Federal Deposit Insurance v. Wright

963 F.2d 75
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 17, 1992
DocketNo. 91-1335
StatusPublished
Cited by8 cases

This text of 963 F.2d 75 (Federal Deposit Insurance v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance v. Wright, 963 F.2d 75 (5th Cir. 1992).

Opinion

W. EUGENE DAVIS, Circuit Judge:

This case presents the narrow question of whether the FDIC-as-Receiver can use § 550(b)(1) of the Bankruptcy Code to defend against a trustee’s avoidance of a preferential transfer. We hold that the FDIC is not entitled to the defense and therefore affirm the district court.

I.

In June 1988 the First State Bank of Abilene (Bank) obtained a judgment against William H. Still to enforce a guaranty. A month later, the Bank obtained writs of garnishment against Still’s obli-gors. In August 1988, Still filed for bankruptcy under Chapter 7. The Bank timely filed a Proof of Claim of $308,334 in Still’s bankruptcy proceeding. Then, in February 1989, the Bank failed, and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver.

Still’s bankruptcy trustee (Trustee) avoided the writs of garnishment, now controlled by the FDIC, pursuant to § 547 of the Bankruptcy Code (“the Code”). The FDIC sought the defense of § 550(b)(1). The bankruptcy court held that the FDIC is not entitled to protection under § 550(b) and allowed the Trustee to avoid the garnishments. In re Still, 113 B.R. 311 (Bankr.N.D.Tex.1990). The district court affirmed. 124 B.R. 24 (N.D.Tex.1991). The FDIC timely appealed to this court.

II.

The issue of whether the FDIC-as-Receiver merits the protection of § 550(b) is one of first impression in this or any other Court of Appeals. Two bankruptcy courts within this circuit have addressed the issue and have reached opposite results. Compare Osherow v. First RepublicBank San Antonio, N.A. (In re Linen Warehouse, Inc.), 100 B.R. 856 (Bankr.W.D.Tex.1989) (FDIC satisfies requirements of § 550(b)), with Thistlethwaite v. FDIC (In re Pernie Bailey Drilling Co.), 111 B.R. 565 (Bankr.W.D.La.1990) (contra). We review de novo the district court’s interpretation of the statute. In re Missionary Baptist Found. of America, Inc., 712 F.2d 206, 209 (5th Cir.1983).

Section 547 of the Code grants trustees the power to avoid certain transfers of the debtor’s property occurring within the 90 days preceding bankruptcy. The Trustee and the FDIC agree that the garnishments constitute preferential transfers under § 547. Section 550(a) specifies the persons from whom a trustee may recover a preferential transfer:

(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or
(2) any immediate or mediate transferee of such initial transferee.

11 U.S.C. § 550(a). If the FDIC is a “transferee” at all, it is a “mediate transferee” under § 550(a)(2) because it received the transfer from the Bank, the initial transferee, when the Bank went into receivership.

Section 550(b) places a limit on a trustee’s ability to recover from subsequent transferees under subsection 550(a)(2). A trustee may not recover from:

(1) a [1] transferee that [2] takes for value, ... [3] in good faith, and [4] without knowledge of the voidability of the transfer avoided; or
(2) any immediate or mediate good faith transferee of such transferee.

11 U.S.C. § 550(b). Thus the FDIC must satisfy all four requirements of § 550(b)(1) to withstand the Trustee’s avoidance power. We agree with the district and bankruptcy courts that the FDIC-as-Receiver does not qualify for § 550(b)(1) protection because it does not take “for value.” Accordingly, we need not and do not decide whether the FDIC satisfies the other three requirements of § 550(b)(1).

The Bankruptcy Code does not define “value.” It is undisputed that the FDIC did not pay any cash or other property to the Bank when it succeeded to the Bank’s assets as receiver. The FDIC maintains, however, that it takes a failed bank’s assets “for value” in two ways: by assuming [77]*77a bank’s liabilities, and by performing its statutory duties. We address these two arguments in turn.

The FDIC contends that it gives value by assuming a failed bank’s liabilities. We agree that assumption of liabilities constitutes “value.” We disagree, however, that the FDIC-as-Receiver actually assumes any liabilities. Ordinarily, a receiver

stands in the place of the bank which he represents, and has only such rights as it had, so that the rights of third parties are not increased, diminished, or varied by his appointment. He takes charge of the banking affairs where the bank left them, and takes over its assets with its concomitant burdens. In other words, he takes only such title to the assets as the bank itself had, subject to all equities which existed against the assets in the hands of the bank.

W.M. Willson et al. eds., 3 Michie on Banks and Banking, Ch. 6, § 96 at 246-47 (Michie, 1974) (emphasis). The FDIC, like any receiver, stands in the shoes of the failed bank, marshals the assets, and administers a fund. See 12 U.S.C. § 1821(d)(2)(B).1 The FDIC-as-Receiver is required to “pay all valid obligations of the insured depository institution in accordance with the prescriptions and limitations of this chapter.” 12 U.S.C.A. § 1821(d)(2)(H) (West 1989). This is not the same as assuming a bank’s obligations. One who “assumes” another’s liabilities becomes personally liable on them. Henry Campbell Black, Black’s Law Dictionary 113 (West, 5th ed. 1979). The FDIC-as-Receiver does not become personally liable on the Bank’s obligations. Under the statute, the “receiver may, in the receiver’s discretion and to the extent funds are available, pay creditor claims which are allowed by the receiver, approved by the [FDIC] ..., or determined by the final judgment of any court of competent jurisdiction....” 12 U.S.C.A. § 1821(d)(10)(A) (West 1989) (emphasis added). This is not a command to assume obligations.

The FDIC-as-Receiver also has the option of settling “all uninsured and unsecured claims on the receivership with a final settlement payment which shall constitute full payment and disposition of the [FDIC’s] obligations to such claimants.” 12 U.S.C.A. § 1821(d)(4)(B)(i) (West, Supp. 1992). The “final payment” is determined by multiplying the amount of each claim by the “final settlement payment rate,” which is the “percentage rate reflecting an average of the [FDIC’s] receivership recovery experience” across all failed banks. Section 1821(d)(4)(B)(ii). Thus the FDIC is not personally liable on the Bank’s liabilities, but is liable only to the extent that money is available in the fund. This is consonant with the ordinary responsibility of receivers. A receiver’s official liability is the liability of the property in receivership, and this liability ends when the receivership terminates. Ralph Ewing Clark, 2 A Treatise on the Law and Practice of Receivers, Ch. 14, § 422 at 708 (W.H. Anderson, 3d ed. 1959). A receiver is personally liable only for a failure to exercise “ordinary care and prudence” in the performance of his or her duties. Id., §§ 392(b) and (c) at 656.

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Bluebook (online)
963 F.2d 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-wright-ca5-1992.