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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 96-2292 <br> <br>               BECKLEY CAPITAL LIMITED PARTNERSHIP, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                    ELIZABETH ANN DiGERONIMO, <br>        Executrix of the Estate of Anthony L. DiGeronimo, <br> <br>                       Defendant, Appellee. <br>                      ____________________  <br> <br>No. 98-1464 <br> <br>                    ELIZABETH ANN DiGERONIMO, <br>        Executrix of the Estate of Anthony L. DiGeronimo, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>            FEDERAL DEPOSIT INSURANCE CORPORATION and <br>               BECKLEY CAPITAL LIMITED PARTNERSHIP, <br> <br>                      Defendants, Appellees. <br> <br> <br> <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br>         [Hon. James R. Muirhead, U.S. Magistrate Judge] <br>         [Hon. Joseph A. DiClerico, U.S. District Judge] <br>                                  <br> <br> <br> <br>                              Before <br> <br>                    Selya, Boudin and Lipez, <br>                                 <br>                        Circuit Judges. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Thomas J. Pappas, with whom Stephanie A. Bray, Thomas W. <br>Aylesworth and Wiggin & Nourie, P.A. were on brief for Elizabeth <br>Ann DiGeronimo. <br>     Frank P. Spinella, Jr. with whom Hall, Morse, Anderson, Miller <br>& Spinella, P.C. was on brief for Beckley Capital Limited <br>Partnership. <br>     Ashley Doherty, Counsel, Federal Deposit Insurance <br>Corporation, with whom Ann S. DuRoss, Assistant General Counsel, <br>Colleen J. Boles, Senior Counsel, Steven A. Solomon and Bachus, <br>Meyer, Solomon, Rood & Branch were on brief for Federal Deposit <br>Insurance Corporation. <br> <br> <br> <br> <br> <br>July 19, 1999 <br> <br> <br> <br>                                 <br>                                

  BOUDIN, Circuit Judge.  Before us are two appeals arising <br>out of two different district court cases, which both stem from a <br>single 1988 bank loan.  On August 15, 1988, Biotech Realty Trust <br>("Biotech") obtained a loan from the Bank of New England-Worcester <br>and executed a note in favor of the bank in the principal amount of <br>$700,000.  To secure the note,  Biotech executed a mortgage in <br>favor of the bank on a commercial building in Leominster, <br>Massachusetts; and Anthony DiGeronimo, as did two other persons, <br>executed a personal guaranty of Biotech's obligations under the <br>note. <br>  On January 6, 1991, the bank failed and the Federal <br>Deposit Insurance Corporation ("FDIC") became its receiver.  <br>Thereafter, Biotech defaulted on the note, and RECOLL Management <br>Corporation ("RECOLL"), which administered certain assets of the <br>bank on behalf of the FDIC, began foreclosure proceedings in <br>Massachusetts state court.  On March 16, 1994, RECOLL agreed with <br>Biotech and the guarantors that the building securing the note <br>would be sold to a tenant, that the proceeds would be applied to <br>reduce the outstanding balance on the note, and that the guarantors <br>would be released if they made certain disclosures as to their own <br>financial status. <br>  Although the other guarantors apparently declined to make <br>the required disclosures, Anthony DiGeronimo did make them.  In <br>addition, he contributed just over $10,000 to ensure that the net <br>amount received by the FDIC on the sale of the building to the <br>tenant met the minimum figure that the FDIC had set as a condition <br>of the overall transaction.  Although RECOLL told Anthony <br>DiGeronimo that a written release to him would be forthcoming, no <br>such release was ever delivered. <br>  After the March 1994 sale, a balance remained due on the <br>note (apparently the balance was then about $195,000).  On June 9, <br>1994, the FDIC sold the note and the guaranty to Beckley Capital <br>Limited Partnership ("Beckley") as part of a package of assets that <br>the FDIC had inherited as receiver of the bank.  On July 23, 1994, <br>Anthony DiGeronimo died, and his wife, Elizabeth Ann DiGeronimo, <br>became executrix of the estate.  New Hampshire requires that claims <br>against an estate be filed in court within one year of decedent's <br>death, N.H. Rev. Stat. Ann.  556:5, and the one-year period ended <br>without any suit being brought by Beckley against the estate of <br>Anthony DiGeronimo on the guaranty. <br>  Nevertheless, after the expiration of the one-year <br>deadline, Beckley sued Elizabeth as executrix of the DiGeronimo <br>estate on April 11, 1996, on the ground that the estate remained <br>liable under the guaranty for the outstanding balance on the note.  <br>When the estate asserted the one-year state statute of limitations <br>(along with other defenses), Beckley argued that it was entitled to <br>the much longer six-year statute of limitations available to the <br>FDIC under the Financial Institutions Reform, Recovery, and <br>Enforcement Act ("FIRREA"), 12 U.S.C.  1821(d)(14).  In September <br>1996, the magistrate judge, acting under 28 U.S.C.  636(C), <br>concluded on cross-motions for summary judgment that Beckley was <br>governed by the one-year statute and dismissed the case.  Beckley <br>Capital L.P. v. DiGeronimo, 942 F. Supp. 728 (D. N.H. 1996).  In <br>No. 96-2292, Beckley appeals from that decision.   <br>  In March 1997, Elizabeth DiGeronimo brought a separate <br>suit in the federal  district court in New Hampshire, seeking <br>specific performance against the FDIC, or in the alternative <br>against Beckley, to require  delivery of the release assertedly <br>promised by RECOLL at the time of the March 16, 1994, transaction.  <br>Although this might seem redundant given the dismissal of Beckley's <br>action, Beckley was not only appealing from that dismissal but also <br>seeking in state court to obtain an equitable extension of the one- <br>year deadline for suing the estate.  N.H. Rev. Stat. Ann.  556:28. <br>    Both defendants moved for summary dismissal of the <br>injunction action.  In a decision filed on March 23, 1998, the <br>district court dismissed the claim against the FDIC on the ground <br>that it was barred by a different provision of FIRREA, 12 U.S.C.  <br>1821(d)(13)(D).  The court also dismissed the estate's claim <br>against Beckley on the ground that it was effectively a compulsory <br>counterclaim that the estate should have asserted in the earlier <br>lawsuit by Beckley to recover on the guaranty.  See Fed. R. Civ. P. <br>13(a).  The DiGeronimo estate appeals this decision in No. 98-1464.  <br>  We begin with Beckley's appeal in No. 96-2292 in which it <br>contends that, as the FDIC's assignee, it is not bound by the state <br>law requiring that suits against an estate be brought within one <br>year.  Congress enacted a special statute of limitations applying <br>"with regard to any action brought by the [FDIC] as conservator or <br>receiver."  12 U.S.C.  1821(d)(14)(A).  For contract claims, the <br>FDIC has "the longer of (I) the  6-year period beginning on the <br>date the claim accrues; or (II) the period applicable under State <br>law."  Id.  1821(d)(14)(A)(i).  Further, the statute says that "a <br>claim accrues" for purposes of subsection (A) on "the later of (i) <br>the date of the appointment of the [FDIC] as conservator or <br>receiver; or (ii) the date on which the cause of action accrues."  <br>Id.  1821(d)(14)(B). <br>  At first glance, one might think that Beckley's position <br>is unaffected by this statute since the statute's plain language is <br>directed to suits by the FDIC (and only in its capacity as a <br>conservator or receiver), and Beckley's suit is not one by the <br>FDIC.  Nothing in the statute says that someone acquiring a <br>contract right previously held by the FDIC should get the benefit <br>of the FDIC's special statute of limitations, nor is there any <br>indication that Congress considered the issue.  Thus, neither the <br>plain language of the statute nor any directly pertinent <br>legislative history supports Beckley's position. <br>  Nevertheless, a number of circuits, and some district and <br>state courts as well, have held that one who purchases an <br>obligation owned by the FDIC as conservator or receiver is entitled <br>to take advantage of the special six-year statute of limitations, <br>and no circuit appears to directly hold to the contrary.  But cf. <br>Federal Fin. Co. v.  Hall, 108 F.3d 46 (4th Cir.), cert. denied, <br>118 S. Ct. 157 (1997) (dictum).  This outcome is usually made to <br>rest on either or both of two propositions:  the common law axiom <br>that assignees "stand in the shoes" of assignors, e.g., Bledsoe, <br>989 F.2d at 810, and the federal policy interest in promoting the <br>marketability of the FDIC's assets derived from failed banks, e.g., <br>id. at 18.   <br>  The axiom is fairly weak support for the result.  It is <br>true that courts often say that assignees stand in the shoes of <br>assignors and are thus entitled to whatever rights the assignor had <br>vis--vis the transferred asset.  See 6 Am. Jur. 2d Assignments  <br>102 (collecting cases).  But the proposition is too abstract and <br>has too many exceptions to be very useful in a case like this one.  <br>Indeed, sometimes an assignee may get more than the assignor had, <br>notably a good faith purchaser of a negotiable instrument, who may <br>take free of certain defenses that could have been asserted against <br>the assignor.  E.g., U.C.C.  3-302, 3-305.  And it is pretty easy <br>to imagine procedural "rights" peculiar to an assignor that would <br>not readily be transferrable to the assignee. <br>  The "stand in the shoes" axiom makes most sense when it <br>is directed to defining the bundle of substantive rights that <br>comprise the asset that has been transferred, see, e.g., Newton v. <br>Fin. Corp., 967 F.2d 340, 347 (9th Cir. 1992) (extending to FSLIC <br>assignee the protections of D'Oench, Duhme & Co. v. FDIC, 315 U.S. <br>447 (1942)), and it makes less sense (at least as an automatic <br>principle) when one is concerned with advantages or disabilities <br>that are peculiar to the status of either the assignor or the <br>assignee. Such issues ought to be decided by the usual criteria <br>(e.g., statutory language, pertinent policy) rather than by <br>shibboleths. <br>  The policy arguments relied upon by a number of the <br>courts that have given the assignee the benefit of the FDIC's <br>statute of limitations do have some weight.  In a nutshell, the <br>language and background of the FIRREA statute show that Congress <br>was attempting to aid the FDIC in its role as receiver or <br>conservator in coping with a wave of bank failures and huge <br>potential liabilities for the taxpayers.  To this end, FIRREA is <br>filled with provisions that vary ordinary contract rules in the <br>FDIC's favor.  See, e.g., Lawson v. FDIC, 3 F.3d 11, 13 (1st Cir. <br>1993). The special FIRREA statute of limitations (most importantly, <br>the special definition of accrual)  reflects this approach.   <br>  The argument for extending this particular break to <br>assignees of FDIC owned notes, in the teeth of statutory language <br>that does not mention assignees, is a practical one.  Congress <br>perhaps thought that the FDIC would itself sue on notes payable to <br>failed banks, but the FDIC finds it convenient to sell these notes <br>in bulk; and marketability may be enhanced if the private purchaser <br>can use the longer statute of limitations.  The clearest case is <br>where the time to sue under normal statutes of limitation has <br>already run by the time the FDIC makes the sale; the note would be <br>essentially valueless to anyone other than the FDIC unless the <br>benefit of the FIRREA statute of limitations "ran" with the note. <br>  Granting that the policy interest is a real one, the case <br>is very close.  A principal task of federal courts is to implement <br>imperfect federal statutes.  See Versyss Inc. v. Coopers and <br>Lybrand, 982 F.2d 653, 654 (1st Cir. 1992).  But it is one thing to <br>resolve ambiguities in accordance with general policy and <br>altogether another to extend a statute to a new class of <br>beneficiaries that Congress did not even mention.  Thus, we are not <br>unsympathetic to the dictum in the Fourth Circuit expressing its <br>reluctance to read the FIRREA statute as covering assignees.  See <br>Hall, 108 F.3d at 50 (allowing suit based on state law). <br>  Nevertheless, virtually all of the circuits that have <br>decided the issue on the merits have allowed the purchaser to make <br>use of the FDIC's special statute of limitations, and we are loathe <br>to create a conflict in uniform authority unless there is no <br>choice.  Statutory language should never be read without attention <br>to purpose even when the language seems clear on its face, see <br>National Labor Relations Bd. v. Lion Oil Co., 352 U.S. 282, 288 <br>(1957); and while the majority reading is still something of a <br>stretch, one can also view the outcome as a court-made "federal <br>common law" rule as to when a right given to the FDIC should be <br>treated as "running" with the assignment.  See Chemerinsky, Federal <br>Jurisdiction  6.3 (3d ed. 1999). <br>  This conclusion might appear to resolve the case in <br>Beckley's favor but it does not.  Both the magistrate judge and the <br>DiGeronimo estate assume that the FDIC statute of limitations can <br>be utilized by Beckley, but each says that the New Hampshire <br>statute still stands as an obstacle to the claim.  Both the <br>estate's position on appeal and that of the magistrate judge rest <br>on the premise that the New Hampshire one-year statute is not <br>"really" a statute of limitation and therefore is not in conflict <br>with (and overridden by) the longer six-year FIRREA statute. <br>  Although there is something to be said on both sides of <br>the matter, compare RTC v. Liebert, 1995 U.S. Dist. LEXIS 8492, at <br>*2 (C.D. Cal. 1994), with Davis v. Britton, 729 F. Supp. 189, 191 <br>(D.N.H. 1989), we think that the precise characterization of the <br>New Hampshire statute does not matter here.  Yes, the policy behind <br>the one-year statute differs from the usual statute-of-limitations <br>concern with stale claims and faded memory, but the underlying <br>thrust is the same:  to prevent suits from being brought after a <br>specific period of time.  Under standard "conflict" preemption <br>doctrine underpinned by the Supremacy Clause, Cipollone v. Ligget <br>Group, Inc., 505 U.S. 504, 516 (1992), this enactment overrides any <br>one-year limitation period imposed under state law. <br>  Nevertheless, we agree that Beckley's suit is barred by <br>the one-year New Hampshire statute.  If the FDIC were suing, the <br>FIRREA statute would allow it to do so despite the one-year <br>statute, simply because Congress would be taken to have settled the <br>matter.  However, Congress did not purport to decide that an <br>assignee should be entitled to the same benefit and, to the extent <br>assignees are allowed to do so, it is for reasons of federal <br>policy.  No reason exists to extend this special benefit beyond the <br>point where it serves the federal policy; and it does not do so <br>here.  Cf. Llewellyn, The Bramble Bush 189 (1960). <br>  We have already noted, and accepted, the policy rationale <br>for allowing the assignee the benefit of the FIRREA statute of <br>limitations--namely, that in some situations it is essential to <br>make obligations held by the FDIC marketable (and the debtor's <br>plight is less sympathetic since the FDIC could itself still sue).  <br>But this policy rationale has real force, or at least most force, <br>only where an obligation inherited by the FDIC from a failed bank <br>is already in default (or nearly so) at the time that the FDIC re- <br>assigns it; if not, the assignee can enforce it readily enough <br>under an ordinary statute of limitations. <br>  Indeed, as the Fifth Circuit cogently pointed out in <br>Cadle Co. v. 1007 Joint Venture, 82 F.3d 102 (5th Cir. 1996), the <br>rationale for extending the FIRREA limitation period to assignees <br>has very little force where the note is not in default at the time <br>it is sold by the FDIC.  In such a case, the assignee will always <br>have some reasonable period within which to enforce the note after <br>it goes into default.  Accordingly, while the Fifth Circuit  <br>earlier adopted the general rule that the assignee could use the <br>FIRREA statute, Bledsoe, 989 F.2d at 811, it drew the line at this <br>point and refused to extend this benefit to the situation in which <br>the note was not in default at the time of the FDIC's assignment.  <br>We think it was right to do so. <br>  In the present case, the estate cannot take advantage of <br>Cadle directly because (so far as we can tell) the note was in <br>default at the time it was sold by the FDIC to Beckley and, of <br>greater relevance, DiGeronimo himself was probably already subject <br>to suit on the guaranty.  The terms of the guaranty and of the note <br>generally control when the claim against the guarantor accrues, <br>typically either from the point at which the primary maker defaults <br>on the guaranteed note or at some later point when a demand has <br>been made on the guarantor for payment.  Although the parties have <br>not briefed the issue in this case, it appears likely to us and we <br>will assume that the ordinary statute of limitations had begun to <br>run on the guaranty prior to its transfer to Beckley. <br>  Nevertheless, the one-year New Hampshire statute had not <br>begun to run at the time of the transfer because Beckley acquired <br>the note and the guaranty in June 1994 and DiGeronimo did not die <br>until July 1994.  Accordingly, Beckley had the same one-year period <br>to sue as any other person (apart from the FDIC) who happened to <br>have a claim against a New Hampshire decedent.  And because Beckley <br>acquired the guaranty before this period even began to run, its <br>position is closely analogous to the assignee in Cadle that <br>acquired its note prior to the default.  Put differently, there is <br>no reason why a special statute of limitations is needed in this <br>case to make the obligation marketable to a purchaser, and absent <br>such a reason, the policy behind state statutes of limitation-- <br>vivid in this case--ought to be respected. <br>  We are not suggesting that in every case there should be <br>a precise balancing of interests to decide whether the assignee <br>should get the benefit of the special FIRREA statute of <br>limitations.  Rather, we adopt the principle in Cadle that the <br>assignee does not get this benefit where an obligation is <br>transferred by the FDIC before it is in default.  And it is a <br>natural extension of this principle that the assignee should not be <br>able to avoid a state probate statute such as New Hampshire's when <br>the maker of the note or guarantor had not died at the time that <br>the instrument is transferred.  This will require private <br>purchasers of FDIC notes to be as diligent as other local <br>plaintiffs, but it is a reasonable enough requirement that should <br>not have any significant impact on the marketability of FDIC <br>assets. <br>  Having concluded that the New Hampshire statute bars <br>Beckley's suit against the estate, we do not address an alternative <br>ground offered by the estate as a reason to affirm the district <br>court's judgment.  The estate's premise is that the FDIC agreed to <br>release DiGeronimo  from his guaranty prior to the March 16, 1994, <br>sale.  Specifically, DiGeronimo says that the FDIC  would be barred  <br>from enforcing the guaranty by accord and satisfaction and by <br>estoppel, and, as Beckley purports to stand in the FDIC's shoes, it <br>should be similarly barred.  Beckley offers a series of technical <br>objections to this argument, including the assertion that such <br>defenses had not been adequately pled by the estate under Fed. R. <br>Civ. P. 8(c).   Needless to say, Beckley's position is <br>unattractive from an equitable standpoint, assuming that RECOLL did <br>promise a release.  But technicalities sometimes prevail--for <br>reason of long-term advantage to society--over immediate equities.  <br>Yet it is by no means clear that Beckley's multiple objections to <br>the estate's alternative grounds could be resolved without further <br>proceedings in the district court.  It is for this reason that we <br>have assumed dubitante throughout that Beckley may have a valid <br>claim on the guaranty, and we have faced and resolved the difficult <br>statute of limitations issues on that assumption. <br>  Turning now to the estate's own appeal in No. 98-1464, it <br>presents complications that make the statute of limitations issue <br>look tame.  However, in the meantime, Beckley has reportedly failed <br>in its effort to obtain a waiver of the one-year New Hampshire <br>statute, making the guaranty effectively unenforceable.  Under <br>these circumstances, counsel for the estate agreed at oral argument <br>that the affirmative relief that DiGeronimo sought in No. 98-1464 <br>is unnecessary should it prevail in the other appeal.  Accordingly, <br>we dismiss that appeal, subject always to reinstatement on motion  <br>if for some reason the issue should cease to be moot. <br>  In No. 96-2292, the judgment of the district court is <br>affirmed with costs to be awarded in favor of appellee.  In No. 98- <br>1464, the appeal is dismissed without prejudice and on this appeal, <br>each side shall bear its own costs. <br>  It is so ordered.</pre>

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