The opinion of the court was delivered by: HOLDERMAN
JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE:
Tax Investments, Inc. and Howard Harris ("plaintiffs") brought this action against the Federal Deposit Insurance Corp. ("FDIC"), as receiver for Sun Savings and Loan Association ("Sun Savings"), for breach of contract alleging that the FDIC failed to fund plaintiffs as required by a loan agreement. The FDIC brought a counterclaim against plaintiffs for default on the loan agreement. The FDIC moves for summary judgment on the complaint and its counterclaim.
Prior to October 13, 1983, Sun Savings agreed to lend plaintiffs Howard Harris and Tax Investments, Ltd. $ 3.2 million on the condition that an Illinois financial institution would act as "lead lender" and would "sell" ninety-five percent of the loan to Sun Savings.
In October, 1983, First State Bank and Trust Company of Park Ridge ("FSB") agreed to become the lead lender by extending a loan of $ 3.2 million to plaintiffs to purchase delinquent tax parcels. The loan commitment required plaintiffs to provide FSB with a "participant" who would purchase a ninety-five percent participation in the loan. On November 8, 1983, plaintiffs reduced their loan request to $ 1 million.
On July 18, 1986, the Federal Savings and Loan Insurance Corporation ("FSLIC") was appointed receiver for Sun Savings pursuant to 12 U.S.C. § 1729(c)(2). In 1989, the FDIC, as manager of the FSLIC Resolution Fund, replaced the FSLIC as receiver for Sun Savings.
Plaintiffs have not made any payments on the loan since August 1, 1986. Plaintiffs say that its failure to pay on the loan was due to the FDIC's refusal to fund the perfection of unredeemed tax certificates after the two year redemption period had expired. Plaintiffs assert that Sun Savings was aware that plaintiffs sought funding for both steps of a two-step process: First, Tax Investments would purchase liens and obtain tax certificates on properties with unpaid real estate taxes. Second, after a two year redemption period expires, Tax Investments would obtain a deed to the real property by perfecting any tax certificates which had not been redeemed by the property owners. According to plaintiffs, Sun Savings had assured plaintiffs at the time of the initial loan that Sun Savings would loan additional funds to them so that Tax Investments could accomplish the second step -- perfecting unredeemed tax certificates upon expiration of the two-year redemption period.
Specifically, plaintiffs assert that a loan commitment letter "reflects our understanding that Sun Savings would also fund the perfection of tax certificates" and that Harris wrote a letter to Sun Savings "expressing our understanding about what would happen on certificates which were not redeemed." (Harris Aff., paras. 6-7.) The FSLIC, as receiver for Sun Savings, refused to fund a new loan to perfect the tax certificates. (Id. at para. 10.)
The FDIC, as receiver for Sun Savings, has moved for summary judgment on (1) the complaint filed by plaintiffs and (2) FDIC's counterclaim against plaintiffs.
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment the evidence of the non-movant must be believed, and all justifiable inferences must be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the ...