This mаtter is now before the court upon three separate motions for summary judgment. The plaintiff, Federal Deposit Insurance Corporation, in its corporate capacity (“Corporate FDIC”), seeks judgment as to liability on Count V of its Amended Complaint against defendant Bob Alexander, and on Count VI against defendant William A. Jenkins, on the basis of these defendants’ alleged unconditional, unlimited guarantees of $9,050,106.59 worth of indebtedness of an Oklahoma corporation, J.P. Exploration, Inc. (“J.P. Exploration”). Bob Alexander has himself filed a motion for summary judgment in his favor on Corporate FDIC’s claims against him. Lastly, the third-party dеfendant Federal Deposit Insurance Corporation, as Receiver of Penn Square Bank, N.A. (“Receiver FDIC”), 1 moves for summary judgment against Alexander on his third-party complaint which seeks to hold Receiver FDIC accountable for alleged wrongdoing on the part of either the now defunct Penn Square Bank or Receiver FDIC itself in connection with the same guarantees used by Corporate FDIC as the basis for its claims against Alexander.
*151
The court recognizes from the outset that Corporate FDIC and Receiver FDIC are separate and distinct legal entities. The possibility that FDIC may act simultaneously in a dual capacity under its governing statutes was recognized as early as 1961 in
Freeling v. Sebring,
In the present case the difference in functions is much easier to perceive than in Gunter since Corporate FDIC did not acquire the notes and guarantees underlying the suit directly from Receiver FDIC but rather from Continental Illinois National Bank and Trust Company of Chicago (“Continental”) which had originally participated in the loans made by Penn Square Bank, N.A. (“Penn Square”). After Penn Square was declared insolvent, Receiver FDIC agreed to transfer all of the defunct bank’s right, title and interest in the loans to Continental on July 28, 1983. Thereafter on August 3, 1983, Continental commenced this suit, though Alexander and Jenkins were not joined as defendants until the filing of an amended complaint on March 19, 1984. When Continental itself subsequently became unstable, the subject loans were purchased by Corporate FDIC on September 26, 1984, as part of the government’s corrective action or “bailout” to protect the national banking system from the possible collapse of that bank. Based on this last transfer of interest, this court, on April 8, 1985, granted Continental’s Motion for Substitution of Party-Plaintiff pursuant to F.R.Civ.P. 25(c), and since that date Corporate FDIC alone has been the plaintiff in this cause. Receiver FDIC did not become a party to the action until April 29, 1985, when Alexander filed his third-party complaint.
This third-party complaint must be dismissed outright because it fails to allege facts supporting this court’s jurisdiction. The pleading, which asserts several claims sounding in tort against Receiver FDIC, states that this court has jurisdiction under 12 U.S.C. § 1819 which allows FDIC to “sue and be sued” and grants United States courts original jurisdiction of “[a]ll suits of a civil nature at common law or in equity to which [FDIC] ... shall be a party____” The FDIC is, however, a federal agency within the meaning of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671
et seq.,
and Alexander’s action, therefore, must proceed, if at all, directly against the United States in conformity with the requirements of the FTCA.
Freeling v. Federal Deposit Ins. Corp.,
*152
Turning to the remaining motions, the entry of summary judgment is appropriate only when “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 materiаl fact and that the moving party is entitled to a judgment as a matter of law.” F.R.Civ.P. 56(c). “In determining whether summary judgment is proper, a court ordinarily must look at the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party.”
Harlow v. Fitzgerald,
In 1980, J.P. Exploration was incorporated. Charles E. Carter, R.J. Pinder, 2 Bob Alexander and William A. Jenkins were named as directors of the corporation which was intended to operate as an oil and gas drilling company. Prior to the incorporation of J.P. Exploration, Alexander had already formed an oil and gas operating company, Alexander Energy Company. Because Pinder wanted to establish ties to Alexander Energy as a source of potential business for the new drilling company, Alexander agreed to participate in J.P. Exploration to the extent of а 10 percent shareholder.
In October of 1980, the four directors of J.P. Exploration met in Pinder’s office in Oklahoma City to discuss corporate business, including the acquisition of additional drilling rigs. Alexander opposed the proposed acquisitions and stated that he was unwilling to finance any rigs or lend his personal credit to the financing of rigs. He did, however, agree to guarantee 10 percent of a $500,000 line of credit from Penn Square and signed a blank form of guaranty which was undated, did not state that it was furnished to guarantee debts of J.P. Exploration and did not bear on its face any express limitation of the amount of liability. Aсcording to Alexander, he orally advised Pinder that the guaranty should be completed to provide that Alexander’s liability was limited to 10 percent of the $500,000 working capital line of credit, or $50,000.
The guaranty Alexander signed was delivered to Penn Square and shortly after the October, 1980, meeting Alexander called William G.P. Patterson, a loan officer at Penn Square, and confirmed with him that the guaranty was limited to 10 percent of a $500,000 working capital line of credit. Patterson also agreed to send Alexander a copy of the guaranty, but failed to do so.
Alexander never received any dividends or other financial benefits from J.P. Exploration and, in the late summer of 1981, Alexander resigned his position as director of the company and surrendered his stock in the company upon the advice of counsel in order to avoid potential conflicts of interest with Alexander Energy Corporation, which was going public. Alexander sent Patterson a copy of his letter of resignation to Pinder, dated July 27, 1981, and notified Patterson by telephone of his resignation and surrender of stock. Alexander asked Patterson that he be released and discharged from all existing and future liability under his guaranty and Patterson orally agreed, assuring Alexandеr that he was never liable for any J.P. Exploration debt anyway, that Penn Square had never relied on the guaranty in making loans to J.P. Exploration, and that the guaranty should *153 not be in any of Penn Square’s loan files. Alexander did not offer or give any consideration for this release.'
Alexander subsequently believed his guaranty would be destroyed, but Patterson instead kept it, still blank in his desk drawer, until Penn Square was declared insolvent. The document was then filled in by an employee of either Penn Square or Receiver FDIC in a manner not in accord with Alexander’s original instructions. The document was dated March 31, 1981, and in the blank after the printed sеntence which read: “It is understood that the amount of credit extended by or liability incurred to you is limited to:”, in place of a limitation to 10 percent of $500,000, the word “unlimited” was typed. Alexander was not aware until this suit commenced of any of the loans made by Penn Square to J.P. Exploration which are now sued upon by Corporate FDIC. 3
The Alexander guaranty is not listed on some of Penn Square’s internal paperwork with respect to these loans although it is listed on the commercial loan worksheets for notes Nos. 26994 and 26993. A deposition of Patterson attached to one of FDIC’s briefs indicates that Penn Square loan officers did not always list all guaranties on loan memos and applications. Reference to the guaranty, along with a financial statement for Alexander, does appear in the minutes of the May 27, 1981, meeting of Continental’s loan committee (credit policy committee) which discuss Continental’s participation in Penn Square loans to J.P. Exploration; however, a subsequent Continental memorandum dated March 30, 1982, does not list Alexander as a guarantor of other loans.
Corporate FDIC concedes that the original of Alexander’s guaranty cannot now be found. However, the copy Corрorate FDIC received through Continental from Receiver FDIC bears on its face a stamp indicating that the original existed and was included among documents subpoened when a grand jury of the Western District of Oklahoma investigated matters concerning Penn Square after that bank closed.
Corporate FDIC premises William A. Jenkins’ liability for the notes in question upon two separate guaranties. One, dated October 7, 1980, has “(UNLIMITED)” typed in the space provided for limitations. The other, dated September 25,1981, states that Jenkins’ liability is limited to $250,000. Jenkins denies that he would have signed an unlimited guaranty for J.P. Exploration but concedes that he may have signed a blank guaranty at the October, 1980, meeting with Alexander, Pinder and Carter, and further admits that Patterson already held blank guaranties signed by Jenkins at that date. The signatures on the guaranties held by Corporate FDIC are authentic, but the documents have been filled in contrary to Jenkins’ instructions.
Jenkins had a falling out with Pinder by the fall of 1981 and did not sign or authorize the $250,000 guaranty on September 25 of that year as the document indicates. Jenkins did not, however, inform Patterson that he was withdrawing from J.P. Exploration until he talked with Patterson in late October or November and advised him that his (Jenkins’) attorneys had told him to sever his relationship with any petroleum service companies. Patterson at that time tried to persuade Jenkins to stay with J.P. Exploration because he thought it would be very profitable. Subsequently, in late January or February of 1982 Jenkins met with Patterson in Oklahoma City to discuss his personal financial dealings with Penn Square. During the course of that meeting, the matter of the J.P. Exploration *154 guaranty came up again, and Jenkins told Patterson that he wanted out of any obligation or involvement with J.P. Exploration. Patterson replied: “Don’t worry, I’ll take care of it.” There were no witnesses to this conversation, however, and Jenkins did not demand the physical rеturn of his guaranty. Jenkins formally notified the other officers and directors of J.P. Exploration of his decision to resign as officer and director of the company by a letter dated March 10, 1982.
Thereafter in May of 1982, Jenkins was again at Penn Square on business when he encountered Janelle Cates, another bank employee who worked with Patterson. Cates asked Jenkins if he was aware that Pinder was planning to sell J.P. Exploration and that he, Jenkins, was still on the guaranty. Jenkins acknowledged the pending merger but strongly denied being on the guaranty and told Cates that Patterson had assured him he was completely out of all business сonnected with J.P. Exploration. Immediately afterwards, Jenkins sent a letter to Patterson, with a copy to Cates, referring to the earlier conversation with Patterson and recounting Jenkins’ understanding that Patterson had granted Jenkins a release from all his financial obligations connected with J.P. Exploration. Jenkins also advised Patterson that he had learned that Pinder obtained sizeable loans for J.P. Exploration without Jenkins’ knowledge or approval. Neither Patterson nor Cates ever acknowledged this letter.
Having thus given Alexander and Jenkins the full benefit of the doubt with respect to the facts they allege, the court must now conclude that the only
material
fact in the lot is that both of these defendants admit signing the guaranties Corporate FDIC now sues upon. The immateriality of the remainder of the facts recounted above stems from the unique status accorded the FDIC by Congress and recognized by the courts, beginning with the landmark case of
D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp.,
No agreement which tends to diminish or defeat the right, title or interest of [FDIC] in any asset acquired by it under this section either as security for a loan or by purchase, shall be valid against [FDIC] unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bаnk, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.
This language is very clear and straightforward and leaves no room for doubting that the guaranties signed by the defendants in this case are enforceable in full and cannot be defeated by any evidence of oral conversations that defendants may have had with Pinder or Patterson or by letters signed only by the defendants but not exеcuted by Penn Square, approved by its loan committee and made an official record of that bank. Not one of the cases cited by de *155 fendants in their briefs supports their arguments to the contrary.
Defendants themselves cite the case of
Federal Deposit Ins. Corp. v. Powers,
Alexander also cites
In Re Longhorn Securities Litigation,
Alexander also attempts to conjure a defense of want of consideration out of Patterson’s comment that Alexander’s guaranty had never been used by Penn Square. The gist of the argument, which is unsupported by citation of any authority other than the very general language of 15 Okla. Stat. § 323 (1981), 6 is that Penn Square did *156 not rely on the guaranty in extending credit to J.P. Exploration, and the guaranty remained in blank form until after the loans were made, so the guaranty fails for want of a distinct supporting consideration. This reasoning presupposes a reading of the Oklahoma statute's language referring to the time when “a guaranty is entered into” to mean when “a guaranty is completed in all respects.”
The court is inclined instead to adopt a more natural understanding and hold that Alexander entered into the guaranty when
he
signed it, not when someone else filled in the remaining blanks. This is the understanding demanded by the public policy of protecting thе FDIC behind § 1823(e). At the moment Alexander signed the guaranty in blank, he “lent himself to a transaction which [was] likely to mislead banking authorities.”
Federal Deposit Ins. Corp. v. Investors Associates X.,
Defendants’ appeal to equity is also inappropriate. Section 1823(e) does not grant this court discretion to balance the equities in determining whether an oral agreement tending to diminish FDIC’s interest in purchased bank assets may be enforced. Defendants are in any event presumed to know the legal consequеnces of their actions and that a secret agreement limiting the liability created by a guaranty signed in blank may “conceal the truth from the vigilant eyes of the bank examiners”
D’Oench,
Defendants' attempt to read
Gunter v. Hutcheson,
The FDIC has a complete defense to state and common law fraud claims on a note acquired by the FDIC in the execution of a purchase and assumption trans *157 action, for value, in good faith, and without actual knowledge of the fraud at the time the FDIC entered into the purchase and assumption agreement.
The defendants’ attempt to distinguish this case from
Federal Deposit Ins. Corp. v. Investors Associate X.,
Alеxander and Jenkins do not assert any simultaneous, fraudulent agreement that they would not be held liable on their respective guaranties. Nor do the material alteration defenses of Alexander and Jenkins originate from a secret agreement or transaction, but rather from the subsequent, unilateral, and fraudulent conduct of Penn Square or the FDIC as receiver of Penn Square (the “Receiver”). The guaranty documents held by the FDIC in this case appear as they do solely as a result of the subsequent wrongful acts of Penn Square or the Receiver.
These statements are simply false given the defendants’ own аccount of the facts of this case. If every allegation of an oral, unrecorded agreement with Pinder or Patterson was deleted from the defendants’ statement of facts, one would have to conclude that they have indeed alleged nothing at all in opposition to Corporate FDIC’s suit on their guaranties. Defendants’ own briefs repeatedly argue that statements made by Patterson constituted agreements binding on Penn Square. Although defendants’ attempt to reconstrue their own allegations to focus on alleged “subsequent, unilateral, and fraudulent conduct of Penn Square or” Receiver FDIC, it is оbvious that the only possible basis for finding such misconduct would be the oral agreements regarding the completion of the guaranties which defendants allege Penn Square or Receiver FDIC violated. See Federal Deposit Ins. Corp. v. Powers, discussed supra. This case is solidly within the scope of the holding in Investors Associates X. where the defendant Turner alleged that a bank’s chief executive officer had filled in two promissory notes signed in blank by Turner in a manner that made Turner liable for $140,000 more than the $750,000 the bank officer had promised.
Perhaps defendants are arguing that they did not intend or anticipate that they were committing fraud upon anyone when they signed their blank guaranties. However,
Investors Associates X.
clearly endorsed the
D’Oench
court’s statements to the effect that fraudulent intent was not relevant to its holding and held that “the only relevant inquiry in determining if a maker of a note is estopped from asserting a defense under
D’Oench
is whether he lent himself to a transaction which is likely to mislead banking authorities.”
Lastly, defendants would in fact be well advised to pay special attention to the ■Tenth Circuit opinion in
Van Laanen,
*158
where an attempt to argue the inapplicability of the doctrine of
D’Oench
in § 1823(e) was found to be “legally frivolous” prompting the court to assess the appellant double the costs of the appeal and $500 in attorney’s fees.
An appropriate judgment will enter.
JUDGMENT AND ORDER
In accordance with the memorandum opinion filed herein this day,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiff, Federal Deposit Insurance Corporation, in its corporate capacity, a corporate agency of the United States, have judgment as to liability on its complaint against the defendants Bob Alexander and William A. Jenkins.
IT IS FURTHER ORDERED that the motion for summary judgment filed by the defendant Bob Alexander against the plaintiff Federal Deposit Insurance Corporation, in its corporate capacity, a corporate agency of the United States, is DENIED.
IT IS FURTHER ORDERED that the third-party complaint of Bob Alexander against the Federal Deposit Insurance Corporation, as Receiver of Penn Square Bank, N.A. be dismissed for lack of jurisdiction of the subject matter.
IT IS FURTHER ORDERED that this matter is set for hearing on the 15th day of January, 1986, in the Fifth Floor Courtroom No. 5409 at 10:00 a.m. for a determination of the actual amounts due under the notes and guaranties in question including principal, interest and costs of collection, including attorneys’ fees.
IT IS FURTHER ORDERED that the plaintiff Federal Deposit Insurance Corporation, in its corporate capacity, a corporate agency of the United States, appear and show cause on the 15th day of January, 1986, in the Fifth Floor Courtroom No. 5409 at 10:00 a.m. why its complaint against Charles E. Carter should not be dismissed for failure to make service of the summons and complaint within the 120 day period provided by Federal Rule of Civil Procedure 4(j).
STIPULATION
The plaintiff, Federal Deposit Insurance Corporation, in its corporate capacity, a corрorate agency of the United States, and the defendants, Bob Alexander and William A. Jenkins, by and through their respective attorneys, for purposes of the hearing scheduled herein on January 15, 1986, hereby agree and stipulate as follows:
1. The principal amount due under the notes and guaranties in question as of January 15, 1986 is $7,139,025.22.
2. The accumulated interest due and unpaid under the notes and guaranties in question as of January 15, 1986 is $3,083,-605.96.
3. The total for principal and interest due as of January 15, 1986 is $10,222,-631.18.
4. Per diem interest accrues at the rate of $2,249.26 per day from January 15, 1986 until paid.
5. The parties stipulate and agree that the only matter lеft for the Court to rule on at the hearing on January 15, 1986 is the question of attorney’s fees.
6. The parties further agree and stipulate that the Journal Entry of Judgment against defendant Bob Alexander, when signed by the Court, once the Court has determined attorneys’ fees, may be held by the attorneys for plaintiff and not filed, if ever, until such time as the parties conclude that they cannot reach an amicable settlement of the disputes involved in this action.
7. The parties hereby request that the judgment to be entered with respect to liability and damages be certified by the *159 Court as final and appealable pursuant to Rule 54(b) оf the Federal Rules of Civil Procedure.
FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, a corporate agency of the United States
By: /s/ Jimmy Goodman
JIMMY GOODMAN
CROWE & DUNLEVY
1800 Mid-America Tower
20 North Broadway
Oklahoma City, OK 73102
(405) 235-7700
One of Its Attorneys of Record
BOB ALEXANDER and
WILLIAM A. JENKINS.
By: /s/ Michael E. Joseph
MICHAEL E. JOSEPH
W. CHRIS COLEMAN
Tenth Floor, Two Leadership Square
Oklahoma City, OK 73102
(405) 235-9621
Their Attorneys of Record
Notes
. In this opinion "FDIC” standing alone without "Corporate” or "Receiver" preceding constitutes a reference to the Federal Deposit Insurance Corporation generally, and not specifically to either of its capacities as party to this action.
. R.J. Pinder and Charles E. Carter, along with TWT Exploration Company, Inc., were also named as defendants by the amended complaint in this action. TWT Exploration Company, Inc., has since filed for protectiоn under Chapter 11 of the Bankruptcy Code, thereby automatically staying this action against it. Default judgment was entered against Pinder in this case on February 1, 1985. Service has not been obtained on Carter.
. These loans are evidenced by the following notes:
(1) No. 26994 for $3,330,000 dated March 31, 1981;
(2) No. 26993 for $2,800,000 dated March 31, 1981;
(3) No. 27659 for $1,500,000 dated May 29, 1981;
(4) No. 28960 for $500,000 dated September 25, 1981.
The notes all provide for interest at a floating rate P/2 percent above Penn Square prime and for payment of reasonable costs of collection, including an attorney’s fee of 15 percent of all sums due upon default.
.
Howell v. Continental Credit Corp.,
. It may be noted that in the
In Re Longhorn Securities Litigation
opinion the court construed
D’Oench
narrowly,
. Where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms, with that obligation, a part of the consideration to him, no other consideration need exist. In all other cases there must be a *156 consideration distinct from that of the original obligation.
. The essence of consideration is, in any event, legal detriment, not reliance. See J. Calamari & J, Perillo, Contracts § 4-1 (1977). By signing the guaranty Alexander promised to do something he was not legally obligated to do, and that promise was itself consideration. Further, it is not disputed that Alexander received legal consideration for his promise. The face of the guaranty in question provides that it is “for the purpose of enabling J.P. Exploration, Inc., to obtain credit or other financial accommodations from” Penn Square, and both Alexander and Jenkins concede in their briefs that they did in fact give their guaranties in order to induce Penn Square to extend credit to J.P. Exploration, albeit not in the amounts actually given. There is no question that the bargained for credit was actually extended.