any wrongdoing. That interpretation appears no longer to be valid.
In Langley v. Federal Deposit Ins. Corp., 484 U.S. 86, 92-93, 108 S. Ct. 396, 401-02, 98 L. Ed. 2d 340 (1987), the Supreme Court held that 12 U.S.C. § 1823(e) barred the makers of a promissory note from asserting against the F.D.I.C., the receiver of a bank, that the bank had fraudulently induced them to enter an agreement by misrepresenting the acreage and quality of land they were purchasing. That section provides, in pertinent part, that "no agreement" tending to diminish or defeat the interest of the F.D.I.C. in the assets it acquired is valid unless the agreement was, among other things, in writing. While treating the statute as a partial codification of the D'Oench, Duhme decision, the Supreme Court relied on that decision in holding that an "agreement" included the entire bargain of the parties.
In light of Langley any exception to D'Oench, Duhme for "wholly innocent" victims of fraud is extremely narrow. The Ninth Circuit has limited its Meo opinion to situations where the bank's fraud took place after the maker signed documents. Federal Deposit Ins. Corp. v. Zook Bros. Const. Co., 973 F.2d 1448, 1452 (9th Cir. 1992). Other courts of appeal have not followed Meo. See, e.g., Federal Deposit Ins. Corp. v. Payne, 973 F.2d 403, 407 (5th Cir. 1992) ("the Langley Court destroyed the 'wholly innocent borrower' exception to the D'Oench, Duhme doctrine"); In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1347-48 (1st Cir. 1992).
Here defendant says that he entered into the loan with Amalgamated with the understanding that Fleetway would assume the repayment obligation. But the facts supporting defendant's fraud defense do not appear in any documents relating to the loan transaction. Even if defendant was an innocent victim of a fraudulent scheme between Amalgamated and Fleetway, he may not raise that fraud as a defense to payment on the Note.
Defendant's remaining affirmative defenses are similarly unavailing. The D'Oench, Duhme doctrine prohibits defendant from raising the affirmative defenses of waiver and failure of consideration. See Federal Deposit Ins. Corp. v. Bernstein, 944 F.2d 101, 108 (2nd Cir. 1991) (failure of consideration not an available defense); Federal Deposit Ins. Corp. v. Gulf Life Ins. Co., 737 F.2d 1513, 1518 (11th Cir. 1984) (FDIC's rights in asset not limited by defenses of waiver, estoppel, or unjust enrichment); see generally Vernon v. Resolution Trust Corp., 907 F.2d 1101, 1106 (11th Cir. 1990).
Likewise, defendant may not assert the defenses of accord and satisfaction, laches, or failure to mitigate. 12 U.S.C. § 1787(p)(2); Federal Deposit Ins. Corp. v. Hoover-Morris Enterprises, 642 F.2d 785, 787-88 (5th Cir. Unit B 1991) (D'Oench, Duhme precludes accord and satisfaction defense); Federal Deposit Ins. Corp. v. Roldan Fonseca, 795 F.2d 1102, 1108 (1st Cir. 1986) (laches not applicable in action brought by FDIC in corporate capacity); Federal Savings and Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1044, 1053 (N.D.Cal. 1988) (banking agency need not show mitigation of damages).
Based on the language in the Note quoted above, plaintiff requests attorney's fees and costs of $ 2,725. Plaintiff's attorney, Darren T. Kaplan, based this amount on 18 hours worked at the rate of $ 150/hour and $ 25 for service of process. The court will allow the attorney's fees and costs in the amount requested.
The court grants plaintiff's motion and directs entry of judgment for $ 35,425.50, interest at 15% from January 9, 1988, and attorney's fees and costs in the amount of $ 2725.
Dated: Brooklyn, New York
December 27, 1994
Eugene H. Nickerson, U.S.D.J.
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