                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                                    ________________               U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         January 26, 2004
                                     No. 02-16334
                                                                      THOMAS K. KAHN
                                 ________________                           CLERK
                         D.C. Docket No. 01-01961-CV-CAM-1

JOHN ACEVEDO,

                                                                  Plaintiff-Appellant,

                                            versus

FIRST UNION NATIONAL BANK,
a foreign banking corporation,

                                                                  Defendant-Appellee.

                                    ________________

                  Appeal from the United States District Court for the
                               Southern District of Florida
                                _________________

                                    (January 26, 2004)

Before TJOFLAT, BIRCH and GOODWIN*, Circuit Judges.

GOODWIN, Circuit Judge:

       Plaintiff John Acevedo appeals the district court’s ruling that he cannot hold

   *
       Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
defendant First Union National Bank (“First Union”) liable for cashier’s checks

issued by a failed bank but included in the failed bank’s assets and liabilities

accepted by First Union. Under 12 U.S.C. § 1822(e), First Union has no liability

for deposits not claimed within eighteen months after the Federal Deposit

Insurance Corporation (the “FDIC”) mails notice to the last-known address of the

depositor. 12 U.S.C. § 1822(e) (Supp. IV 1992) (amended 1993). However,

because there is no evidence that the FDIC mailed the requisite notice, we reverse

and remand to the district court.

      A.     Background

      In July 1981, Southeast Bank in Miami, Florida, issued five cashier’s

checks, totaling $450,000, to five named payees. Four of the cashier’s checks

were in the amount of $100,000 and were issued to Roberto Sanchez, Alvaro

Ocampo, Eugenio Echavarria and Juan Santamaria, respectively. The remaining

cashier’s check was in the amount of $50,000 and was issued to Armando

Caycedo. In August 1981, in Colombia, South America, Juan Diaz claims to have

received the cashier’s checks from Sanchez.

      Ten years later, in 1991, Southeast Bank failed, and the FDIC, as Southeast

Bank’s receiver, entered an Assistance Agreement with First Union. The

Assistance Agreement provided that First Union would assume Southeast Bank’s

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liability for outstanding demand deposits, including cashier’s checks. In relevant

part, section 2.1 of the Assistance Agreement provides:

            2.1 Liabilities Assumed by Assuming Bank. (a) The Assuming
      Bank hereby expressly assumes at Book Value . . . and agrees to pay,
      perform, and discharge all of the following liabilities (and only the
      following liabilities) of the Failed Bank as of Bank Closing . . . :

      (i)   demand Deposits, including outstanding cashier’s checks and
            other official checks, and time and savings Deposits . . . .

To cover the liabilities, the FDIC transferred funds to First Union. Section 2.3 of

the Assistance Agreement required First Union to return the transferred funds to

the FDIC if, within eighteen months after Southeast Bank’s closing, any depositor

had not claimed an unpaid deposit. In relevant part, section 2.3 of the Assistance

Agreement provides:

             2.3 Unclaimed Deposits. If, within eighteen (18) months after
      Bank Closing, any depositor of the Failed Bank does not claim or
      arrange to continue such depositor’s Deposit assumed pursuant to
      Section 2.1 at the Assuming Bank, the Assuming Bank shall, within
      fifteen (15) Business Days after the end of such eighteen (18) -month
      period, (i) refund to the Corporation the amount of each such Deposit
      (without reduction for service charges), (ii) provide to the
      Corporation a schedule of all such refunded Deposits in such form as
      may be prescribed by the Corporation, and (iii) assign, transfer,
      convey and deliver to the Receiver all right, title and interest of the
      Assuming Bank in and to Records previously transferred to the
      Assuming Bank and other records generated or maintained by the
      Assuming Bank pertaining to such Deposits.

      In 1996, also in Colombia, Acevedo claims to have received the cashier’s

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checks from Diaz to satisfy a debt. In 2001, Acevedo, through his attorney,

tendered the five cashier’s checks to First Union for payment, but First Union

refused to honor them.

      Acevedo initially brought suit in state court, but First Union removed the

action to the Northern District of Georgia. On the parties’ cross-motions for

summary judgment, the district court granted summary judgment for First Union.

The court concluded that First Union was no longer liable for the cashier’s checks

because it had complied with the Assistance Agreement by returning the funds

representing the unclaimed deposits.

      B.     Standard of Review

      This court reviews de novo a district court’s grant of summary judgment,

applying the same standards applied by the district court. Valley Drug Co. v.

Geneva Pharm., Inc., 344 F.3d 1294, 1303 (11th Cir. 2003) (citing Bailey v.

Allgas, Inc., 284 F.3d 1237, 1242 (11th Cir. 2002)).

      A motion for summary judgment is properly granted when "the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). After adequate time for discovery and upon motion, summary judgment

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should be entered against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and on which

that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). On a summary judgment motion, the record and all reasonable

inferences must be viewed in the light most favorable to the non-moving party.

Nat’l Fire Ins. Co. of Hartford v. Fortune Const. Co., 320 F.3d 1260, 1267 (11th

Cir. 2003).

      C.      Discussion

      Acevedo argues that First Union remains liable for the cashier’s checks

despite returning the underlying funds to the FDIC. Acevedo also contends that

First Union can rely on § 1822(e) only if it presents evidence that the FDIC mailed

notice to each depositor’s last-known address. First Union responds that,

according to the Assistance Agreement and § 1822(e), its liability for the cashier’s

checks ended when it refunded the unclaimed deposits.

      We begin by observing that First Union became liable for the cashier’s

checks by entering an Assistance Agreement with the FDIC, not by merging with

Southeast Bank under 12 U.S.C. § 215a, as Acevedo has argued. When Southeast

Bank failed, the FDIC, as its insurer, was required either to pay the insured

deposits in cash or to “mak[e] available to each depositor a transferred deposit . . .


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in another insured depository institution . . . in an amount equal to the insured

deposit of such depositor . . . .” § 1821(f)(1); see also Lawson v. Fed. Deposit Ins.

Corp., 3 F.3d 11, 13 (1st Cir. 1993). The FDIC chose the latter option, commonly

called a “purchase and assumption,” see E.I. du Pont de Nemours and Co. v. Fed.

Deposit Ins. Corp., 32 F.3d 592, 595 (D.C. Cir. 1994), and arranged to sell certain

assets of Southeast Bank to First Union, with the agreement that First Union

would assume the corresponding deposit liabilities. The opening paragraph of the

Assistance Agreement identifies the parties to the agreement as the FDIC, in its

capacity as the receiver of Southeast Bank, and First Union.

      A “deposit” for purposes of the Federal Deposit Insurance Act, which

governs the Assistance Agreement in this case, includes, inter alia, an

“outstanding draft[,] . . . cashier’s check, money order, or other officer’s check

issued in the usual course of business for any purpose, including without being

limited to those issued in payment for services, dividends, or purchases . . . .” 12

U.S.C. § 1813(l)(4). Interpreting § 1813(l)(4), the Tenth Circuit concluded that

outstanding and unpaid cashier’s checks were converted, upon the bank’s

insolvency, from negotiable instruments to unclaimed deposits by operation of

law. Fed. Deposit Ins. Corp. v. McKnight, 769 F.2d 658, 661 (10th Cir. 1985).

Accordingly, the cashier’s checks in that case were no longer governed by the


                                          6
“special rules” applicable to negotiable instruments. Id. Likewise, when

Southeast Bank failed, the cashier’s checks became unclaimed deposits.

Thus, we turn our attention to the Assistance Agreement.

      The district court concluded that First Union’s liability ceased when it

complied with the Assistance Agreement by returning the unclaimed deposits to

the FDIC. However, section 2.1 of the Assistance Agreement discusses First

Union’s liabilities, but does not limit those liabilities to the passing of a specified

time or the occurrence of certain event. Similarly, section 2.3 details First Union’s

obligation to return the funds earmarked for the unclaimed deposits, but does not

expressly shift the liability for an unclaimed deposit back to the FDIC. Finding

nothing in the Assistance Agreement that expressly terminates First Union’s

liability, we cannot accept the district court’s conclusion. Our inquiry does not

end, however, because “[t]his court will affirm a grant of summary judgment if it

is correct for any reason.” United States v. $121,100.00 in U.S. Currency, 999

F.2d 1503, 1507 (11th Cir. 1993). We next consider the statute that governs

unclaimed deposits.

      Section 1822(e) states that “[i]f, after the Corporation shall have given at

least three months’ notice to the depositor by mailing a copy thereof to his last-

known address appearing on the records of the depository institution in default,


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any depositor in the depository institution in default shall fail to claim his insured

deposit . . . within eighteen months after the appointment of the receiver for the

depository institution in default . . . all rights of the depositor . . . against the new

bank . . . with respect to the transferred deposit, shall be barred . . . .” § 1822(e).1

We interpret § 1822(e) as barring the depositor’s rights against the bank that

assumed the deposit if the depositor has neglected to claim an insured deposit

after the FDIC mailed notice to depositor’s last known address. See id. Simply

put, Congress has preconditioned the preclusive effect of the statute on the mailing

of notice by the FDIC. It follows that the party seeking refuge under the statute

bears the burden of demonstrating that the FDIC mailed the appropriate notice.

       Here, no depositor presented the cashier’s checks within eighteen months

after a receiver was appointed for Southeast Bank in 1991. This neglect resulted

in the depositor’s rights against First Union being barred if the FDIC mailed notice

to the depositor’s last known address appearing on the failed bank’s records.2



   1
       In 1993, Congress amended 12 U.S.C. § 1822(e), but instructed that the former version of
§ 1822(e) apply to banks placed in receivership between January 1, 1989, and June 28, 1993. See
Commonwealth of Mass. v. Fed. Deposit Ins. Corp., 102 F.3d 615, 618 (1st Cir. 1996);
Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37, 40 (D.C. Cir. 1999).
   2
       We note that, while Acevedo may presently constitute the depositor, and while Diaz may
have constituted the depositor at the time of Southeast Bank’s insolvency in 1991, under
§ 1822(e) the FDIC was only required to mail notice to the last-known address of the depositor
appearing on Southeast Bank’s records. See § 1822(e).

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However, because the record contains no evidence that the FDIC mailed the

requisite notice, much less to whom notice must have been sent, we remand to the

district court for further proceedings.

      D.     Conclusion

      We hold that for § 1822(e) to bar a depositor’s rights against a bank that

assumed the insured deposit, there must be evidence that the FDIC mailed notice

to the depositor’s last-known address appearing on the failed bank’s records. The

district court did not make such a finding, concluding instead that the Assistance

Agreement controlled First Union’s liability for the cashier’s checks. We reverse

the summary judgment as premature and remand for a determination whether the

FDIC satisfied the notice provision in § 1822(e).

      REVERSED and REMANDED.




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