
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1487                               MIGUEL VILLAFANE-NERIZ,                        INSURANCE COMMISSIONER OF PUERTO RICO,                                Plaintiff, Appellant,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION,                                 Defendant, Appellee.                                _____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judqe]                                               ___________________                                _____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                _____________________            Carlos  J. Morales-Bauza  with  whom Jesus  R.  Rabell-Mendez  and            ________________________             ________________________        Rossello-Rentas & Rabell-Mendez were on brief for appellant.        _______________________________            J.  Scott  Watson,  Senior  Attorney,  with  whom  Ann  S. DuRoss,            _________________                                  ______________        Assistant  General  Counsel,  and  Richard J.  Osterman,  Jr.,  Senior                                           __________________________        Counsel, were on brief for appellee.                                 ___________________                                    April 4, 1994                                 ___________________                      STAHL,  Circuit  Judge.   In this  appeal plaintiff                              ______________            seeks  the proceeds of a  certificate of deposit  issued by a            now-failed  bank.    Simultaneously  with  its  purchase, the            certificate  was assigned  to  a third  party, the  Insurance            Commissioner  of the  Commonwealth   of   Puerto   Rico ("the            Commissioner").   The Commissioner  brought suit  against the            FDIC  seeking to establish his  right to the  proceeds of the            certificate, and attempted to introduce  documents evidencing            both  the assignment and  the bank's  acknowledgment thereof.            The district court  applied 12  U.S.C.   1823(e)  to bar  the            assignee's  use of  the assignment  documents.   Finding both            section 1823(e)  and the  D'Oench1 doctrine inapplicable,  we                                      _______            reverse.                                          I.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       ________________________________________                      The facts of this case are  essentially undisputed.            In order to  do business  in the commonwealth,   Puerto  Rico            insurance  companies are  first  required by  law to  deposit            funds with the  Commissioner.   See 26  L.P.R.A.     801-809.                                            ___            Moreover,  once these  funds are  deposited, Puerto  Rico law            provides that they  may not  be levied upon  by creditors  or                                            ____________________            1.  As  we pointed out in  McCullough v. FDIC,  987 F.2d 870,                                       __________    ____            874  (1st Cir.  1993), section  1823(e) is  "somewhat loosely            described as  the codification" of the  D'Oench doctrine, and                                                    _______            the parties' briefs in this case address both D'Oench and its                                                          _______            "statutory partner," id.  at 874  n.6.  Seeing  no reason  to                                 ___            except   D'Oench  from   our   discussion,  we   address  the                     _______            application of both doctrines.                                         -2-                                          2            claimants  of the insurance company.  Id.   809 ("No judgment                                                  ___            creditor  or other claimant of an insurer shall levy upon any            deposit  held pursuant  to  this chapter,  or  upon any  part            thereof.").   On  July  20, 1983,  in  order to  satisfy  the            statutory   deposit   requirement,  Guaranty   Insurance  Co.            ("Guaranty")  purchased a  six-month  certificate of  deposit            from the Girod Trust  Company ("Girod" or "the bank")  in the            principal amount of $50,000.  The certificate  of deposit had            a maturity date of January 17, 1984.  On the same day that it            purchased  the  certificate,  Guaranty,  through  one  of its            officers,  executed a separate document entitled a "Fiduciary            Assignment" in which it irrevocably assigned and conveyed its            interest in  the certificate of deposit  to the Commissioner.            Girod was not a party to the Fiduciary Assignment.                      Accompanying  both the  certificate of  deposit and            the Fiduciary Assignment was yet another document executed on            the  same date, July  20, 1983, entitled  "Requisition to the            Bank." This Requisition stated,  inter alia, that Girod would                                             _____ ____            not  release  the funds  represented  by  the certificate  of            deposit,  "whether the  principal value  or income  thereof,"            without  the   authorization  of  the  Commissioner.     More            specifically, the Requisition stated, "[W]e [Girod] agree and            promise  to dispose of  the certificate of  deposit  .   .  .            only  with  prior  authorization  from  the  Commissioner  of            Insurance of  Puerto Rico."   The  Requisition was signed  by                                         -3-                                          3            Allwin  Perez "in  his capacity  as manager  of the  San Juan            branch of Girod Trust Company."  His signature was notarized.            Like the Fiduciary Assignment, the Requisition stated,  "This            requisition will be irrevocable."  The certificate of deposit            itself was given to, and remains with, the Commissioner.                      Less  than   three  months  after   purchasing  the            certificate of  deposit from Girod, Guaranty  executed a loan            agreement, unrelated to the certificate  of deposit, pursuant            to  which  it borrowed  $600,000 from  Girod.   The  loan was            evidenced by a  promissory note for  that amount, payable  to            Girod.   The note  was due  on April  26, 1984,  and Guaranty            began  making payments  according  to  the  loan  agreement's            schedule.                      On  January 17,  1984, the  certificate of  deposit            came due.  At the request of Guaranty, it was  "rolled over,"            i.e., extended for a term of  six additional months.  In  the            meantime, Guaranty had fallen behind on payments due to Girod            under the $600,000  loan agreement.   On July  16, 1984,  the            certificate of deposit came  due again.  This  time, however,            the certificate was not  "rolled over."  Rather, on  July 18,            1984,  two  days  after  the  certificate  had  matured,  the            proceeds were credited to Guaranty's  account.  Specifically,            $50,000 from the certificate of  deposit was  credited toward            Guaranty's outstanding  indebtedness under the  $600,000 loan            agreement.                                         -4-                                          4                      On August 16,  1984, Girod  was declared  insolvent            and the  FDIC was appointed receiver.   On December 19, 1984,            Guaranty  also  became  insolvent.    The  Commissioner   was            appointed  Guaranty's  receiver.   On  August  25, 1986,  the            Commissioner filed  a proof of  claim with the  FDIC, seeking            payment  on the  certificate of  deposit.   On May  22, 1991,            having  received no  payment on  the claim,  the Commissioner            filed a complaint against  the FDIC in the Superior  Court of            Puerto  Rico   seeking  to   recover  the  proceeds   of  the            certificate  of  deposit.   The  FDIC removed  the  action to            federal court pursuant to 12 U.S.C.   1819(b).                      The   parties   filed  cross-motions   for  summary            judgment.2 Without ruling on  the motions, the district court            asked the parties to  submit briefs on the application  of 12            U.S.C.   1823(e).3 Upon submission of the briefs,the district                                            ____________________            2.  The Commissioner argued, in  essence, that the offset was            improper  and that  he was  entitled to  the proceeds  of the            certificate of  deposit.  The  FDIC argued, inter  alia, that                                                        _____  ____            the Commissioner's claim was barred by laches.            3.  Section 1823(e) states:                      No agreement which  tends to diminish  or                      defeat the interest of the [FDIC] in  any                      asset  acquired by it  under this section                      or  section 1821 of this title, either as                      security for a loan  or by purchase or as                      receiver   of   any  insured   depository                      institution, shall be  valid against  the                      Corporation unless such agreement--                      1) is in writing,                                         -5-                                          5            court  held  that section  1823(e) barred  the Commissioner's            reliance    upon  either  the  Fiduciary  Assignment  or  the            Requisition (also referred to hereinafter as "the  assignment            documents").    In  essence,  the  court  reasoned  that  the            assignment documents constituted an "agreement which tends to            diminish or defeat the interest of" the  FDIC in an asset for            purposes of section 1823(e).   The district court went  on to            reason that, because the  assignment documents failed to meet            the requirements  set out in section 1823(e), e.g., they were            approved by neither  the bank's  board of  directors nor  its            loan committee, the Commissioner was barred from relying upon            them.  Therefore, the district court ordered summary judgment            in favor of the FDIC.4                                            ____________________                      2)  was    executed    by  the depository                      institution  and  any person  claiming an                      adverse  interest  thereunder,  including                      the  obligor, contemporaneously  with the                      acquisition   of   the   asset   by   the                      depository institution,                      3) was approved by the board of directors                      of the depository institution or its loan                      committee, which approval shall be                      reflected in the minutes of said board or                      committee, and                      4) has been, continuously, from the time                      of its execution, an official record of                      the depository institution.            4.  The  district  court also  summarily  concluded  that the            assignment  of the  certificate of  deposit "was  not validly            consented to by  [Girod],   represented by Mr.  Perez."   The            proceedings below  reflect only that  Girod may  have had  an            internal   procedure  which   required  that   two  qualified            employees,  rather than  a single  employee, sign  agreements                                         -6-                                          6                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      The sole issue before us is whether section 1823(e)            bars   the  Commissioner   from  relying  on   the  Fiduciary            Assignment and  the Requisition  in making his  claim against            the FDIC.  We hold that the Commissioner is not so barred.            A.  Standard of Review            ______________________                      Where, as here, the essential  facts are undisputed            and the sole issue on appeal involves a pure question of law,            our  review is de novo.  See,  e.g., FDIC v. Keating, 12 F.3d                           __ ____   ___   ____  ____    _______            314, 316 (lst Cir. 1993).            B.  Bank Assets and Bank Liabilities            ____________________________________                      We  begin with  crucial,  if  rudimentary,  banking            terminology.  As  one commentator recently noted,  "It may be            helpful  to recall  that  banks and  thrifts have  a somewhat            counterintuitive perspective on  the accounting of  deposits,            which  appear   on  their  balance   sheets  as  liabilities.                                                             ___________                                            ____________________            which bound Girod.   We agree with the Commissioner  that the            bank's   own   internal   procedures   are   not  necessarily            dispositive on the  issue of  whether the bank  was bound  by            Perez's signature.  See, e.g., 10 Am. Jur. 2d Banks 99 (1963)                                ___  ____                 _____            ("[W]hen  a bank opens its doors for business with the public            and  places officers in charge,  persons dealing with them in            good  faith and without any  notice of any  want of authority            will be protected where  an act is performed in  the apparent            scope  of the  officer's  authority, whether  the officer  is            actually clothed with such authority or not.").  The FDIC has            offered no argumentation or authority to the contrary, either            below or on appeal.   Thus, we conclude that the record  does            not  support a  conclusion  as  a  matter  of  law  that  the            assignment was invalid.                                         -7-                                          7            Meanwhile, loans from banks appear on their balance sheets as            assets."   David G. Oedell, Private  Interbank Discipline, 16            ______                      _____________________________            Harv.  J.L. &  Pub.  Pol'y 327,  384  n.206 (1993)  (emphasis            added). In other words, bank deposits, including certificates            of  deposit such as  the one at  issue here, see  12 U.S.C.                                                           ___            1811(1)  (defining  a deposit  as,  inter  alia, "the  unpaid                                                       ____            balance of money or its equivalent received or held by a bank            . . .  which is  evidenced by its  certificate of  deposit"),            represent obligations on the part of a bank to repay funds to            depositors.  As such, they are reflected on a bank's books as            liabilities.   Loans  made to  bank  customers, on  the other            hand, represent obligations on the part of borrowers to repay            sums certain  to the  bank, and  as such are  reflected on  a            bank's books as assets.                      Obviously, the books  of failed banks contain  both            assets and  liabilities.  The FDIC  fulfills vastly different            functions  as  to the  two sides  of  a failed  bank's ledger            sheet.            C.  The Role of the FDIC in Bank Failures and the Purpose of            ____________________________________________________________            D'Oench and Section 1823(e)            ___________________________                      The  role  of the  FDIC  in bank  failures  is well            established.    Its  "basic  mission is  to  protect  insured            depositors," FDIC  v. La Rambla Shopping Ctr., Inc., 791 F.2d                         ____     _____________________________            215,  218 (lst Cir. 1986),  which it does  by "undertaking an            obligation  to pay  depositors when  an insured  bank fails."            FDIC v. Nichols, 885 F.2d 633, 636 (9th Cir. 1989).  In other            ____    _______                                         -8-                                          8            words, satisfying a failed bank's liabilities, especially its            deposits, is a primary goal of the FDIC.                      A  failed bank's  assets,  on the  other hand,  are            either liquidated or  transferred to a  solvent bank.5   See,                                                                     ___            e.g., FDIC v. P.L.M. Int'l, Inc., 834 F.2d 248, 254 (lst Cir.            ____  ____    __________________            1987).   Needless to say,  not all borrowers  (i.e., obligors            with  regard  to  the   bank's  assets)  happily  meet  their                                            ______            obligations toward a failed bank, and many  attempt to assert            claims and defenses against the FDIC aimed at relieving those            obligations.   The doctrines  enunciated in D'Oench,  Duhme &                                                        _________________            Co.   v.  FDIC,  315  U.S.  447  (1942),  and  its  statutory            ___       ____            counterpart, 12 U.S.C.   1823(e),  greatly limit the types of            claims  and defenses  that borrowers  may assert  against the            FDIC.   In essence, such  claims and defenses  are limited to            those that  are based on  documentation in the  failed bank's            records.  Moreover, these  doctrines governing the claims and            defenses of borrowers are designed to enable the FDIC to meet                        _________            more  effectively its  obligations to  pay depositors.   See,                                                       __________    ___                                            ____________________            5.  Admittedly,  the FDIC  often, as  it did  here, transfers            obligations on both sides of a failed bank's ledger sheets to                           ____            a  solvent bank.   In   such   situations,  the solvent  bank            "purchases"  certain  of  the  failed  bank's    assets,  and            simultaneously "assumes"  that bank's liabilities,  i.e., its            deposits.    Such  a  transaction  is  known  commonly  as  a            "purchase and assumption" transaction.  See, e.g., Timberland                                                    ___  ____  __________            Design Inc. v. First  Serv. Bank for Savs.,  932 F.2d 46,  48            ___________    ___________________________            (lst Cir. 1991); La Rambla, 791 F.2d at 218.  Depositors then                             _________            maintain their insured deposits, while borrowers  continue to            meet their obligations, allowing banking business to continue            with some regularity.                                         -9-                                          9            e.g.,  Timberland Design  Inc. v. First Serv. Bank for Savs.,            ____   _______________________    ___________ ______________            932  F.2d  46, 48  (lst  Cir.  1991)  ("`[T]he D'Oench  Duhme                                                           ______________            doctrine  .  .  .  favors the  interests  of  depositors  and                                                          __________            creditors  of a  failed bank,  who cannot  protect themselves            from secret agreements, over  the interests of borrowers, who                                                           _________            can.'") (emphasis supplied) (quoting Bell & Murphy & Assocs.,                                                 ________________________            Inc. v. Interfirst Bank Gateway, N.A., 894 F.2d 750, 754 (5th            ____    _____________________________            Cir.), cert. denied, 498 U.S. 895 (1990)).                   _____ ______            D.   The Assignment Documents:   Agreements Affecting  a Bank            _____________________________________________________________            Deposit            _______                      Turning to the transaction here, it is evident that            at  the time the certificate of deposit was purchased and the            Fiduciary Assignment and the Requisition were  executed, they            were agreements  having an effect  on one of  Girod's insured            deposits,6 rather than one  of its assets.   The significance            of  this distinction is made  clearer if we  examine, step by            step, the banking transactions at issue.                                            ____________________            6.  As to the existence  of an insured deposit in  this case,            we cannot say, given  the state of the record  below, whether            or to what  extent we would be  willing to follow  the Eighth            Circuit's  holding in In re Collins Sec. Corp., 998 F.2d 551,                                  ________________________            554-55 (8th Cir. 1993) (holding that the  FDIC  is not liable            in its corporate  capacity because no account  existed at the            time  of   the  bank's   failure  due  to   a  non-fraudulent            pre-failure  bank error).  We merely point out to the parties            that similar  issues may arise on remand, along with possible            jurisdictional  issues. See  La  Rambla, 791  F.2d at  220-21                                    ___  __________            (finding  no   jurisdictional   basis  under   12  U.S.C.                1819(b)(2)(D)  or (E)  for counterclaim  against FDIC  in its            capacity as receiver).                                         -10-                                          10                      It   is  undisputed  that  Guaranty  purchased  and            assigned  the  certificate  of  deposit  on  July  20,  1983.            Suppose that Girod had failed  the following day, i.e., after            the purchase  and assignment  of the certificate  of deposit,            but before Guaranty  borrowed any  funds from Girod.   If  at            that point the Commissioner sought  payment from the FDIC, we            think  it  indisputable  that  neither  D'Oench  nor  section                                                    _______            1823(e) would be implicated at all.                      Section 1823(e)  would be inapplicable  because, by            its  terms, that  section  applies only  to agreements  which            "tend to diminish  or defeat the interest of the  FDIC in any            asset acquired by  it."   Prior to Guaranty's  taking of  its                                      _____            $600,000 loan,  Guaranty's certificate of deposit  was merely            an insured deposit, unrelated  to any particular Girod asset.            Given that  the Commissioner's claim would  diminish no Girod            asset,  and  would merely  amount to  a  claim on  an insured            deposit, section 1823(e) would have no application.                      Nor would  the D'Oench doctrine, in  the absence of                                     _______            section 1823(e), apply in such a situation.  At its broadest,            the D'Oench  doctrine disallows claims and  defenses based on                _______            schemes or arrangements "whereby banking authorities would be            misled."   FDIC v. Caporale, 931  F.2d 1, 2 (lst  Cir. 1991).                       ____    ________            Prior  to  the  $600,000  loan to  Guaranty,  the  assignment            presented no  such threat.   Bank examiners  would have  been            fully aware  of the  bank's liability  on the certificate  of                                         -11-                                          11            deposit, and the Commissioner's claim merely would present an            issue as  to who was entitled to payment.  Moreover, the FDIC            does not argue  that the loan to Guaranty, in  and of itself,            altered the validity of the assignment.                      In  sum,  prior  to  the bank's  crediting  of  the                                _____            proceeds  of the  certificate  of  deposit toward  Guaranty's            outstanding indebtedness, this case  involved an insured bank            deposit,   rather  than  a   bank  asset.     It  is  equally            indisputable  that  prior   to  that  crediting  transaction,            neither section 1823(e) nor D'Oench would have applied to bar                                        _______            the  Commissioner's reliance upon the Fiduciary Assignment or            the Requisition in establishing his  right to the proceeds of            the certificate of  deposit.   Rather, the FDIC,  as it  does            with other  deposits, would have  paid the proceeds  from the            certificate  of  deposit   to  the  Commissioner7  upon   his            establishing  his right to those proceeds.  Cf. In re Collins                                                        ___ _____________            Sec. Corp., 998 F.2d  551, 553 (8th Cir. 1993)  (stating that            __________            FSLIC, as  receiver for failed bank,  allowed unsecured claim            by assignee of certificate of deposit  which had been wrongly            paid out to assignor).                                            ____________________            7.  Absent the crediting of the certificate of deposit toward            Guaranty's indebtedness,  the  Commissioner would  have  been            entitled to its proceeds either in his capacity as  assignee,            or in his capacity as Guaranty's receiver.  The FDIC does not            object to the  capacity in which the  Commissioner now brings            this appeal,  and we  therefore assume, without  prejudice to            the district court's ability to determine otherwise, that the            Commissioner seeks recovery in his proper capacity.                                         -12-                                          12            E.  Reverse  Alchemy:   Do Girod's  Pre-failure Actions  Turn            _____________________________________________________________            Gold            ____            into Lead            _________                      With  breathtaking  legerdemain,  the FDIC  assumes            that,  upon   Girod's  crediting  of  the   proceeds  of  the            certificate  of deposit toward  Guaranty's $600,000 debt, the            Fiduciary Assignment  and  the Requisition  were  transformed            into agreements which  tend to diminish the  interests of the            FDIC in an asset for purposes of section 1823(e).  We decline                       _____            to adopt such a rule for three related reasons.                      First, assuming that  the Commissioner's version of            facts is correct,   Girod's crediting  of the certificate  of            deposit toward  Guaranty's  $600,000 loan  and the  resulting            "relationship"  between the  certificate  of deposit  and the            loan,  cannot  be   characterized  as  anything   other  than            ineffective.     At  the  time  that   Girod  "credited"  the            certificate   of   deposit   toward  Guaranty's   outstanding            indebtedness,  the certificate  of deposit  had already  been            validly assigned  to the Commissioner.  Moreover,  as   noted            above,  Puerto   Rico  law  specifically  prohibits creditors            of  insurance  companies  from  levying  upon  the  statutory            deposit  at  issue here.   In  other  words, given  the valid            assignment,   as    well   as   the    additional   statutory            protection it  is afforded, the certificate  of deposit could            never  rightfully   become  security  for  Girod's   loan  to            Guaranty. If the  certificate could  never rightfully  secure                                         -13-                                          13            Guaranty's loan in the  first instance, we see  no principled            way  of  now  holding  that it  is  nonetheless  sufficiently            related  to that loan so as to "diminish" the FDIC's interest            in the loan for purposes of section 1823(e).                      Second, if the bank's  actions in this case somehow            "magically"  transformed  agreements  about  a  deposit  into            agreements  which  diminish the  FDIC's  interest  in a  bank            asset, then all agreements about deposits, even those whereby            a deposit is created, could potentially be subject to section            1823(e).   In other  words, any  time  a bank,  prior to  its            failure, improperly  closed a  passbook  savings account  and            credited the proceeds therein toward outstanding indebtedness            from an  entirely unrelated  account, the depositor  would be            without  remedy, inasmuch  as passbook  savings accounts  are            rarely,  if ever, created with the approval of bank boards of            directors  or  bank   loan  committees.    See  12  U.S.C.                                                          ___            1823(e)(3).   We have no  doubt that Congress  could not have            intended such a result.                      Third,  neither  the Fiduciary  Assignment  nor the            Requisition  constitutes  an  "agreement"  for   purposes  of            section 1823(e).  Cf.  Bateman v. FDIC, 970 F.2d  924, 927-29                              ___  _______    ____            (lst Cir.  1992) (holding  that bank's consent  to mechanics'            lien was not an "agreement" for purposes of section 1823(e)).            The  bank's  "acceptance"  of  the assignment  here  did  not            involve bargaining, consideration,  an exchange of  promises,                                         -14-                                          14            or  many  other   ordinary  accoutrements   of  a   classical            contractual "agreement."   See Langley v. FDIC, 484  U.S. 86,                                       ___ _______    ____            91 (1987) (defining "agreement" as used in section 1823(e) in            terms of  traditional  contract  principles).    Rather,  the            bank's "acceptance"  of the  assignment in this  case appears            very similar  to the mortgagee's "consent"  to the imposition            of  a mechanic's lien in  Bateman.  "Consent"  in Bateman was                                      _______                 _______            required  by state law  to give the  mechanic's lien priority            over the mortgagee's lien.  Bateman, 970 F.2d  at 927-29.  We                                        _______            held there that the  mortgagee's "consent" did not  amount to            an "agreement" for purposes  of section 1823(e).  Id.   Here,                                                              ___            the state  law mechanism  whereby the certificate  of deposit            was  created,  assigned  to  the  Commissioner,  and  further            protected from levying  by creditors is similar  to the state            mechanic's  lien system in Bateman.   Thus, for quite similar                                       _______            practical and conceptual reasons, we reach a similar result.                      As a  final argument urging a  contrary result, the            FDIC  relies heavily on language  on the reverse  side of the            certificate of deposit itself, which states that the proceeds            of the certificate may be applied against the named obligee's            outstanding indebtedness.  The rationale behind this argument            appears to be that this language warned the Commissioner that            Girod  had a  right,  upon maturity  of  the certificate,  to            credit  the   certificate  of  deposit   against  outstanding            indebtedness  on  a  bank   asset,  and  that  therefore  the                                         -15-                                          15            Commissioner, though still  an obligee of  the bank,   should                                           _______            have sought written board approval of the assignment, much as            a D'Oench-wary obligor would.  Again, we disagree.              _______                      First, the  certificate  of  deposit  was,  by  its            terms,  assignable.8   Second,  the  FDIC's  argument  places            depositors  and  their  assignees  essentially  in  the  same            position  as borrowers,  requiring  that  they guard  against            purely  contingent  (and  in  this  case,  contractually  and            statutorily  forbidden) bookkeeping maneuvers  on the part of            the failed bank.   Moreover, in this case, such  an expansive            reading of  the dual  doctrines would penalize   rather  than            reward, a  depositor who, unlike most  other depositors, took            steps  to preserve and memorialize his rights.  We decline to            adopt such a novel and onerous reading of the relevant law.                      We reemphasize  that this case does  not involve an            effort  by a borrower who,  having promised his bank deposits            as  security  for  a  loan, later  attempts  to  destroy that            security  by asserting an oral promise by the bank to release            that security notwithstanding  the prior written  commitment.            Here, the borrower did not promise the certificate of deposit            as  security for its loan  and, indeed, did  not even own the                                            ____________________            8.  Language  on  the  reverse  side of  the  certificate  of            deposit stated:                      The  assignment of this  Certificate to a                      third  party will not be considered valid                      until said transaction has  been notified                      to, and accepted by the bank.                                         -16-                                          16            certificate of deposit at the time it borrowed the money from            the bank, for  it had previously assigned the  certificate of            deposit to the Commissioner.   Moreover, the borrower in this            case, namely Guaranty, is  not claiming any rights at  all to            the  funds at  issue.   Rather, the  sole issue before  us is            whether section  1823(e)   applies to bar  the Commissioner's            claims,  and we conclude that it does not.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  foregoing  reasons,  the  order  of   the            district court entering summary judgment in favor of the FDIC            based upon the application of 12 U.S.C.   1823(e) is                      Reversed  and  remanded  for   further  proceedings                      ___________________________________________________            consistent with this opinion.            _____________________________                                         -17-                                          17
