Douglas County v. Hamilton State Bank, 340 Ga. App. 801

Douglas County sought payment on performance and maintenance bonds originally issued by Douglas County Bank to secure subdivision work by developers Anneewakee Falls, LLC and Windermere Development, Inc.
The Georgia Department of Banking and Finance closed Douglas County Bank on April 26, 2013, appointing the FDIC receiver; Hamilton State Bank acquired the failed bank's assets and liabilities under a Purchase and Assumption Agreement (P&A) and received loss-sharing payments from the FDIC.
The County demanded payment from Hamilton after the transfer; Hamilton denied liability, asserting some bonds had expired pre-transfer and that certain obligations were not Hamilton liabilities.
Hamilton moved to dismiss for lack of subject matter jurisdiction under FIRREA for failure to exhaust FDIC administrative remedies (12 U.S.C. § 1821(d)(13)(D)); the trial court dismissed, and the County appealed.
The Court of Appeals held the performance bonds are liabilities (not assets) but nevertheless concluded the County’s claims related to acts/omissions of the failed bank and therefore were subject to FIRREA’s exhaustion requirement; because the County did not exhaust, the court affirmed dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the performance bonds "assets" of the failed bank subject to §1821(d)(13)(D)(i)?	County: bonds enforceable against successor; not covered as assets.	Hamilton: bonds were transferred and part of the transaction assets.	Bonds are liabilities, not assets; §1821(d)(13)(D)(i) inapplicable.
Do claims against Hamilton require exhaustion under FIRREA §1821(d)(13)(D)(ii)?	County: claims are against successor for post-transfer failure to pay; exhaustion not required.	Hamilton: claims arise from acts/omissions of failed bank and fall within FIRREA exhaustion.	Claims relate to pre-receivership acts/omissions of failed bank and are subject to §1821(d)(13)(D)(ii); exhaustion required.
Does an express assumption of liabilities in the P&A exempt successor from exhaustion requirement?	County: P&A expressly assumed bonds; successor assumption negates need to exhaust with FDIC.	Hamilton: §1821(d)(13)(D)(ii) is broad and contains no exception for assumed liabilities.	Court: despite express assumption in P&A, statute’s plain language requires exhaustion; no judicially-created exception.
Did FDIC’s prior statements to County (directing County to contact Hamilton) waive exhaustion?	County: FDIC’s guidance indicated exhaustion unnecessary.	Hamilton: statutory exhaustion cannot be waived by FDIC statements.	Court did not reach waiver as dispositive; held exhaustion nonetheless required and failure to exhaust deprived jurisdiction.

Bobick v. Community & Southern Bank, 321 Ga. App. 855 (Ga. Ct. App.) (FIRREA exhaustion divests courts of jurisdiction if administrative remedies not exhausted)
Murphy v. Federal Deposit Ins. Corp., 38 F.3d 1490 (9th Cir. 1994) (standby letters of credit are contingent liabilities, not assets)
Arbest Constr. Co. v. First Nat. Bank & Trust Co., 777 F.2d 581 (10th Cir. 1985) (standby letters of credit analogous to surety/performance bonds)
Caires v. JPMorgan Chase Bank, 745 F. Supp. 2d 40 (D. Conn. 2010) (court looks to P&A language to determine whether successor assumed particular liabilities)
Olde Towne Tyrone, LLC v. Multibank 2009-1 CRE Venture, LLC, 326 Ga. App. 322 (Ga. Ct. App.) (discussing FIRREA administrative review process)
Gravitt v. Bank of the Ozarks, 326 Ga. App. 461 (Ga. Ct. App.) (FIRREA exhaustion applies to claims based on acts/omissions of failed bank)