Federal Deposit Insurance Corporation v. Pritam Singh

Among cocaine. by posed to distribute predisposition Reed’s lack establish Reed dis- things, the record shows that that an indi- unlikelihood emphasizing the quality the prior knowledge about probation played for a who was on vidual sold in the local area. predis- price of cocaine been have cocaine offense would Reed’s oth- agent told the BIDE the risk of fur- Reed to posed expose to himself his co- satisfied with dealing in cocaine.4 er customers were punishment by ther was conclude that evidence caine. We argues ap on further Appellant find jury to than sufficient for more deny peal court erred that the district entrapped. Reed was not acquittal on judgment of ing his motion for reviewing entrapment. the basis of Finally, appellant argues that the stan acquittal, denial of a his incorporating erred in not district court whether, viewing after dard of review is entrapment on proposed jury instruction to light most favorable evidence the court. into the instructions delivered of fact prosecution, any rational trier give particu a refusal to “The trial court’s to elements could have found essential error instruction constitutes reversible lar beyond a proven (1) reasonable have been only requested if the instruction was Almonte, 952 law, (2) v. doubt. United States a of substantive correct as matter (1st Cir.1991). The affirmative F.2d substantially incorporated into not entrapment has two related ele rendered, (3) integral defense of to an charge as (1) government inducement of the ments: important point the ease.” United crime, predisposition on lack of McGill, 953 F.2d Cir. v. States part the defendant. United States case, request 1992). was In this Reed’s (1st Cir.1988), Murphy, v. charge substantially incorporated into the denied, 109 S.Ct. cert. U.S. can see no error. given (1989). Entrapment 103 L.Ed.2d Affirmed. jury to decide. defense of fact for Pratt, United States — U.S.-, (1st Cir.1990), cert. (1991). 112 L.Ed.2d 673 has he

Once the defendant established that crime, induced commit the

was Pratt, 987-88, government F.2d at DEPOSIT INSURANCE FEDERAL prove beyond a reasonable doubt that must Plaintiff, CORPORATION, predisposed to defendant was commit Appellee, — States, crime. U.S. Jacobson United -, 118 L.Ed.2d 174 S.Ct. Defendants, SINGH, al., Pritam et Appellants. jury reasonably could have 92-1344. No. was induced found that Reed not government readily to sell cocaine. He Appeals, United States Court agreed the motel to meet a to come to First Circuit. buyer purported cocaine and he made the July accepted Heard transfer of cocaine cash There is no evidence without hesitation. 7, 1992. Decided Oct. prodded him to make government that the ample second sale. There also was support finding, beyond a jury evidence to doubt, predis- that Reed reasonable give fail-

4. We reject appellant’s such an instruction. The contention that the court give given an limiting ure of the trial court such instruction court should have in- district sponte jury regarding prior reversible error. United States convic- sua struction to Cruz, requested v. De La tion evidence. Defense counsel never Stouder, whom John S. Elizabeth G. Whitman, Troubh, Allen J. Richardson & Jordan, Sears, Reef, Hrycay, Hrycay & Portland, Me., brief, defen- were on dants, appellants. Cox, Mary Ann E.

Thomas A. with whom Babcock, Rousseau and Friedman & Port- land, Me., brief, plaintiff, ap- were on pellee. STAHL,

Before Circuit SELYA SKINNER,* Judges, Judge. District * Massachusetts, sitting desig- Of the District of nation. “in- behalf and on Bandon’s four Judge.

SELYA, Circuit an assurance dividually.” It contained granted case, court the district In this solely to its “look Bank would in favor guaranty summary judgment on the of [cjollateral satisfaction [obli- for Corpora Insurance Deposit Federal any docu- or under gations of Borrower appeal. We (FDIC).1 guarantors The tion security undertaking given ments or because, aas judgment below affirm the of the assets personal and not to herefor of free law, guaranty was the of matter Limited.” or At any partner, General was entitled plaintiff ambiguity and exe- time, jointly and Patriot same Bandon See, e.g., Garside summary enforcement. (the emendatory instrument cuted an Inc., Drug, v. Osco security Amendment) tied the instru- a Cir.1990) may affirm (appellate court them, Note, reaffirmed ments into the any inde on judgment summary grant of As- Mortgage, “The and stated that: in the reflected ground pendently sufficient Financing Guaranty, and the signment, the record). in full force shall remain Statement thereof are all the effect terms and I. BACKGROUND confirmed, by par- hereby ratified 23, 1985, Associ- Bandon On December its Although Bandon and ties hereto.” ates, partnership, executed general counsel, represented principals were Note) (the promissory note delivered of the chief architects lawyers were bank’s $1,050,000 to of principal amount in the the documents. collateral, Bandon Bank, As N.A. Patriot thereafter, merged Patriot Bank it Soon mortgage property on gave bank (BNE). On England New Bank and the with of the 1985 Note in Both held Maine. Comptroller of January signed on Bandon’s mortgage deed were BNE was insol- Currency Bandon’s determined appellants as four behalf as receiver. the FDIC appointed also vent and quartet The partners. general sole (NBNE) England date, of New The delivered, New Bank on the same executed chartered, designat- created, duly obli- was guaranty of Bandon’s an unconditional rights lender’s bridge bank. The of ed as (the By the terms Guaranty). gations Patriot/Bandon transac- and sev- material document, “jointly signers rapid suc- relatively assigned, all tions were guarantee^]” unconditionally erally ... and, cession, eventu- Patriot BNE Patriot Bandon Associates to of liabilities arising, ally, to NBNE. existing hereafter or Bank “now arise or what regardless howof meet Meanwhile, unable to Bandon was they may evi- be agreement or instruments obligations under payment its Guaranty did not refer The denced....” 13, 1991, NBNE com- February On Note. Note. specifically to the 1985 mort- to foreclose the a civil action menced for States District Court gage in the 6, 1987, into a United entered April Bandon On simultaneously It of Maine. the District (the Agreement) with written appellants, against the brought an action the terms to revise Patriot Bank individuals, of them alleging each sub- arrangement involved 1985 loan. Guaranty for Ban- Note) liable under stituting (the note was a new pend- the cases were While same don’s default. The 1987 old note. and, as NBNE ing, the FDIC dissolved amount, for a inter- provided fixed face but plaintiff in receiver, schedule, the substitute and a became rate, an est amortization actions.2 signed by penalty. It was prepayment turn, jurisdiction appellate statute, under party By is a have cases in the FDIC 1. (1988). U.S.C. ordinarily the laws to “arise under" deemed 12 U.S.C. United States. granted the court The district thereafter Hence, 1990). 1819(b)(2)(A)(Supp. the dis- II summary in the FDIC's motion jurisdic- question possessed federal trict court appealed has foreclosure action. Bandon pursuant In to 28 tion U.S.C. it. not dwell We need from that order. fact, time, granted summary judgment al the district court necessar- guaranty dispositive ily motion foreclosed in such a situation. FDIC’s See Al- D’Oench, action, doc- invoking len, Duhme 967 F.2d at 698. In some circum- FDIC, D’Oench, trine, Duhme & Co. stances, may words a contract “[t]he 315 U.S. people so clear themselves that reasonable (1942), large- and the statute that L.Ed. 956 meaning.” could not differ over their Bos- This doctrine de- ly codifies the doctrine.3 Secretary ton Five Cents Sav. Bank v. conditions under which the limited fines HUD, Dep’t may validly diminish or defeat agreements here, long-stand- This is such an instance: acquires. in an asset it the FDIC’s interest ing principles of Massachusetts contract compel us conclude that the non- law A SKETCH II. THUMBNAIL provision recourse in the 1987 neither Appellants theorize that the non-recourse trumps plain language Guaranty the provision in the 1987 Note conflicts with ambiguity nor creates an in the contract the and the reaffirmation documents. that, Guaranty; applicable and under the law, in should be resolved favor the conflict III. ANALYSIS view, judg- Note. In their of the 1987 begin by reviewing applicable We state or, should reversed alterna- ment below be law, apply explain then how law. We that tively, and the case remanded vacated supportive federal law is of the result that non-re- regarding trial the effect of the reach, appellants’ remain- address provision.4 course ing counter-arguments. by must measure yardstick which we is cogency contentions A. “Summary judgment ap not in doubt. gen propriate the record reflects ‘no when The instruments at issue here state any material fact and ... uine issue as governed by, they are to and con be moving party is entitled to with, in of Mas strued accordance the law ” matter of law.’ Rivera-Muriente law, Massachusetts sachusetts. Under 959 F.2d Cir. Agosto-Alicea, writings single several evidence a 1992) 56(c)). When, (quoting Fed.R.Civ.P. parts of a comprise contract or constituent here, up the district court has cranked transaction, single they togeth read will be machinery disposed of Rule of a Florence, Indus., Inc. v. er. See Chelsea basis, appellate ple case on review 260 N.E.2d Mass. Inc., nary. Adage, See Allen v. 967 F.2d Cosentino, 354 Mass. see also Ucello (1st Cir.1992); Garside, (1968) (holding that the 235 N.E.2d at 48. gathered parties’ intent “must be the contract as a whole Although dispute meaning of fair construction of over the upon any one dispute by special emphasis materi- and not a contract is often a about a mittee, provides pertinent part: approval in in shall reflected 3. The statute committee, the minutes of said board or tends diminish or No been, (4)has continuously, from the time defeat the interest of the asset [FDIC] execution, record of the de- of its an official acquired by it under this section or section pository institution. title, security either as for a loan 1821 of this 1823(e) 1990). (Supp. set 12 U.S.C. II We depository ... or as receiver of insured version, institution, including current forth the shall be valid the [FDIC] amendments, 101-73, Stat. agreement— see Pub.L. No. unless such (1989), (1) were writing, as those amendments is in (2) depository comparatively impact was executed institu- minor and do not any person claiming tion and an adverse in- before us. the case thereunder, including obligor, terest con- argument seemingly Appellants' re- alternative temporaneously acquisition with that, institution, possibility depository flects the if the instruments conflict, ambigu- approved by direct are at least the board of directors not in depository institution or its loan com- ous. to, qua guarantors Owen, appellants erence Corp. v. part”); Chase Commercial lacking. conspicuously 588 N.E.2d Mass.App.Ct. Guaranty and contem- (1992)(construing a hand, language of other On the security agreements poraneous loan sig pikestaff. The plain as a reading them transaction part of one all “unconditionally guarantee[d]” natories together despite the fact hereafter aris existing or “now liabilities package documents document incorporate Nothing ing.” did intended to reference). parties later indicates that its Guaranty or to restrict nullify the a contract of whether question “The Indeed, pains in parties took sweep. of law for the one ambiguous is term is the Guar to reaffirm 1987 Amendment 698; Allen, F.2d at accord judge.” We leaving it in full flower. anty, thus Bank, 768 F.2d at Cents Sav. Boston Five that, Guaranty in by executing the believe Holyoke, 23 Mass. Ins. Co. obligation, and partnership addition Jefferson 4,n. rev. App.Ct. conjunction reaffirming it by thereafter N.E.2d 146 rewrite, in 399 Mass. the loan simply ambiguous (1987). separate A and distinct liability contract in two curred proper disagree about its v. litigants Cf, e.g., Ley Fred T. & Co. capacities. because 488, 19 687, 689 Papago Tribal Util. Mass. N.E.2d interpretation. Sagalyn, 302 See 950, (D.C.Cir.1983), liability of trust FERC, (1939)(upholding personal 955 v. 723 F.2d Auth. guaranty of trust obli 1241, signed also ees who 467 U.S. rt. ce individuals). Rather, as (1984). gations a 3511, L.Ed.2d 820 82 contract, which documents or set of tide, inexorable an effort to stem this contract, is consid comprise the ensemble us to a construction appellants invite infer language ambiguous only ered clause in the express render an that would interpre to different reasonably prone “is nugatory. an invitation Such documents Corp., v. Boise Cascade tations." Fowler law, teeth of flies in the Massachusetts Cir.1991). (1st an Stated 948 F.2d 54 ef- give reasonable directs courts to language which “is way, contract provision of an to each fect nonetheless differing, but susceptible to J.A. Sullivan feasible. wherever See ambiguous.” is plausible, Commonwealth, constructions 397 Mass. Corp. v. Allen, also Fashion F.2d at v. 967 378 McMahon 494 N.E.2d House, Corp., Co., Mass. Inc. v. K Mart Monarch Ins. Life Cir.1989). (1962). of “It is a canon N.E.2d phrase of every word and construction that possible given if to be is an instrument B. rejected to as meaning, and none is rationally any if other course is surplusage unre Notwithstanding appellants’ Hancock, 319 Mass. Tupper v. possible.” effort to overshadow mitting (citation N.E.2d focus on by single-minded omitted). reading of Because provision, we discern non-recourse Note’s documents would render pro non-recourse ambiguity here. The no surplusage— itof and the reaffirmation to the “Obli unequivocally refers vision absence of do so the utter and would Bandon, Borrower,” namely, gations of out- necessity for so drastic an manifest any part “personal assets and to the accept it. come5—we cannot The status (Emphasis supplied.) ner.” Moreover, implicated either law embraces not Massachusetts guarantor obviously “expressio unius est exclusio by the allusion the maxim or by the word “Borrower” Pharmaceuticals, of, ref- alterius.” Chatham Any mention or “any partner.” course, example, doing are, so would obvi- To cite but one business reasons sound 5. There ability ously partnership’s to attract might prospective enhance why want to free a borrower thus, venture, though partners to secure liability partners personal even new capital. existing guarantors. of fresh partners an infusion liable remain by the Co., by state incidence Mass. dictated law Angier Chem. Inc. language; max- unambiguous That it of clear and to an forcibly exceptions applies by spirit, im if not suggested objects of the obligation as to enumerations letter, D’Oench, Duhme doctrine.6 Here, the id. by a See embraced contract. said, appellants’ thesis As basic we have particular Amendment lists number provision non-recourse of the 1987 that the security instruments in the alterations to defenestrate implies an intent mentioning a nullification or once without that nullification Guaranty. We think under assumed of the liabilities diminution principles ani- implication transgresses the circumstances, the In these Guaranty. D’Oench, doctrine, mating the Duhme provide expressly failure to parties’ statutory variants. in its common law and us no leaves modification designed “help That doctrine Guaranty’s give effect to choice but to accurately speedily determine an attempt to Courts should provisions. Bateman insolvent bank’s value.” party] “accomplish by judicial fiat what [a (1st Cir.1992); FDIC, 970 F.2d contractually.” RCI neglected to achieve Sav. Bank v. accord Commerce Federal Boston Edison Northeast Servs. Div. Cir.1989). (6th FDIC, Co., requires agreements The doctrine provi non-recourse recapitulate, the To diminish or defeat FDIC’s would incurred under limits the liabilities sion acquired it must interest acting part 1987 Note requirements. supra fulfill certain Associates; it does not ners of Bandon as- By making the value of bank note distinct liabilities separate limit the apparent, requirements these readily sets capaci appellants in their by the incurred fulfilling mission. the FDIC its aid “[I]t whole, as a guarantors. Taken ties as officials, important examining that FDIC are ambiguity; the documents is no there documents, they feel the insolvent bank’s plausible construc susceptible only to one purposes, upon rely, valuation can for Hence, suggestion that tion. meaning they what documents bank’s provision to the non-recourse they intended Bateman, F.2d at 928. say.” See, 970 irrelevant. qualify Trust v. Clarendon e.g., Fairfield obligations are assets Cir.1992) (re Dwek, 970 F.2d 994 12 meaning of U.S.C. FDIC within con subrogate unambiguous fusing to an 1823(e). Virginia Cross- See FDIC contempla supposed provision to the tract (8th F.2d 312 Partnership, ings 909 applying Massachusetts parties; of the tion Int’l, Inc., 834 Cir.1990); P.L.M. FDIC v. FPC, law); 529 Appalachian Power Co. v. To allow the 253 F.2d par (D.C.Cir.)(stating that a 348 provision inserted in non-recourse unambigu ty may not “reach outside Guaranty by implica- nullify to seeking to argument contracts for an ous language ap- tion, the non-recourse uncertainty”), 429 U.S. impart cert. separate pears in a document (1976); L.Ed.2d 76 plain its words question and when Co., 4 Mass. Pilgrim Packing Blakeley v. a far more limited suggest surface on the (simi App. principle aim, undercut would lar). assess the be able to

FDIC officials should C. assets from bank’s value of an insolvent depository in- “official enforceability record[s] The continued 1823(e)(4). tenor, only stitution.” U.S.C. according its Guaranty, is, therefore, discussed, concurring previously and it unnec- agree brother While we with our potential essary either modi- further to demonstrate us to that board fication of failed consider approval summary judgment or loan committee ground affirming liability, guarantor we believe opinion. Judge separate rests his Skinner grounds satisfactorily resolved on the the case contrary, perfectly there is a extrinsic evidence exact natural Appellants’ proffer of parties’ ostensible in reading to demonstrate the which reconciles the documents many of the same victim to tentions falls internally and renders them consistent. evidence, not visible considerations. Such Thus, the law of Massachusetts demands face of the docu on the to FDIC officials we harmonize the clauses rather than refer in deter they ments to must imaginary strain to create an conflict be they have ac mining the value of assets provision the non-recourse and the tween D’Oench, not, under the quired, should Guaranty. reaffirmation of the See Truck rationale, permitted to contrib be Duhme Drivers, Local Bhd. v. International of these as covertly to the diminution ute Teamsters, (D.Mass. F.Supp. Bank, Nat. v. Merchants sets. See FDIC 1979) (preferring to clauses read contract (11th Cir.) (noting that if in conflict if such an “correctly applied the district court Sec. interpretation reasonably possible); 1823(e) exclude as irrelevant evi McMahon, (“[A] 186 N.E.2d at 830 contract records of the bank dence not found give is to be construed to a reasonable requirements”), meeting and not the statute’s strict possi if provisions effect to each of its denied, 469 U.S. t. cer S.Ct. ble.”). 83 L.Ed.2d 57 FDIC Co., Servicing Cardinal Oil Well Next, appellants claim that the loan Cir.1988) (5th (refusing con against documents should be construed that did not meet sider external evidence because the lender drafted them. 1823(e)’srequirements).7 But, argument heuristic. this is a mere Documents should construed D. only questioned language, drafter when the additional as- Appellants advance three together with the circumstances surround them suffices to car- severations. None of use, ing cognizable its creates some uncer ry day. meaning. tainty as to intended Merri Baird, Valley mack Nat’l Bank v. First, using prior 3-119 as U.C.C. § (1977); Mass. 363 N.E.2d Ald springboard, noting that Massachu Co., Bay rich v. 186 Mass. State Constr. adopted setts has the Uniform Commercial 72 N.E. see also Shea v. Code, ch. Mass.Gen.Laws.Ann. see Co., 218, 418 Bay State Gas 383 Mass. (West 1990), that, appellants urge since a (1981)(stating N.E.2d that the rule direct contradiction exists the 1987 between “must of construction the drafter former, being Guaranty, Note and the give way primary to the and inflexible rule instrument, negotiable given should be eff that ... contracts are to be construed ... huge: fly ect.8 The in the ointment is so as to ascertain the true intention of completely depen exhortation is (citation omitted). parties”) In the ab “outright upon dent the existence of an ambiguity, gain no sence of nondrafters Note and contradiction” between the 1987 special advantage. Guaranty we none. To the see —and inap- outright is If there is contradiction between [a 7. Reliance extrinsic evidence also propriate light longstanding instrument], common separate writing negotiable and a where, here, law rule that as the contract is $1,000 as where the note is for but the accom- unambiguous, extrinsic evidence as to the mean- $2,000, panying mortgage recites that it is for ing parties should of terms and the intent of may be the note held to stand on its own feet See, e.g., Fairfield, not be considered. Etc. and not to be affected the contradiction. Trust, 994; Oil, Cardinal at 970 F.2d at U.C.C. 3-119 comment 3 While the 955; Tribal, Papago 723 F.2d at Massa- corresponding section of revised Article 3 Elec. Co. v. chusetts Mun. Town Wholesale (adopted after the documents at issue here were Danvers, 411 Mass. 577 N.E.2d drafted) comment, does not retain this (1991); Blakeley, 340 N.E.2d at 514. (1990), prior U.C.C. version still persists language in the Commonwealth. appellants See Mass.Gen. 8. The that most cherish is contained in comment Ann. ch. 3: Laws 3-119. assets, personal argument complete presumably from “at such Appellants’ last original premise. Hav may their time or times as the deem ly contradicts [lender] unsuccessfully maintained that ing itself to be insecure.” These dissimilarities Guaranty are irreconcil 1987 Note and adequately Guaranty evince that the another, they one ably inconsistent surplusage any stretch of the most ac brief, maintaining, reply gears in their shift imagination. Ligran, tive Inc. v. Med Cf. time, that the two documents the first lawtel, Inc., 86 N.J. 432 A.2d 505- (in duplicative unnecessarily are (1981)(holding although guaranty another). words, with one To consistent surplusage is often when a maker also end, they Levy, cite Seronick v. this signs guarantor, in as certain limited and Mass.App.Ct. rev. situations, may enlarge unusual a maker N.E.2d 797 403 Mass. duration, if scope, liability by not the that, (1988), proposition for the broadcast guarantor).10 signing as a sign the makers of a note where surplusage guarantors, Guaranty IV. CONCLUSION and, hence, appel unenforceable. Because Where, here, go need no further. We the 1987 Note and the signed lants commercial, principals “transaction Guaranty is ex Guaranty, they argue, the counsel, practiced represented by proceed cannot baggage cess clear, reasonably the contract itself it is far it. against them under parties’ wiser for a court to honor the support case fail to such The facts of this imply words than to other and further overgeneralized argument. Because the an promises out of thin air.” Mathewson operates to hold indi- Guaranty Indus., Inc., Corp. v. Allied Marine liabilities vidually responsible for Bandon’s (1st Cir.1987)(applying Mas- the 1987 Note mortgage lender while law). basis, are sachusetts On we personal assets of blocks recourse to fully should not venture satisfied appellants, othér than the partners lender/borrower/guarantor to rewrite Moreover, hardly surplusage. controversy. agreements that underlie this than significantly broader that, written, equally are satisfied We respects.9 Note in certain We agreements unambigu- clear examples. offer two tenor, according to their ous. Construed repayment does not refer to the summary judgment in the warrant specific liability any specific period, time FDIC’s favor. clearly meant to secure but rather was Affirmed. liability running from Bandon to the bank. way, obligation under- Stated another SKINNER, concurring. Judge, District taken under the bounded judgment, in court’s but I concur any spe- by the term of the 1987 Note—or I am unable to note, (2) separately write because that matter. The Guaran- cific that there is Note, obligates accept the court’s conclusion ty, unlike the 1987 collateral, the 1987 Note guarantors additional in fact no conflict between to deliver however, partner prin- respects, as tor from his normal status In other 9. slightly guarantor cipal obligor narrower than the 1987 Note. For ex- so as to make him a true Note, Guaranty, spe- ample, the unlike the 1987 protection anti-defi- of California outside cifically contemplates possible revocation Larson, law); ciency First Interstate Bank v. guarantors. one or more of the (N.D.1991) (distinction be- N.W.2d obligors’ joint liability partners tween sure, 10. To be certain states have laws that liability joint individual their and several deficiency judgments prohibit or limit after way guarantors give must to the force of North policies foreclosure. To enforce the behind Massachusetts, law). anti-deficiency Dakota’s however, statutes, post- these courts have frowned on policy. has no such See Mass.Gen. deficiency judgments against guar- foreclosure (West 1988). Accord- See, Laws Ann. ch. 17B§ e.g., antors who were also makers. West- Barton, ingly, particularly strip reluctant inghouse F.Supp. we are Corp. v. Credit (C.D.Cal.1992) (non-recourse guaranty fide of its intended effect. nature bona guaran- partnership separate of loan to did not meeting. 12 committee U.S.C. my this issue board or view and the Guarantee. 1823(e)(3). ap- an eviden- Absent evidence of such resolved without should not be adopted by The result is unenforceable tiary hearing. proval, route, P.L.M., by a different at against reached court can be FDIC. Prop., F.Supp. Eagle however. FDIC (W.D.Tex.1985)(holding subordination certainty it en- Congress opted spite general in unenforceable certificate recording categorical scheme em- acted the minutes do not authorization because board 1823(e). FDIC, Langley v. in bodied certificate); approve the FDIC specifically 86, 95, 108 S.Ct. 98 L.Ed.2d U.S. Gardner, F.Supp. scope inquiry of a court’s (S.D.Miss.1985)(side agreement not refer- enforceability agreement is of an into directly affirmatively and ac- enced or limited, depends the court’s conclusion unenforceable). knowledged agreement’s compliance or entirely on id. at noncompliance with the statute. See support- The record is devoid evidence 94-95, pro- at The statute or ing appellants’ contention that the board any agreement that “tends to vides that or modi- approved loan committee a release interest of the diminish or defeat guarantors’ liability. At fication of the acquired” as receiver [FDIC] argument, appellants conceded oral FDIC, unless the is invalid no they point could to no document and agreement: ap- requisite demonstrate the affidavit to (2) (1) by the writing, was executed record is not silent on this proval. But the any person depository institution Indeed, reflecting pur- from issue. far thereunder, claiming interest an adverse release, ported the Loan Committee obligor, contemporaneously including the Approval indi- Minutes and the Loan Sheet by the acquisition of the asset understanding: precisely opposite cate institution, (3) approved depository was name, appellants, by the four refer to deposito- by the board of directors More- “guarantors” of the new Note. committee, ry or its loan institution over, the con- the record demonstrates that approval reflected in the shall be guaranties appel- tinuing personal committee, and minutes of said board or significant approving factors in lants were been, continuously, the time has analysis report, attached the loan. A risk execution, of its an official record of the sheet, approval the loan twice mentions depository institution. “strength” appellants’ personal 1823(e). 12 U.S.C.A. § mitigating It is guaranties as risk factors. case, In this the district court concluded personal liability release of clear that no correctly that the 1985 was an authorized. meaning “asset” of the FDIC within the genuine There is no issue of material 1823(e). Virginia Crossings FDIC judgment is entitled to fact and (8th

Partnership, 909 F.2d Cir. join I as a matter of law. therefore 1990); Int'l, FDIC v. P.L.M. affirming of the district Cir.1987). Therefore, in order to court. impair Guaranty, appel defeat or demonstrating lants had burden Agreement purported release require

complied with each of the four 1823(e).

ments Rivera-Ar Cir.1990);

royo,

P.L.M., 834 F.2d at 253. statute, among things, re-

quires that the board or loan commit- approve

tee and that such

approval be reflected the minutes of the

Case Details

Case Name: Federal Deposit Insurance Corporation v. Pritam Singh

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 7, 1992

Citation: 977 F.2d 18

Docket Number: 92-1344

Court Abbreviation: 1st Cir.