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FRANKLIN ASAPH L.P. v. FDIC

April 30, 1992

FRANKLIN ASAPH LIMITED PARTNERSHIP, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.



The opinion of the court was delivered by: GEORGE H. REVERCOMB

 Plaintiff is a commercial real estate developer that was financed by the National Bank of Washington (NBW); bank regulators declared NBW insolvent and subject to Federal Deposit Insurance Corporation receivership on August 10, 1990. The crux of plaintiff's complaint is that, after lending plaintiff $ 10.85 Million beginning in 1987 to build an office building in Old Town Alexandria, Virginia, NBW agreed in the months before entering receivership to an additional loan of $ 650,000, and "this subsequent . . . Loan Increase became part of the Loan," an obligation which "the FDIC-Receiver and/or FDIC have refused to honor." Complaint Para. 9, 27. Plaintiff seeks a variety of relief on account of FDIC's refusal to extend the additional loan amount, including compensatory damages and interest, specific performance and a declaratory determination of no liability on the original loan obligations.

 The FDIC has moved for dismissal of plaintiff's entire eight-count complaint under Rule 12(b)(6), Fed. R. Civ. P., on grounds that 12 U.S.C. 1823(e) and the related federal common law D'Oench, Duhme Doctrine bar plaintiff's action. FDIC argues that this bar operates because plaintiff fails to allege either that NBW made a written acknowledgment or commitment to Asaph to make the loan increase or that NBW ever prepared, finalized or executed documents for the loan.

 The Court has considered the parties' pleadings on FDIC's motion to dismiss and heard oral arguments on April 23, 1992. For the reasons set forth below, the Court grants defendant FDIC's motion to dismiss.

 Rule 12(b)(6) Standard

 Facts

 The complaint, pleadings and oral arguments reveal the following facts that the Court considers pertinent to the bar raised by 12 U.S.C. 1823(e), the related provision 12 U.S.C. 1821(d)(9)(A), and the D'Oench, Duhme Doctrine:

 Plaintiff alleges, and FDIC does not dispute, that NBW made a construction loan for $ 10.2 Million to plaintiff Asaph on December 16, 1987, and that this amount was subsequently increased, sometime prior to June 1990, to $ 10.85 Million. Complaint Para. 8. Plaintiff has not appended to its complaint or opposition any documentation related to these loans; it alleges, however, that "Upon information and belief, the Loan [increase] was in writing, approved by NBW's Board of Directors or its loan committee," that "approval of the Loan was reflected in the minutes of the Board of Director's meeting, and/or the minutes of the loan committee," . . . and that "the Loan was executed by NBW and Franklin Asaph contemporaneously with the approval or acquisition of the loan." Para. 11-13.

 Plaintiff further alleges, at the focus of its complaint, that in June 1990, "Asaph requested and NBW agreed to increase its Loan in an amount equal to $ 650,000 to cover . . . Asaph's projected increased costs for tenant buildout necessary to achieve 100% leaseup." Para. 19. Again, plaintiff provides no documentation related to this increase; rather, it alleges that "Upon information and belief, Franklin Asaph was advised that NBW real estate division review committee approved an increase to the Loan in the amount of $ 650,000. In addition, because the loan was larger than $ 5 Million, NBW's senior level committee considered and approved the increased Loan amount." Para. 20. "Upon information and belief, Franklin Asaph has been told that NBW's formal approval of the loan increase is properly documented in the corporate records of NBW." Para. 21. "NBW retained the law firm of Jones, Day, Reavis & Pogue to prepare the closing documents[,] and closing with respect to the increased Loan amount was scheduled to occur during the week of August 13, 1990." Para. 22 (emphasis added). "On or about August 10, 1990, NBW was declared insolvent and closed by the Office of the Comptroller of the Currency . . . and the FDIC was appointed receiver for NBW." Para. 25-26.

 The FDIC argues that, even assuming the truth of these factual allegations,

 the most that plaintiff alleges is (1) a loan agreement with the National Bank of Washington . . . (2) an unwritten, unexecuted agreement by NBW for additional financing, (3) the failure by NBW to close and fund the loan increase, and (4) FDIC-Receiver's subsequent refusal to close and fund the loan increase after its appointment as receiver for NBW.

 FDIC Reply at 1-2. The Court notes at the outset that it agrees with FDIC, id. at 12, that plaintiff attempts to bootstrap the alleged agreement for additional financing into the prior undisputed loan contracts by drawing the legal conclusion in its opposition to dismissal that "NBW agreed to increase the Loan by $ 650,000 in 1990 which when approved by NBW's loan committee became part of the Loan. (Complaint, Para. 19-21)." Asaph Opposition at 2, 13 (emphasis added). The Court rejects this attempt, first because the complaint alleges no factual basis -- such as a contract or clause obligating NBW to loan more money under certain terms that were fulfilled by Asaph -- for assuming a nexus between the $ 10.85 Million that NBW did loan and the June 1990 agreement to loan another $ 650,000 *fn1" -- and second because the legal conclusion of a preexisting, firm obligation of NBW directly contradicts plaintiff's other (and more plausible) assertion that NBW had not "agreed" until June 1990 to the $ 650,000 loan "increase," which had yet to go to closing as of August 10, 1990, and that a law firm had been retained precisely for the purpose of accomplishing that closing.

 Plaintiff argues in the alternative, however, that "even the [loan] increase itself survives the requirements of ...


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