John Acevedo v. First Union Nat'l Bank

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 26, 2007
• Docket: 06-12477
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 26, 2007 THOMAS K. KAHN No. 06-12477 CLERK

D. C. Docket No. 01-01961 CV-CAM-1

JOHN ACEVEDO,

Plaintiff-Appellant,

versus

FIRST UNION NATIONAL BANK, a foreign banking corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia

(January 26, 2007)

Before DUBINA and WILSON, Circuit Judges, and HODGES,* District Judge.

_____________________ *Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation. DUBINA, Circuit Judge:

John Acevedo (“Acevedo”) appeals from the district court’s order granting

summary judgment in favor of First Union National Bank (“First Union”) which

refused to honor cashier’s checks issued by a failed bank, whose assets and

liabilities First Union assumed. For the reasons set forth below, we affirm the

district court’s entry of summary judgment in favor of First Union.

I. BACKGROUND

In July 1981, Southeast Bank (“Southeast Bank”) in Miami, Florida, issued

five cashier’s checks, totaling $450,000, to five named payees (Roberto Sanchez

(“Sanchez”), Alvaro Ocampo, Eugenio Echavarria and Juan Santamaria). In

August 1981, Sanchez transferred all five cashier’s checks to Juan Diaz (“Diaz”).1

Ten years later, in 1991, Southeast Bank failed, and the Federal Deposit Insurance

Corporation (“FDIC”) assumed receivership over the bank. The FDIC, as

Southeast Bank’s receiver, was required to pay Southeast Bank’s insured deposits

in cash or make such funds available to depositors in another insured depository

institution. See 12 U.S.C. § 1821(f)(1) (1994). The FDIC chose the latter option

and entered into an Assistance Agreement with First Union under which First

Union assumed Southeast Bank’s liability for demand deposits, including

1 It is unclear how Sanchez became the holder of all five cashier’s checks.

2 outstanding cashier’s checks. The FDIC transferred funds to First Union to cover

the liabilities.

As receiver, the FDIC also assumed control of Southeast Bank’s records and

was responsible for notifying Southeast Bank’s depositors that they must claim

their deposit. See 12 U.S.C. § 1822(e) (1992) (amended 1993).2 The Assistance

Agreement required First Union to return any unclaimed funds to the FDIC if,

within eighteen months after Southeast Bank’s closing, any depositor had not

claimed his unpaid deposit. Depositors who had failed to claim their deposit were

barred from asserting a right to the unclaimed deposits, if the FDIC provided

notice pursuant to § 1822(e). See id.; see also Acevedo, 357 F.3d at 1248.

In September, October, and November 1991, The Miami Herald published a

notice to Southeast Bank’s creditors. The notice advised creditors that Southeast

Bank had closed and that creditors must present their claims to the FDIC by

December 31, 1991. The notice also advised creditors that claims filed after

December 31, 1991, may be barred in accordance with 12 U.S.C. § 1821.

Although the amended 12 U.S.C. § 1822(e) did not change the notification

2 “In 1993, Congress amended 12 U.S.C. § 1822(e), but instructed that the former version of § 1822(e) apply to banks placed in receivership between January 1, 1989, and June 28, 1993.” Acevedo v. First Union Nat’l Bank, 357 F.3d 1244, 1248 n.1 (11th Cir. 2004); see also Unclaimed Deposits at Insured Banks and Savings Associations, Pub. L. No. 103-44, sec. 2(b), 107 Stat. 220, 221 (1993).

3 procedures for banks placed in receivership between January 1, 1989, and June 28,

1993, for purposes of existing receiverships, Congress instructed that § 1822(e)

not bar an insured depositor’s claim, so long as the claim was made prior to the

termination of the receivership. See Pub. L. No. 103-44, sec. 2(b), 107 Stat. 220,

221. As a result, in September 1993, The Florida Times-Union (Jacksonville), the

Orlando Sentinel, the St. Petersburg Times, The Tampa Tribune, The Palm Beach

Post, the Sarasota Herald-Tribune, the South Florida Sun-Sentinel (Broward,

Palm Beach, and Dade counties), and The Miami Herald published notices to the

former depositors of Southeast Bank. The notices advised depositors that

Southeast Bank was closed, and that the FDIC had arranged for all deposits to be

transferred to First Union. The notice also advised depositors that Congress had

extended the claiming period, and that depositors could claim their deposits at any

time before the FDIC terminated the receivership. Finally, the notice advised

depositors that claims filed after the FDIC terminated the receivership would be

barred.

In 1996, Diaz transferred the five cashier’s checks, issued by Southeast

Bank, to Acevedo. On January 16, 2001, Acevedo, through his attorney, tendered

the five cashier’s checks to First Union for payment; however, First Union refused

4 to honor them.3 Acevedo filed suit against First Union in state court for its refusal

to honor the cashier’s checks. First Union removed the action to the United States

District Court for the Northern District of Georgia. On the parties’ cross-motions

for summary judgment, the district court entered summary judgment in favor of

First Union because it held that First Union had complied with the Assistance

Agreement by returning the funds representing the unclaimed deposits to the

FDIC.

On appeal, this court concluded that no language within the Assistance

Agreement expressly terminates First Union’s liability to pay the cashier’s checks.

Acevedo, 357 F.3d at 1248. We held that the Assistance Agreement neither

limited First Union’s liability to the passing of a specified time or the occurrence

of a certain event, nor did the Assistance Agreement expressly shift liability for an

unclaimed deposit back to the FDIC. Id. However, we explained that Acevedo,

having failed to present the cashier’s checks within eighteen months after the

FDIC was appointed receiver, was barred from recovering the deposits, pursuant

to § 1822(e), “if the FDIC mailed notice to the depositor’s last known address

appearing on the failed bank’s records.” Id. Therefore, we reversed the judgment

3 The parties do not indicate the date upon which the FDIC terminated the receivership; however, we assume that the FDIC terminated the receivership prior to January 16, 2001.

5 in favor of First Union and remanded the case for a determination whether the

FDIC satisfied the notice provision in § 1822(e). Id. at 1248-49.

On remand, First Union presented the affidavit testimony of George Fritz

(“Fritz”), FDIC Supervisory Resolutions and Receiverships Specialist. Fritz

attested that neither the five named payees nor the subsequent holders of the

checks were listed as depositors of Southeast Bank. Additionally, Fritz attested

that Southeast Bank had no address information on file for any of the payees or

subsequent holders of the checks. Therefore, according to Fritz, the FDIC could

not, and did not, mail notice to any of the payees or subsequent holders of the

checks.

The district court concluded that mailed notice is required by the Due

Process Clause only if a claimant’s identity is known or reasonably ascertainable.

Given that the records of Southeast Bank did not contain the names or addresses

of any of the holders of the cashier’s checks, the district court found that notifying

the holders by mail would require impracticable and extended searches. Under

these circumstances, the district court held that published notices were sufficient

to meet the requirements of due process. The district court again entered summary

judgment in favor of First Union. Acevedo appeals that judgment.

II. STANDARD OF REVIEW

6 We review de novo a district court’s order granting summary judgment.

Green v. Union Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002). In

conducting our review, we apply the same legal standards as the district court.

Vaughan v. Cox, 343 F.3d 1323, 1328 (11th Cir. 2003). Thus, we review the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in his favor. Artistic Entm’t, Inc. v. City of Warner Robins, 331 F.3d

1196, 1203 (11th Cir. 2003). Summary judgment is not appropriate unless the

evidence demonstrates 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).

III. DISCUSSION

Acevedo argues that the district court erred in granting summary judgment

in favor of First Union because the plain language of 12 U.S.C. § 1822(e) requires

notice by mail. Acevedo does not dispute that the records of Southeast Bank did

not contain the names or addresses of any of the payees or subsequent holders of

the cashier’s checks. However, relying on Lepelletier v. FDIC, 164 F.3d 37 (D.C.

Cir. 1999), he contends that First Union failed to show that the FDIC made

diligent efforts to ascertain the identity and addresses of the payees or holders of

the checks. Without a showing of such diligent efforts, he argues, publication

7 alone was insufficient to comport with due process requirements. First Union

argues that § 1822(e) does not require mailed notice if the depositor’s last-known

address does not appear in the records of the depository institution in default.

Given that the identities and addresses of the depositors were unknown to the

FDIC, First Union alleges that notice by publication was sufficient. We agree.

Before the claim of a depositor of a failed bank is extinguished, §1822(e)

requires the FDIC to notify the depositor that he must claim the deposit. Prior to

the 1993 amendment, § 1822(e) stated, in relevant part,

[if], after the Corporation shall have given at least three months’ notice to the depositor by mailing a copy thereof to his last-known address appearing on the records of the depository institution in default, any depositor in the depository institution in default shall fail to claim his insured deposit . . . within eighteen months after the appointment of the receiver for the depository institution in default . . . all rights of the depositor . . . against the new bank . . . with respect to the transferred deposit, shall be barred . . . .

§ 1822(e) (emphasis added). By its plain terms, § 1822(e) required notice by mail

only to the extent that a depositor’s last known address appears in the records of

the depository institution in default. In the present case, neither the names nor the

addresses of the holders of the cashier’s checks appeared in Southeast Bank’s

files. We conclude that Lepelletier, the case upon which Acevedo relies, is

8 unpersuasive because it does not address the precise issue of notification when the

identity and address of a claimant is unknown.

Moreover, even if First Union was required to go beyond Southeast Bank’s

records to search for the depositor’s address, without at least a record of the name

of the depositor, it would be impossible to locate him. Under these circumstances,

with no information in the bank’s records to locate the depositor, even the most

diligent search efforts would prove futile. Because the records of Southeast Bank

contained neither the name nor the address of any depositor associated with

Acevedo’s checks, we conclude that the FDIC was neither able nor required to

mail notice under § 1822(e).

We turn now to whether notice by publication satisfied due process

requirements. The Supreme Court has stated that the precise form of notice

required by the Due Process Clause will vary, depending upon the circumstances

and conditions of each case. Walker v. City of Hutchinson, Kansas, 352 U.S. 112,

115, 77 S. Ct. 200, 202 (1956). As the district court correctly observed, notice by

mail is required only if a claimant’s identity is known or reasonably ascertainable.

See Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490-91, 108 S. Ct.

1340, 1347-48 (1988). However, “[f]or creditors who are not ‘reasonably

9 ascertainable,’ publication notice can suffice.” Id. at 490, 108 S. Ct. at 1347. This

has long been recognized as the law:

This Court has not hesitated to approve of resort to publication . . . where it is not reasonably possible or practicable to give more adequate warning. Thus[,] it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317, 70 S. Ct. 652,

658 (1950); see also Jones v. Flowers, __ U.S. __, 126 S. Ct. 1708, 1720 (2006)

(recognizing that notice by publication is adequate when it is not reasonably

possible or practicable to give more adequate warning). Because it is undisputed

that the FDIC could not readily ascertain the identities and addresses of the named

payees or subsequent holders of the checks, we conclude that the FDIC’s

published notices were sufficient to comport with due process requirements.

Therefore, § 1822(e) bars Acevedo’s claim against First Union for refusal to honor

the cashier’s checks.4

IV. CONCLUSION

4 Alternatively, First Union urges this court to affirm the district court’s entry of summary judgment because it contends that Acevedo’s claim is barred by 12 U.S.C. § 1822(c). Because we affirm the judgment of the district court on the above-stated grounds, we need not address § 1822(c).

10 For the foregoing reasons, we hold that the FDIC was neither able nor

required to mail notice pursuant to § 1822(e) and notice by publication was

sufficient. Accordingly, we affirm the district court’s grant of summary judgment

in favor of First Union.

AFFIRMED.