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
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.
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 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
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 ...