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FEDERAL DEPOSIT INSURANCE CORPORATION v. MEYER

December 23, 1983

FEDERAL DEPOSIT INSURANCE CORPORATION, PLAINTIFF,
v.
GEORGE C. MEYER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

On May 27, 1983 Judge Joel Flaum issued a memorandum opinion that entitled Federal Deposit Insurance Corporation ("FDIC") to entry of a (1) Decree of Foreclosure and Sale on Count I of its Complaint and (2) a Judgment Order on Complaint Count III. On September 9, 1983 this Court (to whom this action had been assigned on Judge Flaum's appointment to our Court of Appeals):

    1. dismissed Complaint Count II without prejudice
  pursuant to the parties' stipulation;
    2. signed the Decree and Judgment Order in favor of
  FDIC; and
    3. expressly directed judgment to be entered on
  Counts I and III under Fed.R.Civ.P. ("Rule") 54(b),
  finding those counts severable from the counterclaim
  filed by George C. Meyer ("Meyer") against FDIC.*fn1

FDIC now moves to dismiss Meyer's counterclaim under Fed.R.Civ.P. ("Rule") 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated in this memorandum opinion and order, FDIC's motion is denied.

Facts*fn2

In 1973 and 1974 Meyer advanced sums and performed services at the request of several representatives of Drovers in connection with Chicago real estate known as the Arthington Warehouse. Those representatives "assured" Meyer he would be compensated for his services and reimbursed for the sums advanced by him. Though Meyer demanded payment from Drovers and its representative Ken Olson, he has not yet been paid.

In 1978 the Comptroller of the Currency determined Drovers was insolvent, ordered it closed and appointed FDIC as receiver. FDIC in its corporate capacity then purchased certain assets of Drovers and assumed Drovers' obligation to Meyer. FDIC brought the Complaint in its corporate capacity to enforce the ownership interest in Drovers' assets.

FDIC's Theory

FDIC seeks a legal haven in the dual capacity in which it acts. It says it cannot be liable for Drovers' obligations when wearing its corporate hat.

When a bank is closed due to insolvency, the closing authority can ask that FDIC act as the bank's receiver (Section 1821(e)).*fn3 Despite such appointment, FDIC in its corporate capacity can also buy the bank's assets to fulfill its function as an insurer of depositors' funds. When FDIC acts both as receiver and as insurer, its purchase of bank assets must be court-approved (Section 1823(d)).

FDIC correctly contends courts have upheld the distinction between actions of FDIC as receiver and actions in its corporate capacity as insurer. FDIC v. Citizens Bank & Trust Co. of Park Ridge, Illinois, 592 F.2d 364, 367 (7th Cir. 1979). Because FDIC sued Meyer solely in its corporate capacity, Meyer's counterclaim can run against FDIC only in that same capacity, not as receiver.

Congress enacted Section 1823(e) to protect depositors' funds, shielding FDIC against enforcement of "secret" agreements that would defeat FDIC's interest in the purchased assets. Howell v. Continental Credit Corp., 6 ...


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