decided: July 17, 1980.
FEDERAL DEPOSIT INSURANCE CORPORATION, PLAINTIFF-APPELLEE,
HENRY S. LAUTERBACH, JOHN DEBELAK AND NICHOLAS LESSELYOUNG, DEFENDANTS-APPELLANTS
Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 76 C 341, 76 C 342 and 76 C 340 -- Robert W. Warren, Judge.
Before Pell and Sprecher, Circuit Judges, and Markey, Chief Judge.*fn*
This is an appeal from the district court's granting of summary judgment in favor of plaintiff, Federal Deposit Insurance Corporation (FDIC).*fn1 The defendants contend that the district court erred in its interpretation of the relevant statute, 12 U.S.C. § 1823(e), and that genuine issues of material fact precluded summary judgment. We find defendants' arguments without merit and affirm the judgment below.
In these actions, the FDIC seeks payment of principal and accrued interest on three promissory notes.*fn2 Each of the notes is payable to the American City Bank & Trust Company (American) and all were due on April 28, 1976. Each defendant admits executing a note and admits that no payments of principal or interest have been made.*fn3
By order of the Comptroller of the Currency, American was declared insolvent on October 21, 1975, and the FDIC was appointed its receiver. The FDIC, as receiver, entered into a purchase and assumption agreement with the Marine National Exchange Bank of Milwaukee. In order to facilitate this agreement, the FDIC, in its corporate capacity, purchased from the FDIC, in its capacity as receiver, certain assets of American, including the three notes at issue here.*fn4 The purchase and assumption agreement was approved by the district court in an ex parte proceeding. See In re Liquidation of American City Bank & Trust Co., N.A., 402 F. Supp. 1229 (E.D.Wis.1975).
In the district court, the defendants raised essentially three defenses to the FDIC's claims. First, each defendant denied receiving value for his note. Second, each defendant challenged the validity of the purchase and assumption transaction and the effectiveness of the transfer of the notes to the FDIC.*fn5 Finally, each defendant asserted that execution of his note was induced by fraud committed by American and the FDIC in connection with a 1974 stock purchase. Each defendant had purchased stock of American Bankshares Corporation (Bankshares), the parent of American, in 1974; the purchases were financed through loans from an affiliated bank subsequently repaid with the proceeds of the notes at issue here. The defendants asserted that they were fraudulently induced to purchase this stock by misrepresentations on the part of American's officers. The FDIC allegedly aided this fraud by failing to advise the defendants that the assurances given them by the officers were misrepresentations.
The FDIC moved for summary judgment in each of the three suits. The defendants opposed the motions and filed identical affidavits alleging additional instances of fraud on the part of the Bank's officers. The district court granted summary judgment in favor of the FDIC in all three suits, finding that none of the defenses raised by the defendants presented a genuine issue of material fact. With respect to the fraud defense, which is our primary concern on this appeal, the district court found for the FDIC on two alternate theories. First, the court held that 12 U.S.C. § 1823(e) clothed the FDIC, in this situation, with the same protection from the defense of fraud in the inducement accorded a holder in due course of a negotiable instrument.*fn6 See Wis.Stat. § 403.305. In the alternative, the district found that even if the fraud defense could be asserted against the FDIC, the pleadings, affidavits, depositions and other materials in the record did not reveal a genuine issue of material fact with respect to that defense. The district court also ruled that no genuine issue of material fact existed with respect to whether defendants had received value for their notes and found no defect in the purchase and assumption transaction or the transfer of the notes to the FDIC.
On this appeal, the issues have been narrowed somewhat. In the district court, the defendants raised the alleged defects in the purchase and assumption transaction and the transfer of the notes to the FDIC as a separate defense, independent of the fraud allegations. On appeal, however, the defendants raise this defense only in connection with their argument that the defense of fraud in the inducement maybe asserted against the FDIC. See Brief of Defendants-Appellants at 15-21, 37-38. Because we find that defendants' allegations of fraud present no genuine issues of material fact, we need not decide whether the FDIC is protected from this defense. We therefore will not address the challenges to the purchase and assumption transaction or the transfer of the notes. The issues are further narrowed because the defendants do not contend on appeal that the FDIC was involved in the alleged fraud. Finally, although they continue to assert that they received no value for their notes, it is apparent that they consider this defense substantially equivalent to the fraud defense. See Brief of Defendants-Appellants at 35-37.
A description of the circumstances underlying the stock purchases and loan transactions at issue here is necessarily complicated but nonetheless essential to an understanding of the defendants' allegations of fraud. These underlying facts are essentially undisputed and are set out below substantially as recited by the district court.
American City Bank & Trust was a national banking association in Milwaukee, Wisconsin. One hundred percent of the capital stock of American was owned by American Bankshares, a holding company for American and several other banks. The defendants were all nonemployee directors of American and two, Henry Lauterbach and Nicholas Lesselyoung, were also directors of Bankshares.*fn7 The defendants had served as directors of American for varying terms: Mr. DeBelak served from approximately 1965 to 1975, Mr. Lauterbach served from approximately 1970 through 1974, and Mr. Lesselyoung served from 1972 through 1975. The depositions reveal that, in addition to their service on American's board, the defendants all possess a wide variety of business and financial experience.
During 1974, the defendants, as directors of American, received a large volume of information concerning the poor and continually deteriorating financial condition of the Bank.*fn8 At a regular directors meeting on April 17, 1974, the directors were informed that the Regional Administrator of National Banks had classified over $5.9 million of American's loans as loss, doubtful, substandard or special mention. The Bank's classified loan to capital ratio of 40% was considered on the high end of acceptable. In addition, American's outside auditors had informed American that 1973 earnings must be adjusted downward by $600,000 in order to increase the loan loss reserve. The auditors also recommended creation of an additional reserve of $1 to $3 million in connection with a particular group of loans, the Bradley loans.
The Bradley loans were a topic of discussion at a May 4, 1974, joint meeting of the Bankshares and American boards. The directors were advised that the outside auditors had required creation of a $3 million reserve for possible losses on these loans. The auditors had contacted the Comptroller to suggest further review and consideration of the recent report of examination of American. A reexamination was in progress with respect to Bankshares operations in general and the Bradley loans in particular; the examiners had already required an immediate charge off of $929,426 on those loans. In addition, the Regional Administrator had advised the Bank that $3 million in additional capital would be required. American's board authorized acquisition of the additional capital within seven business days and directed the officers to take action to reduce loans and borrowings. This action was confirmed by a letter to the Regional Administrator acknowledging American's liquidity, loan and capitalization problems.
The two boards again met jointly on May 10, 1974. According to the minutes, a comprehensive history of the events of the preceding three years which had led to the present situation was delivered. The plan for acquisition of additional capital was discussed in detail. It was expected that Bankshares stock would be sold at $20 per share, with the proceeds used to purchase stock in American. Funding for this transaction had been arranged with another bank. At the regular board meeting on May 15, 1974, American's directors were informed that the proceeds of the sale of Bankshares stock would not immediately be infused into American but would be retained by Bankshares until its outstanding commercial paper had been reduced.
At its regular monthly meeting on June 19, 1974, American's board was informed that a letter had been received from the Regional Administrator regarding the Bank's loan and borrowing reduction program. The minutes of a joint meeting of the Executive Committee of Bankshares and the Policy Committee of American, appended to the minutes of the directors meeting, indicate that the letter concerned American's failure to reduce borrowings as earlier agreed. The letter informed American that new loans should be limited and that a program for month-by-month reduction in loans and borrowings should be submitted.
American's board was informed on August 21, 1974, that the Regional Administrator and Deputy Comptroller had directed that another $2 million in new capital, in addition to the initial $3 million, be infused into the Bank. The directors were provided with copies of a letter sent by counsel for American to the Comptroller acknowledging the serious financial problems confronting the Bank with respect to capital, loans, borrowings and deposits, and agreeing to follow the Comptroller's recommendations. One week later, on August 28, 1974, the directors convened again, this time at a special meeting called at the request of the Regional Administrator. The directors were informed by the Regional Administrator's representative that American's activities were being closely examined by the Regional Administrator and the Comptroller and that three basic problems had been identified: liquidity, asset quality and condition, and capital adequacy. The board was told that the Bank needed $5 million in new capital the original $3 million still retained by Bankshares and the $2 million mentioned on August 21. It was emphasized that policy matters were the responsibility of the board and not that of the Comptroller.
Representatives of federal regulatory agencies were again present at the board's September 11, 1974 meeting. The Regional Administrator and National Bank Examiner informed the directors that the classified loan to capital ratio, which at 40% had been at the high end of acceptable, had reached 126%, and that 14.2% of American's loans were past due. The directors were also informed that five loans were overlines, loans in excess of American's legal lending limit, and that bank directors are personally liable for the entire amount of such overline loans. The importance of new capital was once more emphasized.
The minutes of the October 14, 1974, joint meeting of Bankshares' Executive Committee and American's Policy Committee were attached to the minutes of the directors' regular meeting on October 16, 1974. The committees had discussed the overline loan situation and American's need for new capital. The Bank's poor operating results were noted and were attributed primarily to losses on securities transactions and to a large number of loans which were not accruing interest. Bankshares' board had been notified that the net loss for the first nine months of 1974 was estimated to be $800,000. The directors were informed, however, that in the view of Bankshares' counsel this estimate should not be released. It was feared that the estimate could prove to be misleading because year-end adjustments could result in a much larger actual loss.
At a special meeting on November 6, 1974, the board discussed an October 29 letter from the Regional Administrator, a copy of which was sent to every director, outlining in detail the deteriorating condition of the Bank. The classified loan to capital ratio had risen to 168%, a figure characterized as "extremely disproportionate." Over 14% of American's loan portfolio was delinquent. The Regional Administrator's examination had uncovered very serious violations of law involving the Bradley overline loans and had revealed that the Bank's bond account was carried at a book value $4.7 million in excess of its market value. In the Regional Administrator's view, the Bank was in an unsafe liquidity condition and was suffering from a very rapid and extremely serious deterioration in its assets and operations due to illegal acts and gross mismanagement. American was in an unsound and extremely extended condition, suffering from a volatile deposit structure and a loan portfolio in very poor condition. American had repeatedly failed to reduce loans and borrowings as promised and still had not received the $3 million in new capital raised in the May 1974 stock sale. The Regional Administrator directed infusion of this amount into the Bank, acquisition of an additional $2 million, and restoration from the directors' personal assets of $1,350,000 written off on the Bradley overline loans. The directors were reminded of their potential personal liability on overline loans.
The directors continued to receive such bleak financial information during the remainder of 1974. At the November 20, 1974, regular board meeting, the directors were informed that.$3.6 million had been set aside as an additional loan loss reserve and that American's new outside auditors recommended adjustment of 1972 and 1973 financial figures to reflect values and transactions in trading account securities. On December 18, 1974, the directors met again and were reminded of the urgent need for new capital. The Regional Administrator required that the new capital be on American's books by the end of 1974 and that no new loans be made until the new capital had been received. The directors were informed that they were expected to contribute some of the required capital through stock purchases. Also at this meeting, the resignation of Mr. Lauterbach was announced.*fn9
The defendants purchased Bankshares stock on December 31, 1974, at a price of $5.50 per share.*fn10 Each defendant financed the purchase in total through a loan from American Hampton Bank, a Bankshares subsidiary. On April 29, 1975, the notes at issue in this case were executed, with the proceeds being used to pay off the principal and accrued interest on the Hampton loans. Defendants now seek to avoid payment of these notes by charging, among other things, that they were fraudulently induced to enter into the December 1974 stock purchase by misrepresentations on the part of American's officers.
Under Wisconsin law, three elements must be established by a party alleging fraudulent misrepresentation:
First, there must be a false representation; second, it must be made with intent to defraud and for the purpose of inducing another to act upon it; and third, such other person must rely on it and be induced to act, to his injury or damage.
Goerke v. Vojvodich, 67 Wis.2d 102, 226 N.W.2d 211, 214 (1975). See also McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787, 791 (1966). In general, the false representation must relate to present or pre-existing events or facts and may not be merely a prediction of future events or an unfulfilled promise. See Hartwig v. Bitter, 29 Wis.2d 653, 139 N.W.2d 644, 646 (1966). A promise may be actionable where the promisor has a present intent not to perform and a prediction may constitute fraud where the predictor is aware of present facts incompatible with the prediction or opinion. Id. at 647.
The party alleging fraud must have relied upon the false representation to his detriment and his reliance must have been justifiable. See Kiefer v. Fred Howe Motors, Inc., 39 Wis.2d 20, 158 N.W.2d 288, 292 (1968). Reliance on obviously false statements is not justifiable, neither is reliance upon statements the falsity of which could have been discovered through the exercise of ordinary care. See Williams v. Rank & Son Buick, Inc., 44 Wis.2d 239, 170 N.W.2d 807, 810-11 (1969). Where a party possesses information which indicates or suggests that a representation made to him is false, there is a duty to take affirmative steps to investigate that representation. See Kiefer, supra, 158 N.W.2d at 293; Koehler v. Haechler, 27 Wis.2d 275, 133 N.W.2d 730, 731-32 (1965); W. Prosser, Handbook of the Law of Torts § 108, at 715-18 (4th ed. 1971). A party presented with an opportunity to learn the truth may not ignore that opportunity and blindly rely upon another's representations where ordinary care would have revealed the truth. See Williams, supra, 170 N.W.2d at 811.
Whether the exercise of ordinary care would have revealed the truth "is to be determined in light of the intelligence and experience of the misled individual." Id. at 810-11. The defendants' status as directors of American is thus of substantial importance in this case. A corporate director may not claim total ignorance of the corporation's affairs, particularly those matters fairly disclosed by the directors' meetings and those corporate records to which directors had access. See Myzel v. Fields, 386 F.2d 718, 736 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S. Ct. 1043, 19 L. Ed. 2d 1143 (1968); Goess v. Ehret, 85 F.2d 109, 110 (2d Cir. 1936). See also Koehler, supra, 133 N.W.2d at 731-32. This is not to say that a director may not plead and prove fraud against his own corporation and its officers, but rather that a director's access to corporate information and his duty to maintain some minimal degree of familiarity with corporate affairs are factors which must be considered in determining whether reliance on a representation was justifiable.*fn11
As defendants properly note, resolution by summary judgment of the issues raised by an allegation of fraud is often difficult or impossible. There is not, however, as defendants seem to suggest, a firm rule precluding use of the summary judgment procedure in cases involving questions of fraud.*fn12 As Professor Moore states:
(I)n whatever guise the issue of fraud may appear in an action, the general basic principles underlying summary judgment apply and, if these are met, the issue of fraud may be summarily adjudicated.
6 Moore's Federal Practice P 56.17(27), at p. 56-866 (footnote omitted). In our recent decision in First National Bank Co. v. Insurance Company of North America, 606 F.2d 760 (7th Cir. 1979), we approved a district court's granting of partial summary judgment resolving issues of fraud. We noted that although a district court is not to try issues of fact in a summary judgment proceeding, it has the power to penetrate the pleadings and look at any evidentiary source to determine whether summary adjudication is appropriate. Id. at 767. A genuine issue of fact is raised where the facts alleged would constitute a legal defense if proven. Id. at 766. Once a showing has been made by the movant, the burden rests upon the opposing party to show that "he has a ground of defense fairly arguable, and of a substantial character." Id. at 767. In this case, the FDIC made the initial showing by presentation of the notes, the execution and nonpayment of which were admitted; the burden then shifted to defendants to allege facts which, if proven, would establish as of a substantial character their defenses of fraud and lack of consideration. We turn to defendants' allegations of fraud to determine whether they raised genuine issues of material fact precluding summary judgment.
Defendants' fraud allegations fall into two categories: those presented in defendants' answers in the court below and those first mentioned in the affidavits filed by defendants in response to the FDIC's motions for summary judgment. We will consider each category in turn.
In their answers, defendants alleged four instances of misrepresentation by American's officers. The district court carefully and extensively analyzed each of the pleaded allegations and found that none presented a genuine issue of material fact precluding summary judgment. 476 F. Supp. at 947-48.*fn13 In their initial brief in this court, the defendants did not discuss those allegations at all, focusing instead upon the allegations presented in their affidavits. A fair reading of their brief reveals no argument that the district court erred in its decision with respect to the pleaded allegations. In their reply brief, the defendants, in response to the FDIC's observation that the pleaded allegations had apparently been abandoned, asserted that this was not the case. See Reply Brief at 6-7. Despite this assertion, defendants did not explain to this court in what way the district court erred in its treatment of these allegations. They claim, in general terms, that the pleaded allegations presented genuine issues of fact requiring a trial, but avoid any detailed consideration of the district court's ruling.
We have, nonetheless, given extensive consideration to the pleaded allegations and find the district court's conclusion correct. Examination of the record in this case indicates that these allegations raised no genuine issues of material fact; they would not constitute a legal defense if proven and did not reveal "a ground of defense fairly arguable, and of a substantial character." First National, supra, 606 F.2d at 767. We therefore affirm the district court's decision with respect to defendants' pleaded allegations of fraud.
Three instances of fraudulent conduct were alleged in the affidavits filed by the defendants in response to the FDIC's motions for summary judgment:
Certain officers of American City Bank & Trust Company and American Bankshares Corporation . . . had, during the years 1972 and 1973, engaged in illegal and fraudulent conduct with respect to the bond portfolio of American City Bank & Trust Company, by engaging in transactions known as "overtrades", which had the effect of failing to reflect on the books and records of account of the Bank and of American Bankshares Corporation losses on bond transactions, which had the effect of concealing the true financial condition and income statements of these corporations.
Sometime during the year 1974 Raymond L. Callen, President of American City Bank & Trust Company, misappropriated Bank funds by creating a compensating balance in the amount of approximately $1,500,000 at Colonial Bank & Trust Company, Chicago, Illinois. . . .
(O)n December 31, 1974, the net loss of American City Bank & Trust Company for the nine month period ending September 30, 1974, as had been represented to (defendants), was approximately $800,000, whereas in truth and in fact such loss for the nine month period ending September 30, 1974, was in excess of $4,000,000 . . . .
Lesselyoung Affidavit, PP 3-5, Appendix at 126-28.*fn14 The district court found no factual support in the record for these claims and ruled that they raised no genuine issues of material fact. 476 F. Supp. at 948-49. For the reasons stated below, we agree with this conclusion.
Defendants' first allegation points to alleged overtrading by American's chairman and vice-president, causing inaccuracies in American's books.*fn15 The record reveals that the Bank's directors were informed of inaccuracies in the Bank's valuation of its bonds and of the overtrade transactions. The October 29, 1974, letter from the Regional Administrator to the board, copies of which were sent to all directors, stated that American's bond account was carried at a book value $4,719,143 in excess of market value and indicated that this inaccuracy was due, at least in part, to "illegal acts and gross mismanagement. . . ." Kissel Affidavit, Exhibit G, at 08139.*fn16 The minutes of the November 20, 1974, board meeting indicate that the directors were informed that American's new outside auditors recommended adjustment of 1972 and 1973 annual report figures to reflect values and transactions in trading account securities. Id. at 08146.*fn17 This matter was also discussed at the board's December 18, 1974 meeting. Id. at 08165. Finally, each defendant, at the time of the December 1974 stock purchase, received a copy of a December 11, 1974, letter from the outside auditors to the Bank which described the overtrade transactions and explained the inaccuracies in the Bank's records caused by them.*fn18 Supplemental Appendix at 242-44. Thus, prior to the stock purchases, the defendants had received information revealing inaccuracies in American's books and, at the time of the transaction, they were informed of inaccuracies and of the transactions which caused them. No claim of fraud may be maintained where the defendants were in possession of information revealing the inaccuracies which allegedly misled them.
The second allegation of fraud pertains to misappropriation of funds by American's president through creation of a $1.5 million compensating balance at Colonial Bank & Trust Company. Although the minutes of the directors' meetings do not reveal specific discussion of the compensating balance, they do reveal discussion of Colonial's role in financing the May 1974 sale of Bankshares stock. Minutes at 07952-53, 07959. They further reveal that Colonial extracted a number of concessions from American in exchange for its financing the May 1974 transaction.*fn19 It is also clear from the minutes that the directors were informed that American had some form of deposit with Colonial. Id. at 07992. The directors, therefore, while perhaps not specifically informed of the details of the compensating balance, were nonetheless aware of an ongoing relationship between American and Colonial. More important, even accepting defendants' argument that the information in their possession was insufficient to create a duty to investigate, the affidavits still do not allege an actionable misrepresentation. Although the affidavits assert that defendants would not have purchased the stock had they known of the compensating balance, it is nowhere explained how this conduct caused any inaccuracies in the books of the Bank on which they relied to their detriment. While the district court, in a summary judgment proceeding, is required to draw all permissible inferences in favor of the party opposing summary judgment, it is not required to speculate, in the absence of any evidentiary support, as to the possible factual connection between an alleged instance of fraudulent conduct and the transaction said to have been induced by it. The district court properly disposed of this allegation.
Defendants' final allegation is that the board was informed that American's estimated net loss for the first nine months of 1974 was $800,000, when in fact the actual loss for this period was in excess of $4 million. The $800,000 estimate was presented to the directors at an October 16, 1974 board meeting. As discussed in Part I, B, supra, the directors were advised at that time that $800,000 was merely an estimate and were counseled against releasing the figure because it could prove to be "extremely misleading" in that year-end adjustments could produce "a much larger loss." Minutes at 08132. The directors informally decided not to publish the estimated loss figure. Id. at 08116. This estimate simply will not support a claim of fraud where the probable inaccuracy of the figure was emphasized at the time it was presented to the board.*fn20
The essence of defendants' argument in this case is that while they do not deny that they were aware that American was in serious financial difficulty, they did not know that its officers had engaged in fraudulent and illegal conduct. American's directors were, however, informed prior to the December 1974 stock purchases that such conduct had occurred. The board was informed by federal officials on September 11, 1974, that overline loans had been made in violation of law, for which the directors might ultimately be liable. This problem was a frequent topic of discussion at board meetings thereafter. The Regional Administrator's October 29, 1974 letter stated that a bank examiner's report set out "very serious violations of law" and that the Bank's rapid deterioration was due to "illegal acts and gross mismanagement." Minutes at 08139. After such reports from federal officials involved in scrutinizing the operations of the Bank, the directors knew or should have known not only that American had financial problems, but also that these problems were traceable, at least in part, to serious misconduct by American's officers.
The fraud allegations in defendants' affidavits are unsupported by the record and failed to create a genuine issue of material fact in this case. We therefore affirm the district court's decision with respect to these allegations.
In addition to their allegations of fraud, defendants claim that their notes are not enforceable against them due to lack of consideration. They appear to regard this defense as merely a rephrasing of their fraud defense.*fn21 To the extent that this is the case, the defense has been disposed of in Part II, supra. To the extent that defendants intend lack of consideration to be an independent defense, we agree with the district court's disposition of the issue, for the reasons discussed below.
The notes at issue in this case were given to American in exchange for American's payment of defendants' pre-existing obligations on the Hampton loans. Discharge of a pre-existing debt is adequate consideration under Wisconsin law to support execution of a note. See Hessman v. O'Brien, 258 Wis. 243, 45 N.W.2d 730, 732-33 (1951). To avoid this result, defendants attempt to consolidate three separate transactions the Hampton loan, the purchase of stock, and the American loan into a single transaction by arguing that the real consideration for the notes given to American in April 1975 was the stock purchase from Bankshares in December 1974 and that the stock was worthless. Accepting, for the sake of argument, defendants' view of the transactions, it is nonetheless clear that defendants received consideration for both the Hampton and American notes. The Bankshares stock purchased in 1974, was of uncertain value and may have been worth less than the $5.50 purchase price; however, since Bankshares was still in operation at that time, its stock had some value. The fact that the stock became worthless later is irrelevant, as is the fact that it may not have been worth the price paid. "(M)ere inadequacy of consideration" is not a defense in this case. See Home Savings Bank v. Gertenbach, 270 Wis. 386, 71 N.W.2d 347, 352 (1955). The district court properly found that the defense of lack of consideration presented no genuine issue of material fact.*fn22
For the reasons stated above we affirm the district court's granting of summary judgment in favor of the FDIC.