
both
____
improperly
the Trust
Emphasizing
Benjamin and
intentional
that it could
or
not
transferred the
knowledge of
that
involved itself in
that the
the Bank
and
without the
established that
any
because Benjamin
the district
of
innocent
bankruptcy court
were liable
on the
the
the
that
record
the kickback
found that
conversion
count,
the Trust
acting
as its
$26,300 in
agent
or for
its
could not
benefit when
have been
he
removed
to make
kickback payments.
-40-
D'Oench,
_______
the
Trust
cites
turn relies
in
Baumann,
_______
innocence as an exception
a
footnote
to
Vernon v.
__________
(11th Cir.
on an earlier
505 F.2d 790
the Eleventh
Circuit
decision of
(9th Cir.
expressly
the
1974).
rejected
because lack
of bad faith,
recklessness, or
See also
___ ____
934 F.2d
1567 n.14
(11th Cir.
in light of Supreme
an outdated
doctrine of Meo,
___
understanding" of D'Oench).
_______
based on
Baumann emphasized
_______
federal
"any
obligation
not
specifically
Timberland,
__________
this
conducting an examination of
also
stressed
the
basic
"where
the only element of fault on the part of the borrower was his
or her failure to reduce the agreement to writing."
at
49 (citation omitted).
We agree with
-41-
932 F.2d
would tend to
authority."
Id.
___
at
50.
Our earlier
cases
have never
recognized the
"complete innocence"
the invitation to
to by the
adopt it now as
the
to
that
D'Oench is
_______
argument.
professed
by
As
i.e., a
not
we
the Trust
"complete innocence"
D'Oench
_______
there is
is
no "complete
entirely
understand
not
innocence"
dispositive of
it, the
the kind
the
"innocence"
of
paradigmatic
formerly recognized as an
exception to
unrecorded side
the
argument
Trust's
that
the
claim
of
actions
of
"innocence"
Benjamin
is
really
should
not
an
be
not actually
record belies
act on behalf
the assertion
of the Trust.
that Benjamin
The bankruptcy
court
associates.
Loan
Agreement
It was Benjamin
on
behalf
of
Young
and
her
agreed to
the
-42-
obtaining approval
of the
At
the
the closing of
Trust
executed
was
loan by the
formally
authorizing
found that
for
Benjamin to
Trust's funds in
Agreement
created
at which time
signature
withdraw
card
funds from
was
the
other accounts at
Executive Committee.
access the
another for
rental income
one
from the
of the
Trust
and its
principals throughout
acting as an
kickback
with
Agreement.
Weiner."
The
when he entered
Brief
the
Benjamin's actions
scheme
for
into the
Appellant
604
Columbus Avenue
In these circumstances,
to a scheme or
arrangement whereby
Our ruling is
decision in FDIC v.
________
Kasal, 913 F.2d 487 (8th Cir. 1990), cert. denied, ___ U.S.
_____
_____ ______
___, 111 S. Ct. 1072 (1991). In its reply brief, the Trust
draws on language from a dissenting opinion in Kasal for the
_____
general proposition that "it is a perversion of justice to
hold the borrowers responsible for funds misappropriated by a
bank officer."
Id. at 496 (Heaney, J., dissenting).
In
___
-43-
Because
applied
under
find
that
equitable
kickback
we
subordination
agreement, we
the
to bar the
against
do
district
the
not reach
court
correctly
Bank
based
the FDIC's
on
the
arguments
1823(e).
law holder
in due
course doctrine
the
interest
equitable
in
the
addresses this
against the
and
breach of
Trust's
proceeds
for
payment
costs.12
The
FDIC has
does
of
the
bankruptcy
argument to
the bankruptcy
claims for
of
bar the
secured
The
conceded in this
FDIC
court's judgment
Trust's conversion
misapplication of
interest, taxes
FDIC's
estate.
$111,711.66 on the
contract
did not
subordination
Bank for
the federal
and
other
case that
loan
soft
D'Oench
_______
____________________
Kasal, the borrower was totally unaware of a misappropriation
_____
from his accounts by a bank officer. In this case, Benjamin,
a representative of the Trust, both negotiated and carried
out the misappropriations from the Trust's account.
12. The FDIC also argues that the federal holder in due
course doctrine bars the Trust's fraud claim arising from the
kickback agreement.
Because we have already held that the
Trust's claims based on the kickback agreement were barred by
the D'Oench doctrine, we need not address this aspect of the
_______
FDIC's holder in due course argument.
-44-
costs provisions of
agreements.
Instead,
the
D'Oench
_______
federal
doctrine militate
holder in
receivership
purchase
due course
capacity
and
in
when,
assumption
favor
of expanding
doctrine to
as
the FDIC
here, there
transaction
by the
the
in its
has
been
no
FDIC
in
its
corporate capacity.
A.
holder
in
due
course
doctrine
to
the
FDIC
in
the
has emerged
in cases
involving purchase
and assumption
germinative
federal
holder
in
opinion
due
(1982).
acquired a
transaction
makers
FDIC
In Gunter,
______
the
basis
was
of
of,
U.S.
after a purchase
failed
the
Gunter v.
__________
and assumption
Tennessee bank.
development
doctrine
the FDIC in
promissory note
involving a
the
course
in
of the note
inter
_____
alia,
____
The
note
held by the
fraudulent
misrepresentation by the
at 866.
The FDIC
bank.
asserting that
Id.
___
note in
-45-
makers' claims,
Id. at 866-67.
___
claims,13 it accepted
rule of non-
to accomplish
its statutory
objectives.
In reaching
rule.
FDIC's duty
to promote
"the stability
preferred
status
of
the
purchase
court
of and
assumption
specter of closed
interruption of
Id.
___
____________________
13.
The
court
noted that
speed was
of
the essence
in a
purchase and
assumption transaction
because of the
need to
After
settled
considering the
impact
of the
federal rule
on
law, the
court concluded
that protection of
the FDIC
from
court
in
Id. at 872.
___
therefore
due course
announced a
rule applicable
federal
to
common
the FDIC
law
in its
corporate capacity:
[A]s a matter of federal common law, the FDIC has a
complete defense to state and common law fraud
claims on a note acquired by the FDIC in the
execution of a purchase and assumption transaction,
for value, in good faith, and without actual
knowledge of the fraud at the time the FDIC entered
into the purchase and assumption agreement.
Id. at 873.
___
law to bar
fraud claims by the note makers that would not otherwise have
been barred by the D'Oench doctrine or
_______
1823(e).
See id. at
___ ___
1823(e) embody
-47-
1987) (per
824, 828-29
(1st Cir.
due
doctrine's
course
corporate capacity).
Other
to
the
principles
in order
personal defenses.
FDIC
holder in
in
its
See Southern
___ ________
to
distinguish
bar all
looked to state
between real
and
901
161 (6th Cir.) (the FDIC "takes the note free of all defenses
that
would not
cert. denied,
____________
Boulder, 911
_______
prevail against a
holder in
due course."),
(en banc)
(adopting
credit
federal
rule
of
transferability
protecting
FDIC
in
its
purchase and
Ct.
1103
rationale
consistent
of letters
corporate
of
capacity during
(1991).
In all
of
these cases,
the underlying
in due course
that articulated
by
Gunter:
______
to
promote
160-61 (federal
"the
essence of
speed");
purchase and
Campbell Leasing,
_________________
901
assumption transaction
F.2d
at
1248-1249
at
is
(same
-48-
of time constraints of
holder in due
as the Bank's
in order for
and assumption or
course
it to decide
a liquidation
is the
on
defenses.
the
bank's
The FDIC
records,
unimpeded
by
personal
federal holder
transactions,
of
it
newly-developed
liquidation
Accordingly, the
holder
in due
and
FDIC urges
will
"hybrid"
to
employ
transactions
for the
purchase
that we
course doctrine
receivership capacity,
be unable
and
assumption.
hold that
applies to
the federal
the FDIC
regardless of whether
in its
a purchase and
support its
in
which the
allowed to invoke
to bar
argument,
FDIC in
the FDIC
relies on
its receivership
the makers of
several
capacity was
course doctrine
asserting their
personal defenses.
by the
FDIC
as receiver
transaction.14
For example,
after
_____
a purchase
assumption
in Campbell Leasing,
________________
of a failed
the FDIC
and
arranged
with a federally-
During the
previously been
failed bank.
the
note
the subject
maker's
of a
lawsuit by
As receiver
and
on
of the
the note
failed
summary judgment
counterclaim
for
maker's
____________________
14. The cases cited by
the FDIC either involved the
application of the federal holder in due course doctrine to
assets acquired by the FDIC as receiver following a purchase
and assumption transaction, or were not directly decided
under the holder in due course rule. See FDIC v. McCullough,
___ __________________
911 F.2d 593 (11th Cir. 1990), cert. denied, ___ U.S. ___,
____________
111 S. Ct. 2235 (1991); In re CTS Truss, Inc. v. FDIC, 868
_______________________________
F.2d 146 (5th Cir. 1989); Firstsouth, F.A. v. Aqua Constr.
__________________________________
Inc., 858 F.2d 441 (8th Cir. 1988). In McCullough, the court
____
__________
observed that both the FDIC and FSLIC as receiver are
"clothed under federal common law with the same defenses that
would be accorded a holder in due course under state law."
911 F.2d
at 603.
Yet
defenses.
Id.
___
The district
court
granted summary judgment for the FDIC and NCNB, and the Fifth
Circuit affirmed the judgment on
appeal.
acting in
its
FDIC argues
that
because the
in
its
Leasing,
_______
receivership
the
capacity in
protections of
cases
is to apply
like
Campbell
________
the doctrine to
the FDIC,
course
this extension
rule is
of the
necessary to
occurred.
According
federal holder
enable it
to
in due
decide properly
its
briefs in
neglected
to
addressed
this argument.
this appeal,
mention the
one
however, the
decision
that has
FDIC has
directly
(5th
Cir. 1991),
the FDIC
argued that
it was
entitled to
bar any
its capacity
as receiver.
been raised in a
Id. at
___
1233-35.
likewise reject
the
FDIC's attempt
to expand
the
of
promoting purchase
policy
considerations
adoption of a federal
when,
assumption transactions
that
originally
to enforce
an obligation in
does
further
the
None
prompted
not
and
of
the
are present
federal
policy
A
of
liquidation
"bringing
to
-52-
[nation's]
liquidity
banking
of bank
system
deposits."
with
resulting safety
Campbell, 901
________
F.2d at
of
and
1248
rule
little justification
that
would
at
872
(applying the
federal common
rely
to
for adoption of
displace
failed institution,
law.
settled
commercial
law rule).
a broad
Furthermore, the
for
F.2d
adoption of
FDIC does
not
liquidation as it must in a
estimate
of a
and
assumption
However
receivership
desirable
capacity to
affirmative defenses
already
it
may
be
be
able to
by the maker
eliminated by
for
the
FDIC
bar counterclaims
of a promissory
D'Oench and
_______
in
1823(e), such
its
or
note not
a broad
the
federal
applied by
holder
the courts.
in due
course
The district
doctrine
currently
court's well-reasoned
due course argument
holder in due
and
assumption
the
resolution
the unavailability of
course rule in
the absence
would
"immeasurably
of
receiverships"
-54-
of a
delay
and
and
create
"delays
FDIC's
and
difficulties [that]
ability to complete
same breath,
federal
however, the
greatly
impair the
In the
the existing
the receiver's
favor"
could
both ways.
The federal
fashioned
precisely
for
holder in due
the
purpose
It was
course doctrine
never intended
of
expediting
was
the
as
a panacea
intended to
defenses
assets.
decision
will
We
counterclaims during
decline to
the
liquidation of
argument that
impair
transactions
both a
and
its ability
i.e.,
to
conduct
transactions
liquidation and a
certain new
that involve
purchase and
"hybrid"
elements of
assumption
because
therefore
bar
the
hold that
the FDIC
was not
Trust's
claims
of
breach
entitled to
course doctrine
of
contract
and
____________________
16. Because the FDIC is not entitled to holder in due course
status under the federal common law rule, we need not decide
whether the Trust's soft costs claims would be barred by
Massachusetts holder in due course law.
-55-
FDIC
next
argues
that
to
allow
federal
common
law.
The
FDIC
equitable
would be contrary
asserts
that
the
frustrate federal
fulfilling its
from bankrupt
failed
banks.
subordination
policies intended
to assist
it in
of assets of
would be
inappropriate where
the
and not of
receiver.
Section
authorizes
equitable
510(c)
a
of
the
bankruptcy
Bankruptcy
court
subordination."17
The
to
Code
apply
specifically
"principles
judicially-developed case
Collier
on
Bankruptcy
of
510.01
(15th
See 3 L.
___
ed.
1992)
_______________________
____________________
17.
11 U.S.C.
510(c) provides:
Notwithstanding subsections (a) and (b) of this section,
after notice and a hearing, the court may
(1)
under
principles
of
equitable
subordination, subordinate for purposes of
distribution all or part of an allowed claim
to all or part of another allowed claim or all
or part of an allowed interest to all or part
of another allowed interest; or
(2) order that any lien securing such a
subordinated claim be transferred
to the
estate.
-56-
("Collier").
The
rearrange the
priorities
place all or
status.
doctrine
part of
The
permits a
of creditors'
bankruptcy court
interests,
generally-recognized
test
and
to
to
in an
inferior
for
equitable
Mobile Steel Co., 563 F.2d 692, 703 (5th Cir. 1977):
________________
(i) The claimant must have engaged in some type of
inequitable conduct.
(ii)
The misconduct must have resulted in injury
to the creditors of the bankrupt or conferred an
unfair advantage on the claimant.
In re
_____
Id.
___
(iii)
Equitable subordination
not be inconsistent with the
Bankruptcy Act.
test); 3 Collier at
of whether this
court,
Before reaching
we first
against a
510.05[2].
determine
the issue
the bankruptcy
whether equitable
subordination
as a matter
against the
FDIC.
the
issue
of
equitable
subordination
F.2d 357
Truss,
_____
claim
bankruptcy court
documents made by
on
the debtor.
-57-
certain
notes and
The debtor
In
CTS
___
a proof of
security
objected to
the
proof
of
claim, arguing
equitably
subordinated
creditors
because the
conduct against
as receiver.
that
to
the
the FDIC's
claims
failed bank
all
had engaged
Id. at 147.
___
of
claim
should be
the
other
in wrongful
Id.
___
The
Fifth
decision, but
Circuit
affirmed
the
on different grounds,
bankruptcy
holding that
court's
equitable
subordination against
the Bank's
to the FDIC,
we do not
by the [debtor]."
Id. at
___
Applying the Mobile Steel test, the court held that the
____________
subordination of a claim
Id. at 148-49.
___
failed bank,
bank's actions
focussing
fit "within
instead on
any of
whether the
the classic
failed
patterns of
-58-
D'Oench
_______
because it
availability to the
the
defenses to
doctrine
n.8.
bar
Id.
___
debtor would
at
149.
debtor's
"[e]ven
FDIC.
if
would
It
found
be shielded
that
from
1823(e)
therefore have
against the
that
the
and,
the FDIC
concluded
to
1823(e)
realized that
these claims
FDIC of
these claims.
that the
Id. at 148.18
___
Id.
___
been unable
at
principles
150.
of
to raise
The
court
equitable
to
constrained
transferee such
to hold
that
the
FDIC,
[ 1823(e)] forbids
we would
be
that result."
Id.
___
The Fifth
Circuit's decision
several principles
that are
in CTS Truss
_________
establishes
useful to consideration
of the
____________________
18. The court also noted that to the extent the debtor's
claims of fraud and breach
of an oral promise
were
"allegations [that] would justify disallowance or an offset
against the Bank's secured claim, they would prevent the
assertion of a claim of equitable subordination." Id. at 149
___
(citing Mobile Steel for the proposition that "claims should
____________
be subordinated only to the extent necessary to offset the
harm done by the inequitable conduct").
-59-
FDIC's
argument
in this
case.
for the
FDIC is
be asserted against
of
federal law.
preclude
the possibility
bank.
The
of equitable
Fifth
subordination of
Circuit
declined to
because it was
Instead,
the court
"classic
of
the
focussed
FDIC's
pattern[]"
adopt
on the
predecessor
necessary
issue
in
could
Id. at 147.
___
of whether
interest
for equitable
in Mobile Steel.
____________
the
"a transferee
innocent
conduct
of the
equitably subordinated
an
fit
the
the
subordination
Because it found
that the
pattern, the
issue of whether it
actions of the
bank to
directly reached
would be appropriate
the FDIC for
to impute the
purposes of
equitable
subordination.
In
this case,
the FDIC
asks that we
adopt a
rule of
equitable subordination of
the
receiver
secured claim
of
a federal
as a
result
of
-60-
demonstrates
As an
coverage
of
1823(e)
federal
logical
rule
extension
receivership
to
the
this
capacity.
as
barring equitable
of
FDIC
policy to
Otherwise,
receiver.19
the adoption
subordination
protect
the
FDIC
it
is
in
its
warns,
the
receiver's
materially
claims
against
bankrupt
borrowers
will
for Appellant
FDIC As
Bank and
____________________
19. FIRREA amended 1823(e) by extending its coverage to "any
asset . . . acquired by [the FDIC] . . . either as security
for a loan or by purchase or as receiver of any insured
________________________________
depository institution . . . ." (Emphasis added).
Before
______________________
FIRREA,
1823(e) applied only to the FDIC in its corporate
capacity, and it was only through decisions applying the
D'Oench doctrine that the FDIC as receiver was protected from
_______
unrecorded agreements. See Timberland, 932 F.2d at 49.
___ __________
-61-
The
problem
demonstrates,
with
this
is that the
those
cases in
argument,
adoption of a
the debtor's
claims
if
the
based on
debtor's request
claims not
against the
1823(e), or, if
CTS Truss
__________
which
as
purchase and
equitable
already barred
by
Only
subordination were
the FDIC's
federal
subordination
acquired
FDIC's
would
be necessary
by the
FDIC
to protect
in its
the value
receivership
of assets
capacity.
The
federal common
policy underlying
course doctrines"
is plainly
the well-established
hyperbole.
in due
rule precluding
its receivership
Claims or
assert
capacity under
against
meaningless
if
the
federal
the
equitable subordination
D'Oench and
_______
receiver
borrower
would
1823(e).
would
entered
be
bankruptcy
be unavailable
even
rendered
because
if
the
would
be
-62-
The
consistent
FDIC
with
maintains
the
that
policy
such
of
result
enhancing
the
federal
receiver's
ability to
cost to the
public.
recovery
on the
objective
resolve bank
Yet
assets
failures at
the lowest
if the maximization of
the FDIC's
of
failed
bank
or defenses against
was
is certainly
on
statutes or
true that
sole
the
while it
the FDIC
broad
Cf. FDIC v.
___ _______
Jenkins, 888 F.2d 1537, 1546 (11th Cir. 1989) ("Of course, it
_______
would
be
convenient
to the
FDIC
to
have
an arsenal
of
must grant
maximize
this does
equitable
subordination would
FDIC
the absence
as receiver to the
absence
of a
transactions.
Cf.
___
of
that courts
its effort to
recovery.").
a
federal rule
impair the
in due
Nor are
we
preventing
operation of
federal holder
to the FDIC in
fund
convinced
not require
the
course doctrine
would
Gunter,
______
674
-63-
F.2d
at
870
(principal
justification
absence
for
would
federal
"make
the
common
law rule
was
that
its
FDIC's
task
executing
its
of
FDIC's
recovery
justification for
alone
has
never
the adoption of
Maximization of
been
a rule of
an
adequate
federal common
law.
The FDIC also argues
and its
of the
innocent
subordination.20
the issue
would
to the
of a
is a
close one, we
result from
imputing
federal receiver
federal common
think that
bank
would be
any
officials'
outweighed by
would entirely
of equitable subordination.
The
FDIC would
____________________
20.
The
not necessarily
"innocent"
possibility
equitable
receiver.
a rule.
creditors
of recovery
from
subordination
The
FDIC
creditor affected by
Many of
would
the debtor/borrower's
be
the estate
was
barred
should
also
deprived
in bankruptcy
against
be
of
the
subjected
any
if
federal
to
the
constraints of equity.
CTS Truss
_________
federal
prevents
receiver
based
equitable subordination
on
claims
or
against
defenses
of
a
the
debtor/borrower
that are
barred
by the
FDIC's established
The
FDIC has
considerations, beyond
protection
bankruptcy.21
in
the
event
Accordingly, we
of
receiver even
the
borrower's
is no basis
____________________
21. The FDIC maintains that in this case the statutory
limitation on its liability as a receiver justifies the
denial of
equitable subordination.
See
12 U.S.C.
___
1821(i)(2). This fact-specific argument is not pertinent to
our consideration of whether it is necessary to adopt a rule
of federal common law barring equitable subordination against
the federal receiver.
We also note that we doubt that the
diminution of the secured claim of the federal receiver
resulting from equitable subordination would be a "liability"
against the FDIC within the meaning of this provision. Texas
_____
American Bancshares, Inc. v. Clarke, 954 F.2d 329 (5th Cir.
____________________________________
1992), a case involving the priority of payments by the FDIC
to creditors of
a failed bank after a
purchase and
assumption, is not material to the issue before us.
-65-
for totally
from
the remedy of
equitable subordination
permitted under
that
equitable
subordination
may
be
sought
imposed
by
CTS Truss.
__________
The
claim
of
equitable
law,
or
and, (2)
if the
defenses against
misconduct alleged
the
in these
receiver's predecessor
in
equitable subordination."
extraordinary remedy of
V.
THE BANKRUPTCY COURT'S
TRUST'S SOFT COSTS CLAIMS
JUDGMENT ON
THE MERITS
OF THE
in
due
course
doctrine
conversion and
breach of
misapplication
of
loan
did
not
bar
the Trust's
to
soft costs
from the
payments.
court's
favor
of the
Trust
to the
on the
-66-
breach
of contract,
conversion and
equitable subordination
affirmance of
the ruling of the bankruptcy court that the Bank breached the
loan agreements
that
exceeded
$111,711.66.
by removing
the
It
agreed-upon
contends
to
pay
authorized the
account
all
Bank
any monies
expenses
proceeds amounts
limits for
that
the
soft
provisions
costs
by
of
the
to withdraw
from
necessary to
repay
by
the
any of
Bank,
the
and
Trust's
those expenditures.
"the Borrower
on demand for
of every
____________________
22. The merits of the Trust's claims arising from the
kickback arrangement are not at issue because the district
court properly applied D'Oench to vacate that part of the
_______
bankruptcy's court's judgment and equitable subordination
award in favor of the Trust that was premised on the kickback
claims.
-67-
argues that
court
concluded
costs
provided
erroneously that
in the
addendum to
the
and bankruptcy
allocations of
the
L&SA in
soft
each loan
once
the original
estimates
were
in both loan
agreements
exceeded.
It
the
First Loan
Agreement
Second Loan
soft costs
payments
was
and
Agreement
expenses.
"approximately"
would be
$60,000
inadequate to pay
According to the
in
the
all the
FDIC, by withdrawing
expenses
by
limiting
itself
to
the
soft
costs
This
law, "[i]n
the
search for
plain meaning,
____________________
23. The FDIC also relies on several similar
the construction loan agreements.
provisions of
-68-
court
should consider
light
of]
instrument,
all
the
which
'every phrase
other
must
be
and clause
phraseology
considered as
. .
contained
a
. [in
in
the
workable
and
F.2d 361
N.E.2d
374, 378
(Mass.
1986)).
The
principles
of
language.
N.E.2d 566, 569 (Mass. App. Ct. 1973) ("'If the apparent
in
character and
one
that is
more
limited and
(1960)).
greater
Separately
weight than
negotiated
or added
standardized terms
547, at 176
terms are
or other
given
terms not
specifically negotiated.
and inconsistency
between a
is conflict
one that
are then
making, the
latter should
-69-
prevail over
that
the
conclude
that
that the
the
Bank
courts
below were
breached both
loan
correct
in
agreements
by
exceeded
provisions of
the
the
agreed-upon allocations.
standard
form
L&SA used
Although the
in
both
loan
of the
construction funding.
L&SA Addendum to
would
follows:
to
loan proceeds
were to
remaining $200,000 in
costs exceeded
Bank
The
$100,000
for
The
that $100,000
be applied
proceeds would be
Bank's withdrawals
used
of soft
allocation by $2,305.54.
The
"advance
the
loan
proceeds
approximately
the loan."
to soft
as
respect
merely
estimates.
The
loan
agreements
clearly
to be applied
of the construction
-70-
project
finding
bankruptcy
costs allocation
to be supplemented
in the First
that the
Loan Agreement
by payments from
the Trust's
funds.
The FDIC correctly points out that when the Trust failed
to
to recover these
expenses
chose
to
exercise
loan.
that
that
is,
the
by
loan
costs
otherwise
earmarked
for
construction
of loan
As
proceeds
the district
court
correctly noted,
while the
general
untrammelled right
willy-nilly."
judgment
We
to advance
therefore affirm
and apply
loan proceeds
the bankruptcy
court's
withdrawals made by
-71-
both loans
was also
$111,711.66 removed
from the
Conversion consists
of the
extra
soft costs.
of dominion or
control
of another.
See 14A D.
___
Law
___
In
1771 (1974).
show
order
that
at
to recover
plaintiffs
must
conversion
See also
___ ____
the
time
for conversion,
of
the
alleged
FDIC argues
that the
Bank's withdrawal
of excess
control
conditions of
inter alia,
_____ ____
right to possession or
to provide itemized
that required
requisitions of
proceeds.
conditions
acquired
Because
precedent,
a
right
to
of
the
its
failure to
FDIC
control
reasons,
or
these
the Trust
never
possession
-72-
satisfy
of any
loan
payments,
the Bank
could
not
have converted
those
funds.
The
problem
with
the
FDIC's
reasoning
is
that
it
the
Bank
construction.
chose
to
disburse
loan
proceeds
for
that portions of
The bankruptcy
then
the Second
that
See
___
the
Loan Agreement,
conditions
the bankruptcy
precedent
for
As
court found
construction
fund
Id. at
___
367.
monies
to
The record
the
Trust's
loan
account
after
the
completion
of
to the
the FDIC's
argument
that the
Trust had
no
right
to
possess and
agreements once
control
the
proceeds of
both
loan
-73-
for construction
Trust interest,
and at
costs, begin to
charge the
time withdraw
portions of
the same
Both courts
below
costs
beyond
the
agreed-upon
limits
of
both
loan
Equitable Subordination
_______________________
Because
we
have
determined
against
the FDIC
second
element
of the
misconduct
of
the
Bank
that
the district
law,
we focus
analysis:
"within
any
court
were not
on the
whether
the
of
the classic
fashion the
CTS Truss,
_________
the Mobile
______
support an award
misconduct resulted
____________________
24. We disregard the FDIC's
arguments that it is an
"innocent" receiver, having rejected this line of reasoning
in Part IV, supra.
_____
-74-
in injury to the
F.2d
Mobile Steel,
____________
at 938-39;
563 F.2d
See
___
at
Giorgio, 862
_______
692.
It also
applied
relatively
infrequently,
towards
misconduct
arising in
fiduciary
of
the
debtor
it
is
three
misuses
usually
situations:
his
position
directed
when
to
a
the
(citing 3 Collier at
other creditors.
510.05).
Id. at 148-49
___
Bus.
Law.
417, 430-45
(1985)
briefly the
-75-
in
original).
Whether the creditor is
debtor is
that
fundamentally important
courts apply
creditor.
(5th
to
creditor's
that
and
courts.
allegations of
See also
___ ____
the creditor
has
Claims
an insider
are
if the claimant
egregious
overreaching
is not
misconduct
of scrutiny
is
necessary."
1458, 1465
Abram at
424 ("The
power and
control
over the
scrutinized by
at 1465.
On the other
an insider, "then
such
of the
misconduct against
DeNatale &
debtor's affairs.").
debtor
to the level
Cir. 1991).
degree
an insider or fiduciary
as
fraud,
Id.
hand,
evidence of
spoliation
(citing
In
the
re
more
or
N&D
___
Properties, Inc., 799 F.2d
________________
In re Friedman,
______________
____________
126 B.R.
See also
___ ____
9th Cir.
1991)
(same principle).
Rather than decide the question of whether
a
fiduciary or
based its
decision to
finding that
severely
insider of
bankruptcy court
unfair to
other creditors"
on its
meaning of
-76-
Giorgio.
_______
Bankruptcy
bankruptcy
Court Opinion,
119 B.R. at
grounded on the
of the
377.
The
Bank was
breach of contract
and illegality,"
"together constitute
premised on the
which
the
bankruptcy court
found
general categories of
misconduct
recognized by the
subordination."
The
against
Id.
___
district court
upheld the
equitable subordination
the kickback
barred by
from the
claims, which
D'Oench.
_______
court otherwise
equitable
Accordingly, the
determined were
damages attributable
court's
it properly
to the
affirmed
determination that
subordination
the $26,300 in
kickback scheme.
in
its
entirety
the Bank's
with
based
respect
The district
the
bankruptcy
misconduct justified
to
the
soft
costs
claims.
The FDIC
to
the
breach
insufficient
argument
to
of
contract
support
and
equitable
misconduct in relation
conversion
claims
subordination.
was
This
-77-
district
court
subordination
Bank:
when
it
reviewed
the
Trust's
equitable
claims,
and
validity
in particular
of the
its
bankruptcy
fraud
court's
claim, affected
original
judgment
the
of
equitable subordination.
The bankruptcy court specifically premised the equitable
subordination on
Trust
insider
in this
or fiduciary of the
asserted
affairs.25
that
the
Bank
Accordingly,
case that
Trust.
Nor
dominated
the
issue
the Bank
was an
is
controlled
whether
its
equitable
to
support
equitable
insider.
subordination
Fraud or
against
misrepresentation
____________________
25. We add that such
would not have been
standard necessary to
Trust's affairs by the
__
D. Vt.
(2d
-78-
are
the
most
frequent
subordination of
justifications
the non-insider.26
They
for
equitable
required:
Something less than actual fraud . . . will
suffice.
The fixing of the lower limit is the
elusive boundary which cannot be clearly defined.
Although the courts have used general terms such as
injustice or unfairness to fix this lower limit,
the minimum level of offending conduct appears to
be conduct that shocks the conscience of the court.
. . .
DeNatale &
Abram at 423-24.
Types
of misconduct sufficient
instances
moral
of
turpitude
misrepresentation
where
their
damage
overreaching .
"[v]ery
. . ."
or
other
or
substantial
some
creditors
gross
non-insiders have
misconduct
breach
were
misconduct
or
some
deceived to
amounting
to
D.
____________________
26.
the equitable
subordination of
bank's priority
claim
to
borrower's estate.
Id.
___
at
1356-1359.
The
basis
of,
inter
_____
borrower/debtor
credit.28
borrower's
by the
Finding
fiduciary of
alia,
____
that
contract, the
of
hardship
bank's suspension
the bank
the borrower,
line
the
credit
was
of a new
not an
bankruptcy court.
Id. at 1356-58.
___
caused
to
line of
insider
suspension of
under
the
the
or
the
loan
reasoning of the
be
based on
bank's failure
to provide it
of
contract arising
telephonic as well
"[e]quitable subordination . .
. is not a device
the
inconsequential
damages
contract."
available
for
from the
as written
noting that
to magnify
breaches
of
Id. at 1359.
___
Applying the
equitable
subordination to the
facts of this
egregious
actions could
misconduct
amounting to
650.
Unlike
to justify
The Bank's
case, we find
equitable subordination.
fairly be characterized
overreaching."
as "gross
Mayo, 112
____
B.R. at
-81-
excess
of
substantial
fact
that
the
breach of
the
Bank
the loan
soft
costs
agreements.
advanced and
withdrew
over $100,000
limits
Moreover, the
loan
was
proceeds
run on
to the level of
bankruptcy court
conversion of
benefit funds
construction creditors.
at 377.
While
agreements
Trust,
the Bank
without regard
for unpaid
this
was entitled to
to
agreements did
In
Bankruptcy
case, the
construction creditors
flowed from
the
those loan
to seek reimbursement
hardship imposed
loan
imposed on
at 1357,
soft costs
enforce the
the hardship
908 F.2d
B.R.
construction funds.
on
the Trust
and its
and
have been
subordination
misconduct
in
considered an
inquiry.
relation
sufficient evidence
We
to
element of
conclude
the
soft
of misconduct on which
that
costs
the equitable
the
Bank's
claims
was
to predicate the
-82-
not appropriate
prong of
Mobile
______
_____
to the Trust's other creditors.
on
the
bankruptcy
misappropriation of
principal
project
that
court's
determination
loan proceeds by
cause of the
bankruptcy
the loan.
would
have
misapplication of
loan proceeds
any
Trust's
harm
to the
the Bank
that
the
was not
the
the
resulted
even
other
creditors
if
the
and that
thus cannot
be
FDIC's argument
equitable
subordination
misconduct
at
bankruptcy.
law.
issue
is
This argument
boils down
is
a
to the
inappropriate
major
cause
is without
of
assertion that
unless
the
the
debtor's
support in the
case
equitable
results
subordination is
appropriate when
the misconduct
-83-
creditors
consequently,
by
its
depleting
ultimately had
Trust's
bankruptcy estate,
and
assets
and,
by substantially
effort, on which
for compensation.
The bankruptcy
many creditors
Bankruptcy Court
success
of
the
Trust's
renovation
efforts,
was
subordination
of the
Bank.
Cf.
___
In re
______
result in harm
to the entire
creditor
& Abram).
There is no merit to the FDIC's argument that the Bank's
conduct did
money present in
the
Bank's
overages
of soft
the bankruptcy
costs
payments
merely
-84-
reduced
Trust's principal
could be no harm
secured creditor.
FDIC) as the
It reasons
that there
because the
argument ignores
subordination
recovery
by
because of
the very
remedy, whose
other
precise
creditors
misconduct of
nature of
with
the equitable
purpose
lower
is to
permit
priority
claims
a particular creditor
whose claim
also
subordination
reject
the
FDIC's
of its secured
assertion
that equitable
the Trust a
unsecured
will
creditors
who
benefit
from
the
partial
that damages
equally spurious.
far
exceeds
properties.
the
are
an adequate
of
the
would
attributable
law is
estate
subordination of an
remedy at
claim
or
its
The FDIC's
recoup
to
the value of
equivalent
from
the
the
Trust's
Bank's
estate
misconduct.
any
damages
Equitable
-85-
by the
we affirm
the equitable
subordination of
amount
equivalent to
the
damages
attributable to
the
VI.
INTEREST
The FDIC next attacks the
soft
costs overages
secured
claim
contends
that
subject
the
bankruptcy's court
contract
rate
as
inclusion of interest on
part of
to
total amount
equitable
district
award of
from
the
the
of
the
its
subordination.
court's
of
the
the
dates
affirmance
It
on
which
they
were
interest to
post-judgment
asserts
interest
claimed
of the federal
by
the FDIC.
reply brief.
There
law bar to
The
Trust
The district
is also
-86-
this contention
nothing in
the record
before us that
indicates that
the issue
was raised
below.
231
of the
General
Laws
of Massachusetts,
which
6C.
The
judgment
on a
contract
judgment debtor
a
ch. 231,
in this case
different rate.
Agreements
interest
The
imposed
to
unless the
the
contract obligated
the Bank
to pay interest at
no obligation
Trust,
on
the
the Bank
Massachusetts'
to
default
pay any
judgment
our
Court has
interest
knowledge, the
never
in
Massachusetts
addressed the
a promissory
issue
note
should
Supreme Judicial
of whether
be treated
rates
of
as
the
(declining to
bankruptcy court's
address
issue).
interpretation
of
N.E.2d at
After
section
review of
6C,
we
1240
the
are
-87-
371 n.17.
Application
in order to
damages to
the Trust
withdrawal of soft
costs.
We affirm
Bank's excess
the district
court's
ATTORNEY'S FEES
The
district
damages
court
incurred
determination
attorney's fees
equitable
secured claim in an
affirmed
by
the
Trust
subordination
amount equivalent to
from
the soft
costs
Massachusetts
law
permitted
-88-
on the grounds
identified by the
bankruptcy court, it
still
expense,
be
see 11
___
allowed,
U.S.C.
of
course,
as
an administrative
503(b)(3), accorded
the priority
challenges the
district court's
court's inclusion
subordination.
The
reversal of
of attorney's fees
Trust
does
not,
in the
however,
conversion law.
or
Trust's attorneys
administrative
within
the
argue
that attorney's
expense claim
meaning
503(b)(2).29
of
The Trust's
against the
11
fees are a
bankruptcy estate
U.S.C.
attorneys
valid
330(a)(1)
contend
and
that because
____________________
29.
Section 503(b) of the Bankruptcy Code governs the
allowance
of
administrative
expenses.
Among
the
administrative expenses permitted,
after notice and
a
hearing, are claims for "compensation and reimbursement
awarded under section 330(a) of this title."
11 U.S.C.
503(b)(2). Section 330(a) provides in pertinent part:
(a) After notice to any parties in interest and to
the United States trustee and a hearing . . . the
court may award to a trustee, to an examiner, to a
professional person employed under section 327 or
1103 of this title, or to the debtor's attorney
(1)
reasonable
compensation for
actual,
necessary services rendered by such trustee,
examiner, professional person, or attorney,
. . . based on the nature, the extent, and the
value of such services, the time spent on such
services, and the cost of comparable services
other than in a case under this title . . . .
-89-
their
fees
are
in
provisions,
the
bankruptcy
attorney's fees
fact
valid
court's
in the equitable
"claim"
under
decision
to
these
include
subordination against
the
"under
principles
subordinate for
allowed
See 11 U.S.C.
___
of
equitable
purposes of distribution
subordination,
all or part
of an
.").
This argument
both
dicta,
_____
the bankruptcy
district courts
Although
acknowledged,
be an allowable administrative
Bankruptcy
in
them
not, as
attorney's
See Reply
___
Brief for
In
as
bankruptcy court
an administrative
Appellant 604
to
expense
Columbus Avenue
See
___
11 U.S.C.
330(a)
and 503(b).
____________________
11 U.S.C.
330(a).
Administrative expenses allowable under
503(b), which include expenses under
330(a), are given
first priority of payment under the Bankruptcy Code. See 11
___
U.S.C.
507(a)(1).
-90-
the Bank's
secured claim to an
allowed by
the
district
bankruptcy court
equitable subordination
the
court's
of the Bank.
reversal of
inclusion of attorney's
at
the time
of
its
bankruptcy
court's
subordination
attorney's
fees
as
an
element
of
the
conversion
damages.30
CONCLUSION
CONCLUSION
To summarize, we find that:
(1)
the FDIC
defenses under
breach of contract
arising from
(3)
the federal
apply to
the FDIC in
absence of a
did not
purchase and
in the
assumption transaction,
and
____________________
30. We express no opinion on the merits of the Trust's claim
that its attorney's fees are administrative expenses within
the meaning of sections 330(a)(1) and 503(b)(2).
-91-
federal common
subordination
against
law
the
did
FDIC
not preclude
in
its
equitable
receivership
capacity;
(5)
for
in an amount
equivalent to the
was
proper;
(7)
the
as part of
the
overall
equitable
amount
of
subordination
the FDIC's
claim
an
of
award
subject
to
post-judgment
damages, and
could not
not an element of
properly have been
-92-
conversion
included in