at 402 (citations omitted). The plaintiff does not allege that the wrong documents were signed or that it did not understand the contents thereof. In fact, it is undisputed that the plaintiff was represented by counsel in the negotiation of terms of the loan and at the loan closing and was fully aware of the contents of the Construction Loan Agreement, Deed of Trust and Deed of Trust Note. See Def.'s Statement of Facts Not in Dispute P 9; Pl.s Statement of Genuine Issues in Dispute P 1. While the plaintiff now suggests that fraud in the factum exists here because of the allegedly egregious nature of the alleged fraud, it presents no authority for the proposition that the extremity of the allegations converts a claim for fraud in the inducement into fraud in the factum, and this Court finds none. See Pl. Supp. Opp. at 19-20. Therefore there is no basis for a claim of fraud in the factum here that would prevent the application of § 1823(e) as to the remaining claims.
Plaintiff also contends that its claims are based on the BFF's violation of implied covenants and duties which are independent of any unwritten agreement, and therefore beyond the scope of § 1823(e) and D'Oench, Duhme. This Court addressed this argument, at least in part, in its prior Memorandum Opinion, where it found that a claim of the breach of the implied covenant of good faith and fair dealing is not barred by § 1823(e). Mem. Op. at 10-11. While the plaintiff has now presented cases to further support its position, none of these cases are directly on point; moreover, none are binding on this Court. See Texas Refrigeration Supply, Inc. v. FDIC, 953 F.2d 975, 980-983 (5th Cir. 1992) (involving claim of wrongful acceleration and unreasonable sale at foreclosure); Garrett v. Commonwealth Mtge. Corp., 938 F.2d 591, 594-95 (5th Cir. 1991) (finding dismissal under D'Oench, Duhme and § 1823(e) premature on a motion to dismiss); Tuxedo Beach Club Corp. v. City Federal Savings Bank, 749 F. Supp. 635, 642-43 (D.N.J. 1990) (finding dismissal under D'Oench, Duhme and § 1823(e) premature when there has not been an opportunity for discovery on whether an enforceable "agreement" exists); American Fed'n of State, County and Municipal Employees v. FDIC, Slip op, MF No. 90-1755 (March 11, 1992), at 49-50 (rejecting argument that § 1823(e) does not apply to alleged misrepresentations and omissions independent of an agreement).
Thus the Court finds that the plaintiff's remaining claims are barred under 12 U.S.C. § 1823(e) and the D'Oench, Duhme doctrine. The plaintiff has demonstrated no reason that the Court's holding with respect to the rescission claim in this case should not apply to the other claims contained in the Complaint.
Accordingly, it is, by the Court, this 26 day of June, 1992,
ORDERED that for the reasons stated herein and those set forth in the Court's Memorandum Opinion filed May 1, 1992, the defendant's Motion for Summary Judgment shall be, and hereby is, GRANTED with respect to the remaining counts of the Complaint (Counts I, II, III, and V) in the original Civil Action No. 90-3002; and it is
FURTHER ORDERED that the original Civil Action No. 90-3002 shall be, and hereby is, DISMISSED from the dockets of this Court; and it is
FURTHER ORDERED that this Order shall have no effect on the status of the other causes of action which were subsequently consolidated into Civil Action No. 90-3002.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE