concluding on similar facts that a fidelity bond is not subject to § 1823(e)
How later courts described this case
- concluding on similar facts that a fidelity bond is not subject to § 1823(e)
- remanding to the district court for consideration under Tennessee law of Aetna’s claim that Butcher was the alter ego of a failed Tennessee bank
- noting in almost identical circumstances that “equity may not mandate the application of an alter ego defense”
- “[W]hen the FDIC, in the course of a purchase and assumption transaction, finds a bankers blanket bond, it acquires the bond with knowledge of the recognized defenses available under insurance law.”
Written by the judges who cited it.
The opinion
DAVID A. NELSON, Circuit Judge,
concurring in the judgment and in all but Parts II and III of Judge Guy’s opinion.
Although I agree with much of what is said in Part II, it seems to me unnecessary to decide whether 12 U.S.C. § 1823 (e) is or is not applicable to Aetna’s bond. Even if 1823(e) applies to such bonds — and I am inclined to think that an asserted right to recover on an insurance contract can be an “asset” under 1823(e) no less than an asserted right to recover on a negotiable instrument- — it seems to me that the “agreement” that arguably tends to diminish or defeat the FDIC’s interest in the asset is part and parcel of the asset itself, and as such it meets each of the four requirements of the statute.
The bank’s application did not ripen into an agreement until Aetna issued the bond. When the bond was issued, the application was an integral part of it — and it was (1) in writing, (2) executed by the bank, (3) ap *211 proved by the Board of Directors, and (4) has continuously been an official record of the bank. It seems to me that the “agreement” in question is thus valid against the FDIC under the plain language of the statute.
Except to the extent indicated above, I agree with Part III in its entirety. On remand, Aetna should be allowed to present its misrepresentation and adverse agency defenses.