Murphy v. Federal Deposit Insurance Corp.

SCHROEDER, Circuit Judge: This is a dispute between the Federal Deposit Insurance Corporation and Patrick J. Murphy, the holder of two letters of credit issued by a failed bank, The First National Bank, Chico. Mr. Murphy was an investor in the parent company of the bank, Pacific National Bancshares (“PNB”), and had also served as one of PNB’s directors. The Bank — 1487 — issued the letters of credit as security for the obligations of PNB to Murphy.. In this litigation, Murphy sought to enforce the letters of credit against the FDIC in its corporate capacity as assignee of the assets and liabilities of the bank.' The FDIC defended on the ground that it was not responsible for obligations of the Bank that were not properly carried on its books and records, relying upon the doctrine of D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and its partial codification in 12 U.S.C. § 1823(e). The FDIC also contended that it was not responsible for the Bank’s obligations that violated federal statutes prohibiting inadequately secured credit transactions between the Bank and affiliate entities. See 12 U.S.C. §§ 371c(e), 375b. The district court, relying upon our decision in First Empire Bank v. FDIC, 572 F.2d 1361 (9th Cir.), cert. denied, 439 U.S. 919, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978), ruled that the FDIC had to honor its obligations to Murphy on the letters of credit. The district court denied the FDIC’s motion for summary judgment, tried the issues of breach of contract and fi’aud to the jury, and entered judgment on the jury’s verdict in favor of Murphy. The court’s judgment required the FDIC to honor the letters of credit and to pay Murphy a ratable share of the Bank’s assets pursuant to 12 U.S.C. §§ 91, 194 and First Empire. The FDIC appeals. The district court denied Murphy’s post-trial motion challenging the award of only a ratable share and contending that he was entitled to a dollar for dollar setoff against his obligation to the FDIC on a. separate loan transaction. Murphy cross-appeals. In First Empire, supra, creditors of a failed bank sued to enforce their claims against the FDIC as Receiver of the failed bank. This court ruled in favor of the creditors against the FDIC, holding that the creditors were entitled to a ratable dividend under the National Banking Act, 12 U.S.C. §§ 91, 194. The test employed by the court was whether or not the Bank’s liability on the claim had accrued and was unconditionally fixed at the date of insolvency. This court found that the letters of credit were in existence before insolvency and were not dependent on any new contractual obligations arising after insolvency, and so ruled for the creditors. In contrast to the facts of this case, however, the First Empire letters of credit involved no irregularities in, the manner in which the obligations were carried on the books and records of the bank, nor were they issued in connection with any transactions that violated federal banking statutes. In this case, both parties stipulated that “[t]he letters were' not carried on the books of accounts, accounting records or ledgers of FNB as liabilities of the bank, contingent or otherwise, as of March of 1986. The letters are referred to-.in .the financial statements of the year ended December 31, 1985.” These letters of credit were issued as a result of the Bank’s extending credit to its parent company without the security required by federal banking statutes. The issues in this case concerning the enforceability of a letter of credit in these circumstances are issues of first impression in this circuit. We hold that these letters of credit are not enforceable against the FDIC because they were not reflected in. the Bank’s books and records and lacked the collateral legally required under the banking statutes. We therefore do not reach the remaining issues in the FDIC’s appeal or Murphy’s cross-appeal. BACKGROUND The story begins in 1982 when Frederick L. Hilger, Sr. organized Pacific National Bancshares as a holding company in order to acquire, for $3,000,000, First National Bank, Chico. Patrick Murphy was one of the initial group that Hilger persuaded to invest in the holding company, PNB. Investors contributed $750,000; PNB borrowed the remaining $2,250,000 from Security Pacific National Bank. Murphy contributed $83,000 to the investment, agreed to be a guarantor of the Security Pacific loan, and became a director of both the Bank and PNB. About eighteen months later, in July of 1984, Murphy resigned from the directorships and sold his stock in PNB back to the — 1488 — company for the ostensible price of $400,000.. The transaction, effected on PNB’s behalf by Hilger, consisted of the payment to Murphy of $5,000 in cash and PNB’s promissory note for the remaining $395,000. The note, in turn, was secured by a letter of credit issued by the Bank, referred to in these proceedings as the 1984 letter. Because the letter of credit was issued to secure the obligations of the Bank’s holding company, federal law required that there be collateral for any letter of credit issued by the Bank on behalf of any affiliate. 12 U.S.C. § STlcCcXl).1 PNB provided no collateral for the letter of credit. The FDIC also relies on 12 U.S.C. § 375b, which prohibits loans or extensions of credit to directors and controlling shareholders. The parties disagree about whether Murphy was still a director when he received ■ the letter of credit. We do not reach this question, however, because the violations of 12 U.S.C. § 371c(e) are sufficient to prevent Murphy from collecting from the FDIC. In March of 1985 an audit criticized the bank for unlawful extensions of credit to directors and officers. In June of 1985 the Office of the Comptroller of the Currency issued a Cease and Desist Order based on a determination that violations of law and sound banking practices threatened thfe bank’s financial soundness. The order included a prohibition against extending credit to affiliates without OCC review. In October, 1985, Murphy loaned $190,000 to PNB so that PNB could pay the next installment of its loan to Security Pacific. Murphy remained as a guarantor of the Security Pacific loan. The transaction was similar to the Í984 letter of credit transaction in that PNB gave Murphy promissory notes for $190,000 and the Bank issued a letter of credit on behalf of PNB to Murphy for $190,-000. PNB provided the Bank with no collateral for this letter of credit. In addition, the letters of credit, and, of course, the lack of collateral for‘their issuance, were not approved by the Board of Directors of the Bank, nor were they carried on the regular' books and records of the Bank. This is significant to this case because under a line of authority beginning with the Supreme Court’s decision in D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and partially codified in 12 U.S.C. § 1823, the FDIC is afforded certain protections from liability on obligations that are not properly documented in a bank’s records. A year later, in October, 1986, PNB defaulted on its payments to Security Pacific, and by November 20, 1986, FDIC had been appointed as Receiver. Hilger was later convicted of fraud violations, in connection with his handling of PNB and the Bank. After PNB defaulted on the note payments to Murphy in January, 1986, his demands to PNB and the Bank on the letters of credit were not honored. He then filed claims with the FDIC; these were denied. Murphy’s suit in the United States District Court for the Northern District of California in April, 1988, resulted in the judgment entered in his favor after a jury trial, from which the FDIC now appeals. . DISCUSSION Murphy’s position at all times in this litigation is that he is the bona fide holder of — 1489 — letters of credit that the FDIC must honor. He maintains that so long as proper presentment was made,2 the FDIC as Receiver can avoid the obligation of the bank only if Murphy was in pari delicto with Hilger in a scheme to defraud. Because the jury exonerated Murphy of fraud, he contends that he correctly prevailed in the district court. Murphy’s position persuaded the district court, for it embodies two unassailable principles well grounded in our law. The first is that letters of credit, by their very nature, represent an obligation of the issuing bank independent of the relationship between the bank’s customer, who asked that the letter of credit be issued, and the beneficiary of the letter of credit. This is true of the type of letter of credit at issue in this case, the standby letter of credit, as well as more traditional commercial letters of credit. While a commercial letter of credit facilitates the sale of goods, a standby letter of credit guarantees that a bank’s customers will perform their underlying financial obligations. “The principal difference between the traditional letter of credit and these newer standby letters is that “whereas in the classical setting, the letter of credit contemplates payment upon performance, the standby credit contemplates payment upon failure to perform.’” First Empire, 572 F.2d at 1367 (citations omitted). Because letters of credit stand as independent financial obligations, the general rule on standby letters of credit is that they must be honored upon presentment of the proper documents. See Andy Marine Inc. v. Zidell, Inc., 812 F.2d 534, 536 (9th Cir.1987). As we noted in FDIC v. Bank of San Francisco, 817 F.2d 1395, 1398 (9th Cir.1987), “A letter of credit is an instrument of commerce and finance which is sui generis.” Thus, any defenses that may arise in connection with the underlying transaction between the customer and the beneficiary should not be asserted by the bank when asked to pay the letter of credit. The second principle is that announced by the First Empire decision itself. The FDIC as Receiver must treat the bank’s obligations on letters of credit in the same manner it treats its obligations to all creditors. The FDIC was required to comply with the provisions of the National Bank Act, 12 U.S.C. §§ 91, 194, and tó honor claims that had accrued and were unconditionally fixed at the date of insolvency. 572 F.2d at 1367. Murphy insists that the FDIC is so obligated here. The difficulty with Murphy’s position is that it essentially asks us to overlook the flawed, concealed and unlawful banking practices that brought about these letters of credit. The legality of the First Empire letters was not challenged. See id. The FDIC asks us to look to the rapidly expanding authority aimed at protecting the assets of failed banking institutions from depletion by claims and apparent defenses that do not appear on the books and records of the bank. As a threshold position the FDIC asks us to give a broad brush of approval to the principle that the FDIC as Receiver should not have to honor any claims that do not appear on the books and records of the failed bank. The FDIC’s position has its origins in the D’Oench, Duhme case, supra. The FDIC argues that it is not bound by side agreements not reflected in the bank’s records. The D’Oench doctrine and § 1823(e) protect the FDIC from claims not listed in a bank’s records; the FDIC is allowed to rely on the bank’s records when it takes over insolvent banks, and is protected from unrecorded claims against it. Section 1823(e) states that: No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section shall be valid' against the Corporation unless such agreement— (1) is in writing, (2) was executed by the depository institution ... contemporaneously with the ac — 1490 — quisition of the asset by the depository institution, (3) was approved by the board of directors .. which approval shall be reflected in the minutes of said board or committee, and (4) has been, continuously, from the time of its execution, an official record of the depository institution. 12 U.S.C. § 1823(e). The original stated purpose of the D’Oench doctrine and § 1823(e) was to allow federal and state bank examiners to rely on a bank’s records when they evaluate a bank’s assets. 1 Another purpose is to encourage banks to undertake thorough consideration of unusual loan transactions and to prevent fraudulent transactions. Langley v. FDIC, 484 U.S. 86, 91, 108 S.Ct. 396, 401, 98 L.Ed.2d 340 (1987); see also FDIC v. Zook Bros. Const. Co., 973 F.2d 1448, 1451 (9th Cir.1992). Initially, D’Oench was read to bar affirmative defenses based on secret agreements by parties sued by the FDIC. In FSLIC v. Gemini Management, 921 F.2d 241 (9th Cir.1990), this court expanded the range of D’Oench’s application. Gemini Management raised a secret agreement as a defense and as a counterclaim against the FSLIC. The court noted the urgency of the savings and loan crisis, and supported a broad application of D’Oench, not only to defenses but to counterclaims as well. The Gemini court also took a broad reading of the secret agreement requirement of D’Oench. Gemini argued that the agreement in question was not secret, but the court found that a letter in the flies with incomplete information was not enough to defeat the D’Oench doctrine. “We believe D’Oench and its progeny require a clear and explicit written obligation.” 921 F.2d at 245; see also FSLIC v. Two Rivers Assocs., Inc., 880 F.2d 1267, 1276 (11th Cir.1989). The key language in D’Oench and its progeny is that a party “lend himself’ to the scheme or arrangement by which the banking authority was likely to be misled. Knowledge is not required. This aspect of D’Oench is highlighted in recent cases which emphasize the likelihood of the transaction to deceive the FDIC rather than the conduct of the affected investor. See, e.g., In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332 (1st Cir.1992). The D’Oench, Duhme equitable doctrine and § 1823(e) are often dealt with interchangeably, but they are not identical. See, e.g., FDIC v. McClanahan, 795 F.2d 512, 514-16 (5th Cir.1986); Agri Export Co-op v. Universal Sav. Ass’n, 767 F.Supp. 824, 834 (S.D.Tex.1991). The language of § 1823(e), quoted above, is much more specific than D’Oench about the requirements of writing: agreements affecting assets must be approved by the board of directors and carried officially on the records of the depository institution. “[I]n the application of the statute, the borrower’s conduct or participation in a scheme to deceive the insurer is not at issue. In contrast, the, D’Oench, Duhme doctrine is a rule of equitable estoppel and, therefore, applies to any defense a borrower may assert in which the borrower participated in a scheme which tends to deceive the insurer. ‘The test is whether the note was designed to deceive the creditors or the public authority or would tend to have that effect.’ Thus, the statute expands D’Oench, Duhme in that it applies to any agreement, whether or not it was ‘secret,’ and regardless of the maker’s participation in a scheme. At the same time, however, the statute is narrower than D’Oench, Duhme in that it applies only to agreements, and not to other defenses the borrower might raise.” Marsha Hymanson, Borrower Beware: D’Oench, Duhme and Section 1823 Overprotect the Insurer When Banks Fail, 62 S.Cal.L.Rev. 253, 271-72 (1988) (footnotes omitted). Section 1823 is a statutory mandate that stands independent of the D’Oench, Duhme common law equitable underpinnings. They are both the subject of an increasing volume of litigation in recent years as the courts struggle with the aftermath 'of the crash of highflying financial institutions of the 1980s. Murphy contends the D’Oench doctrine does not apply in this case. As he points out, this Circuit nearly twenty years ago recognized an innocence exception to D’Oench, in FDIC v. Meo, 505 F.2d 790 (9th Cir.1974). Meo was a bona fide purchaser of stock who — 1491 — had given a promissory note to the bank, but had not received the proper stock certificates. We overruled the district court’s judgment in favor of the FDIC on the note and the district court’s refusal to recognize an undisclosed defense of failure of consideration in the case under D’Oench. We termed Meo a “completely innocent party,” and we concluded “that a bank borrower who was neither a party to any deceptive scheme involving, nor negligent with respect to, circumstances giving rise to the claimed defense to his note is not estopped from asserting such defense against the bank’s receiver.” Id. at 792-93. In re Century Centre Partners, Ltd. v. FDIC, 969 F.2d 835, 839 (9th Cir.1992), limits the Meo exception, stating that Meo must be read in light of the D’Oench rationale of protecting depositors and creditors. In Century Centre, the party could have investigated the entire transaction before signing the papers; since he did not investigate, he “lent himself’ to the scheme and so was barred by D’Oench. Id. Some circuits have rejected the Meo innocence defense, arguing that it does not survive the Supreme Court decision in Langley, which barred misrepresentation as a defense under D’Oench and § 1823(e). See, e.g., Baumann v. Savers Fed. Sav. & Loan Ass’n, 934 F.2d 1506, 1516 (11th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1936, 118 L.Ed.2d 543 (1992); In re 601, Columbus Ave. Realty Trust, 968 F.2d at 1347. This circuit recently expressly declined to decide this question post-Langley. FDIC v. Zook Bros. Const., 973 F.2d at 1452. We do not decide the question either, because we hold that the Meo defense would not apply in the circumstances of this case in any event; This ease presents issues of first impression because neither the Supreme Court nor this court has been called upon to determine whether, or in what circumstances, the FDIC can refuse to honor letters of credit by relying upon both § 1823(e) and regulatory banking statutes. In resolving these issues, it is important to bear in mind that the defenses that the FDIC asks us to interpose to these letters of credit are not based upon the relationship between the customer (PNB) and the beneficiary (Murphy). See FDIC v. Bank of San Francisco, 817 F.2d at 1399 (fraud in the underlying transaction between customer and beneficiary does not justify non-payment of letter of credit). The principle of independence precludes either the bank or the FDIC from asserting the latter defenses for a claim on a letter of credit. Rather, the FDIC’s defenses are based on both irregularities in the Bank’s books and records and on illegalities in the banking transactions that made the letter of credit possible. We therefore need not accept the FDIC’s broadest contention, that it need not honor any transaction that is not carried on the records of the bank as described in § 1823(e). We agree with those authorities that have observed that insubstantial irregularities in the books and records provide no defense to the FDIC or federal institutions performing a similar function. See, e.g., Agri Export, 767 F.Supp. at 834 (RTC could not avoid payment on an otherwise valid letter of credit that involved no side agreement pertaining to a particular asset). In this case, the Bank violated a federal statute aimed at preventing the extension of credit to affiliates without collateral. Not only was the letter of credit itself not carried on the books, but the lack of collateral, in violation of statutory requirements, was concealed as well. . If PNB had given collateral to the Bank as security for the issuance of the letters of credit and had made a secret agreement that the Bank would never seek recourse against that security, we would have little doubt that § 1823(e) would be violated. This transaction is functionally the same. The FDIC is entitled to at least as much protection here as it would be in those circumstances. There is an “asset” within the purview of § 1823(e). See, e.g., OPS Shopping Center, Inc. v. FDIC, 992 F.2d 306, 309 (11th Cir.1993) (rejecting argument that letter of credit was a “liability of the bank rather than a specific asset of the bank which has been acquired by the FDIC”). The issuance without collateral and the concealments were, of course, accomplished by PNB and the Bank, not by Murphy. Murphy suggests that this fact' distinguishes his situation from the situations where we — 1492 — have applied § 1823(e). Those cases involved a two-party transaction, not a dispute between the issuer and the beneficiary of a letter of credit. See, e.g., Langley, supra; Zook Bros., 973 F.2d at 1449. It may well be argued, and convincingly, that the interests of a holder of a letter of credit should not be defeated by irregularities in a banking transaction, even when they involve statutory violations, where the irregularities do not materially affect the ability of the customer to obtain the credit. In other words the beneficiary of a letter of credit might well prevail against the FDIC where the irregularities or violations were technical and immaterial to the bank’s ability to extend credit to its customers. Here, however, Murphy is not in a position to succeed on such a theory. These letters of credit transactions were structured in order to permit the PNB to obtain credit from a related institution more easily than permitted under the collateral requirements of federal law. Murphy was the intended beneficiary of that unlawful extension of credit. The first letter represented payment of an undoubtedly inflated purchase price of his stock in PNB, and the second, the 1985 letter of credit, represented security for his loans to PNB that avoided or at least delayed his being responsible on his guarantee of PNB’s multimillion dollar debt. These particular letters of credit should not be the responsibility of the FDIC. Contrary to the dissent’s assertions, the problem is not an irregularity in the underlying stock purchase sale and loan transactions between PNB and Murphy. The problem lies in the credit extended by the bank to PNB, credit extended without the collateral required by federal banking law. This case does not implicate the traditional principle that a letter of credit is independent of the performance or non-performance of its underlying contract between the bank customers and beneficiaries. See U.C.C. § 5-109; Anderson, Uniform Commercial Code § 5-109-14 (issuer not responsible for any underlying contract or agreement between customer and beneficiary of letter of credit). The issue is not the bank’s liability on the letter of credit, but the liability of the FDIC after the bank’s failure. It is exactly that situation to which section 1823(e) is addressed. Thus the district court’s error, which the dissent seeks to perpetuate, was that the FDIC had • to honor the letters of credit unless Murphy was guilty of fraud. Neither that issue, nor the cleanliness of Murphy’s hands has any relevance, to the FDIC liability. We fully accept the jury’s verdict that Murphy was not a participant in Hilger’s fraud and that Murphy’s unfortunate investment was made in ignorant good faith. The applicability of section 1823(e) does not rest on such considerations. Nor does it matter whether the agreement sought to be enforced against the FDIC was oral or written. What matters is whether the agreement diminished the FDIC’s interest in an asset acquired when it took over the bank, and whether the agreement was approved by the board of directors and properly recorded on the books and records of the bank. These letters of credit, and the absence of legally required' collateral to back them up, were not properly approved or carried on the bank’s records. The letters of credit have a palpable adverse impact on the assets of the bank as required for invocation of § 1823(e)’s protection. The letters of credit issued in violation of the collateral requirements of federal law created obligations that could only be satisfied by assets of the bank acquired by the FDIC. Had the law been followed and collateral supplied, the remaining assets of the bank would not have been threatened. Section 1823(e) was passed to ensure that the FDIC does not have to honor such obligations.- The JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE MATTER IS REMANDED WITH INSTRUCTIONS TO ENTER JUDGMENT IN FAVOR OF THE FDIC. Footnotes [1] (c) Collateral for certain transactions with affiliates (1) Each loan or extension of credit to, or guarantee, acceptance, or letter of credit issued on behalf of, an affiliate by a member bank' or its subsidiary shall be secured at the time of the transaction by collateral having a market value equal to— (A) 100 per centum of the amount of such loan or extension of credit, guarantee, acceptance, or letter of credit, if the collateral is composed of — [certain obligations of the United States]. (B) 110 per centum of the amount of such loan or extension of credit, guarantee, acceptance, or letter of credit if the collateral is composed of obligations of any State or political subdivision of any State; (C) 120 per centum of the amount of such loan or extension of credit, guarantee, acceptance, or letter of credit if the collateral is composed of other debt instruments, including receivables; or (D) 130 per centum of the amount of such loan or extension of credit, guarantee, acceptance, or letter of credit if the collateral is composed of stock, leases, or other real or personal property. [2] The FDIC argues that Murphy failed to comply with the presentment requirements, because he did not comply with the facial terms of the agreements. See FDIC v. Bank of San Francisco, 817 F.2d 1395, 1398 (9th Cir.1987). It appears from-the record that proper presentment was made, and the district court resolved the factual issues against the FDIC. We perceive no basis for reversal on this ground. [1] The Bank originally refused to honor the letters of credit on the ground that they were not authentic, a theory that the FDIC does not pursue on appeal.