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COTE D'AZUR HOMEOWNERS ASSN. v. VENTURE CORP.

March 11, 1994

COTE d'AZUR HOMEOWNERS ASSOCIATION, Plaintiff,
v.
VENTURE CORPORATION, et al., Defendants.



The opinion of the court was delivered by: EUGENE F. LYNCH

 I. Introduction

 The motion before the Court is a motion for summary judgment brought by defendant Resolution Trust Corporation ("RTC") against plaintiff, Cote d'Azur Homeowner's Association, and defendant/crossclaimant, Venture Corporation. The RTC contends that the D'Oench, Duhme doctrine and its statutory counterpart 12 U.S.C. § 1823(e) bar the assertion of two alleged side agreements, a joint venture agreement and a settlement agreement, which are essential to both parties' claims against the RTC.

 For the reasons set forth in this Order, the Court holds that D'Oench, Duhme and 12 U.S.C. § 1823(e) do not bar the assertion of the two agreements at issue. Therefore the Court DENIES the RTC's motion for summary judgment.

 II. Background

 This action was brought by Cote d'Azur Homeowners Association ("Association") for negligence, strict liability, breach of warranties, fraudulent concealment, and breach of fiduciary duty in connection with alleged construction defects in the Cote d'Azur condominium development located in Sausalito, California. See, Fifth Amended Complaint. *fn1" Plaintiff has named, among others, the following defendants: (1) the joint venture which undertook the development and sale of the condominiums, Cote d'Azur Associates, and (2) the individual partners in the joint venture-- Venture Corporation, Cote d'Azur Developers, Inc., Gibraltar Savings, and Gibraltar Management of Properties, Inc. *fn2" Due to the insolvency of Gibraltar Savings and the dissolution of Gibraltar Management of Properties, the RTC has been substituted as defendant for both parties in its capacity as receiver.

 In addition to plaintiff's claims, this dispute contains an abundance of crossclaims and counterclaims, one of which is relevant to the pending motion for summary judgment: Venture Corporation has crossclaimed against Gibraltar Savings, Gibraltar Management of Properties and the RTC for equitable indemnity, comparative indemnity, contribution, and express contractual indemnity (solely against Gibraltar). See, Venture Corporation's Second Amended Cross Claim. Venture Corporation's claims allegedly arise from Gibraltar's status as a partner in the joint venture, as well as an express indemnification clause in a settlement agreement between Venture Corporation and Gibraltar.

 Under the agreement, Venture Corporation was the managing partner and Gibraltar Savings was to provide the construction financing and receive a share of the profits; in addition, Gibraltar was to be involved in the major decisions concerning the project. Shortly after entering into the joint venture, Gibraltar assigned its interest to Gibraltar Management of Properties, Inc., a wholly owned subsidiary of Gibraltar Savings. Venture Corporation (Eves Development Company) assigned its interest to its subsidiary, Cote d'Azur Developers, Inc. The joint venture was known as Cote d'Azur Associates ("CDA"). The units were developed and sold to the public. *fn4"

 The events which occurred as Gibraltar Savings began to experience financial problems are difficult to follow. On March 30, 1989, the FSLIC became the conservator of Gibraltar Savings. On April 28, 1989, Gibraltar Savings and Gibraltar Management of Properties, Inc. filed suit against its joint venture partner, Venture Corporation, alleging breach of the joint venture agreement and requesting an accounting of the partnership funds. That litigation was settled pursuant to a settlement agreement dated September 27, 1989. *fn5" The settlement agreement assigned the assets and liabilities of Cote d'Azur Associates to the parties.

 The RTC was appointed conservator of the "old" Gibraltar Savings on October 30, 1989. Later that day, the Office of Thrift Supervision transferred certain assets to the "new" Gibraltar Savings. On October 31, 1989, Gibraltar Management of Properties was dissolved and all of its assets and liabilities were transferred to and assumed by the "old" Gibraltar Savings. Also on October 31, 1989, the RTC was appointed the conservator of the "new" Gibraltar Savings.

 Then, on March 30, 1990, plaintiff filed this action for construction deficiencies in Marin County Superior Court. On June 29, 1990, Gibraltar Savings was declared insolvent and the RTC was appointed its receiver. On May 14, 1992, the RTC appeared in this action and on May 15, 1992, removed the action to this Court.

 III. Summary

 The RTC seeks summary judgment against both plaintiff and crossclaimant Venture Corporation based on the D'Oench, Duhme doctrine and its statutory counterpart 12 U.S.C. § 1823(e). In essence, the RTC contends that, whether separately or together, the D'Oench doctrine and § 1823(e) allow the RTC to rely exclusively on the records of the bank. Thus, any cause of action which relies on an agreement, such as the joint venture or settlement agreement, not meeting the recordation requirements of § 1823(e) cannot be asserted by plaintiff or crossclaimant against the RTC. *fn6"

 The Court disagrees. The Court holds that the D'Oench, Duhme doctrine and 12 U.S.C. § 1823(e) do not bar plaintiff's claims against the RTC, nor Venture Corporation's crossclaims for defense and indemnification. First, § 1823(e) does not bar either set of claims as there is no particular asset acquired by the RTC which the parties seek to diminish by asserting the respective agreements. The Court rejects the position advocated by the RTC that § 1823(e) applies whenever an asserted claim would diminish the general assets of the receivership.

 Lastly, D'Oench, Duhme and § 1823(e) do not together form a greater bar to the assertion of "side agreements" than each alone. Despite the breadth and admitted harshness of the bar created by D'Oench and its statutory counterpart, the bar is limited by both the terms of the statute and the scope of the common law doctrine. Section 1823(e) does not apply where there is no particular asset to be diminished; D'Oench, Duhme does not apply where the party asserting the claim is a creditor in a non-lending transaction. *fn7" This case presents the rare situation in which neither the Homeowner's Association nor Venture Corporation is an obligor of the bank, and the agreements they seek to assert do not affect the RTC's interest in a particular asset. The Court therefore declines to extend D'Oench and § 1823(e) to bar the assertion of the joint venture and settlement agreements at issue in this case.

 IV. Discussion

 A. Overview of D'Oench and 12 U.S.C. § 1823(e)

 At the outset, the Court notes that this case presents unusual facts in the context of the application of the D'Oench, Duhme doctrine and its statutory counterpart. Though the parties have argued the motion extensively, both orally and in their briefs, neither party has been able to point the Court to factually analogous cases in which D'Oench, Duhme and § 1823(e) were either held to bar claims such as plaintiff's or crossclaimant's, or held not to bar such claims. In addition, though the Court's own research has unearthed a large body of case law which discusses D'Oench and § 1823(e), very few cases provide guidance for their application to the two agreements at issue in this case: a joint venture agreement and a settlement agreement. Moreover, these classic D'Oench cases do not directly indicate whether the common law bar should apply against parties who are in no sense obligors of the bank and are not involved in a lending transaction. Given courts' expansive interpretation of D'Oench and § 1823(e), it is difficult to discern the true limits of the protection afforded the federal banking authorities. Therefore, prior to addressing the specific arguments relied on by the parties, the Court provides an overview of the D'Oench doctrine and § 1823(e).

 1. The D'Oench, Duhme Doctrine

 The D'Oench, Duhme doctrine is a federal common law rule of equitable estoppel which precludes obligors from asserting against the FDIC/RTC, as the basis for a defense or an affirmative claim, a secret, side agreement which is not reflected in the records of the bank and therefore may mislead bank examiners concerning the value of written loan obligations. Federal Deposit Ins. Corp. v. Zook Bros. Constr. Co., 973 F.2d 1448, 1450 (9th Cir. 1992). The doctrine originated in the namesake case of D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676 (1942) in which the Supreme Court held that a borrower was precluded from defending against the FDIC on the basis that a secret, unrecorded side agreement allegedly altered the terms of an obligation carried on the books of the bank. 315 U.S. at 460.

 The Supreme Court based the rule of equitable estoppel upon the "federal policy to protect respondent [FDIC], and the public funds which it administers against misrepresentation as to the securities or other assets in the portfolios of banks which respondent insures or to which it makes loans." D'Oench, Duhme, 315 U.S. at 457; see also, Federal Sav. & Loan ...


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