FEDERAL FINANCIAL COMPANY v. HALL

DIANA GRIBBON MOTZ, Circuit Judge:

This appeal presents a single issue: whether, as a matter of federal law, the statute of limitations applicable to the Resolution Trust Corporation when it acts as receiver also applies to its assignees.

I.

The relevant facts are simple. Michael T. Hall, Trustee, executed a promissory note for $250,000.00 to Piedmont Federal Savings Bank (Piedmont) in Virginia. Hall failed to pay the note when it fell due on August 9, 1990. In October 1992, the Office of Thrift Supervision placed Piedmont into receivership and appointed the Resolution Trust Corporation (RTC) as its receiver. In late 1994 or early 1995, RTC assigned Hall's note to Federal Financial Corporation (FFC), an Illinois partnership. In November 1995, after Hall had refused to pay, FFC filed this diversity action in the Eastern District of Virginia. Hall moved to dismiss, asserting that Virginia's five-year statute of limitations to enforce the payment of a note had expired in August 1995, five years after this note's maturity date.

The parties do not dispute that if the RTC had retained the note, the applicable statute of limitations would have allowed the RTC six years from the date of receivership in which to bring its action. See 12 U.S.C.A. Section(s) 1821(d)(14) (West 1989 Supp. 1996). As the RTC's assignee, FFC claimed that it should receive the benefit of the longer federal statute of limitations applicable to claims brought by the RTC. Unpersuaded, the district court dismissed the claim. Relying on its prior decision in WAMCO, III, Ltd. v. First Piedmont Mortgage Corp., 856 F. Supp. 1076 (E.D. Va. 1994), the court determined that a five-year state statute of limitations governing contract actions applied and barred FFC's cause of action. See Va. Code Ann. Section(s) 8.01-246(2) (Michie 1992). Although we agree with the district court that federal law does not govern the limitations period of assignees of the RTC, because of a recent clarification in state law we must nonetheless reverse.

II.

Our review of this legal question is de novo. See United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied 116 S.Ct. 1890 (1996).

Congress enacted the statute of limitations at issue here as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. 101-73, 103 Stat. 183 (1989). The statute provides, in relevant part:

(14) Statute of limitations for actions brought by conservator or receiver

(A) In general

Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be —

(i) in the case of any contract claim, the longer of —

(I) the 6-year period beginning on the date the claim accrues; or

(II) the period applicable under State law;

. . .

(B) Determination of the date on which a claim accrues

For purposes of subparagraph (A), the date on which the statute of limitations begins to run on any claim described in such subparagraph shall be the later of —

(i) the date of the appointment of the Corporation as conservator or receiver; or

(ii) the date on which the cause of action accrues.

12 U.S.C.A. Section(s) 1821(d)(14) (West 1989 Supp. 1996). While the statute mentions rights of "the Corporation," elsewhere defined as the FDIC, another part of FIRREA gives the RTC the same rights and powers in this context. See 12 U.S.C.A. Section(s) 1441a(b)(4)(A) (West Supp. 1996).

Section 1821(d)(14) is obviously silent with respect to its application to the RTC's assignees. Hall asserts that since the plain language of the statute indicates that Congress took no position on whether assignees also receive the benefit of this federal statute of limitations, assignees are bound by the state statute of limitations originally governing the instrument.

FFC, relying on the overwhelming majority of the state and federal decisions that have addressed the issue, maintains that state law has no place in the analysis. See FDIC v. Bledsoe, 989 F.2d 805 (5th Cir. 1993); Mountain States Fin. Resources Corp. v. Agrawal, 777 F. Supp. 1550 (W.D. Okla. 1991); N.S.Q. Associates v. Beychok, 659 So.2d 729 (La. 1995); Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994) (en banc); Investment Co. of the Southwest v. Reese, 875 P.2d 1086 (N.M. 1994); Jackson v. Thweatt, 883 S.W.2d 171 (Tex. 1994); Cadle Co. II, Inc. v. Lewis, 864 P.2d 718 (Kan. 1993). FFC asserts, as these courts have reasoned, that "courts are to fill the inevitable statutory gaps by reference to the principles of the common law" and while the federal statute is silent, "the common law speaks in a loud and consistent voice: An assignee stands in the shoes of his assignor." Bledsoe, 989 F.2d at 810 (citing, among other sources, 6 Am. Jur.2d Assignments Section(s) 102 (1963) and Restatement (Second) of Contracts Section(s) 336 cmt. b, illus. 3 (1979)).

Even WAMCO III, Ltd. v. First Piedmont Mortgage Corp., 856 F. Supp. 1076 (E.D. Va. 1994), on which the district court relied, accepted this basic approach. Its holding differs from the majority view only because the WAMCO court read the common law differently. Under the WAMCO analysis, the RTC's right to the six-year statute of limitations is "personal to the assignor" and, therefore, under general common law principles, not assignable. WAMCO, at 1086 (citing 6A C.J.S. Assignments Section(s) 76 (1975)). Thus appellant, FFC, and appellee, Hall, share a reliance on general common law principles.

In view of recent Supreme Court guidance, we believe that reliance is misplaced.

III.

The Supreme Court has recently emphasized that cases requiring federal common law rules of decision are "few and restricted." O'Melveny Myers v. FDIC, 114 S.Ct. 2048, 2055 (1994) (citation omitted). Courts should create federal common law rules only "where there is a significant conflict between some federal policy or interest and the use of state law." Id. (citation omitted); Atherton v. FDIC, 117 S.Ct. 666, 670 (1997). See also Resolution Trust Corp. v. Maplewood Invs., 31 F.3d 1276, 1293-94 (4th Cir. 1994) (following Virginia law, not federal common law, in determining whether RTC is a holder in due course).

The technique of using common law principles to "fill the inevitable statutory gaps" finds its roots in Justice Jackson's concurring opinion in D'Oench, Duhme Co. v. FDIC, 315 U.S. 447, 468-72 (1942) (Jackson, J., concurring). Justice Jackson suggested that federal courts should "make [their] own law from materials found in common law sources." But O'Melveny summarily rejected the FDIC's reliance on "[g]enerally [a]ccepted [c]ommon [l]aw [p]rinciples." O'Melveny, at 2053. Furthermore, the D'Oench, Duhme majority (unlike Justice Jackson's concurrence) based its narrow federal rule of decision on strong "federal policy evidenced in the [Federal Reserve] Act to protect [the FDIC], a federal corporation, from misrepresentations . . . ." D'Oench, Duhme, 315 U.S. at 459. Thus, the D'Oench, Duhme holding may well fit into the "few and restricted" cases that the Supreme Court in O'Melveny held do require federal common law rules of decision.

Here, in contrast, there is no "significant conflict" between a federal policy and the use of state law. Admittedly, allowing a state-by-state determination of whether Section(s) 1821(d)(14) applies to the RTC's assignees would disadvantage the federal government by reducing the value and marketability of the RTC's asset pool. But in O'Melveny, the Court found strikingly similar fears did not merit a federal common law rule of decision. O'Melveny, 114 S.Ct. at 2055. Specifically, the court held that state law determined whether a failed SL's knowledge of its officers' fraudulent activity could be imputed to the FDIC as receiver.

In refusing to turn to federal common law, O'Melveny also noted that "[t]he rules of decision at issue here do not govern the primary conduct of the United States or any of its agents or contractors, but affect only the FDIC's rights and liabilities, as receiver, with respect to primary conduct on the part of private actors that has already occurred." O'Melveny, 114 S.Ct. at 2055 (emphasis added). In the case at hand, we are addressing conduct of assignees of the government agency receiver. These assignees are even one step further removed from "the primary conduct of the United States" than the government agency receiver whose role the O'Melveny court found to be too attenuated. We therefore conclude that no federal policy presents a sufficient justification for a federal common law rule of decision applying Section(s) 1821(d)(14) to assignees of the RTC.

Nor do we find persuasive the attempt of Bledsoe and its progeny to analogize to the body of law that has evolved from the majority decision in D'Oench, Duhme Co.. The common law rule created in D'Oench, Duhme protects the FDIC from secret agreements made by a failed bank, a doctrine later codified in 12 U.S.C. § 1823(e). See 12 U.S.C.A. Section(s) 1823(e) (West Supp. 1996) ("No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section . . . shall be valid against the Corporation unless such agreement (A) is in writing . . . ."). We and several other Courts of Appeals have held that the D'Oench, Duhme rule protects the FDIC's assignees as well, even though Section(s) 1823(e) is silent with regard to assignees. See, e.g. Carteret Sav. Bank v. Compton, Luther Sons, 899 F.2d 340 (4th Cir. 1990); Newton v. Uniwest Fin. Corp., 967 F.2d 340, 347 (9th Cir. 1992); Porras v. Petroplex Sav. Ass'n, 903 F.2d 379 (5th Cir. 1990); FDIC v. Newhart, 892 F.2d 47 (8th Cir. 1989). But see Motorcity of Jacksonville Ltd. v. Southeast Bank, 83 F.3d 1317 (11th Cir. 1996) (en banc), vacated sub nom. Hess v. FDIC, 117 S.Ct. 760 (1997) (mem.) (vacating for reconsideration a case holding that the D'Oench, Duhme common law doctrine could exist beyond the limits of Section(s) 1823(e)). FFC argues that when FIRREA was enacted, Congress knew courts applied Section(s) 1823(e) to assignees and assumed that courts would take the same approach in interpreting Section(s) 1821(d)(14). According to FFC, making the new statute of limitations expressly applicable to assignees would have been surplusage.

Undoubtedly, "Congress is presumed to enact legislation with knowledge of the law . . . ." United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc), cert. denied 116 S.Ct. 797 (1996) (citations omitted). In Langley, we applied this principle to determine which elements of a criminal offense had to be performed "knowingly." There, we employed Congress' presumed knowledge of the law to untangle the grammar of a set of statutory provisions. Here, we would be using this presumption to extend a benefit Congress specially created for federal agencies when they act as receivers or conservators to a party unmentioned in the statute. In view of recent Supreme Court pronouncements, we cannot justify this leap.

We recognize the strong policy reasons for a uniform federal rule extending Section(s) 1821(d)(14) to assignees of the RTC. And "[n]o one doubts the power of Congress to legislate rules for deciding cases like the one before us." Atherton, 117 S.Ct. at 670. However, we must remain mere observers in that process, for "when the terms of a statute are clear, . . . courts are `not free to replace . . . [that clear language] with an unenacted legislative intent'" United States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988) (alteration in original) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J., concurring)). "Whether latent federal power should be exercised to displace state law is primarily a decision for Congress, not the federal courts." Atherton, 117 S.Ct. at 670 (citing Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966). See also O'Melveny, at 2054 (refusing to "adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed").

IV.

Accordingly, we look to state law, here Virginia law, to determine the statute of limitations governing the rights of assignees of the RTC. See O'Melveny, 114 S.Ct. at 2053-54 (finding "matters left unaddressed in [FIRREA] are presumably left subject to the disposition provided by state law"); see also FDIC v. Houde, 90 F.3d 600, 604 (1st Cir. 1996) (same).

After the district court decided this case, but before it was argued before us, Virginia's highest court addressed precisely this issue. In Union Recovery Ltd. Partnership v. Horton, 477 S.E.2d 521 (Va. 1996), the Supreme Court of Virginia held that assignees of the RTC do receive the benefit of Section(s) 1821(d)(14). See also National Enterprises, Inc. v. Moore, 948 F. Supp. 567 (E.D. Va. 1996) (relying on Horton to find Section(s) 1821(d)(14) applicable to assignees under Virginia law). Thus, in this case, state law happens to bring us by a different path to the same result that the Bledsoe cases reach through application of federal common law. But this may not always be so and when state and federal law diverge, we believe we must follow state law, unless and until Congress or the Supreme Court directs otherwise.

Therefore, applying Virginia law, we hold that the RTC's six year statute of limitations and later date of accrual passed to FFC with FFC's purchase of Hall's note. For this reason, FFC's claim against Hall was not time-barred, and the district court's decision must be REVERSED.