FDIC v. Gerald L. Nordbrock

No. 96-1481
___________
Federal Deposit Insurance *
Corporation, in its corporate *
capacity, *
*
Plaintiff-Appellee, *
* Appeal from the United States
Norwest Bank, National * District Court for the District
Association, A National * of Nebraska.
Banking Association, *
*
Intervenor Plaintiff, *
*
v. *
*
Gerald L. Nordbrock, *
*
Defendant-Appellant. *
___________
Submitted: September 9, 1996
Filed: December 6, 1996
___________
Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.
___________
BRIGHT, Circuit Judge.
The Federal Deposit Insurance Corporation (FDIC), in its
corporate capacity, sued Gerald L. Nordbrock, a resident of
Nebraska, on a promissory note. The district court1 granted
summary judgment for the FDIC.
Nordbrock contends that the applicable statute of limitations
under the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 (FIRREA), 12 U.S.C. § 1821 (1994), bars this action.
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
Nordbrock also contends that the district court erred in rejecting
his affirmative defense of laches. We affirm.
I. BACKGROUND
The facts are not in dispute. In the late 1970's, Gerald L.
Nordbrock acquired the Mt. Pleasant Bank and Trust Company in Iowa.
Nordbrock subsequently began a lending relationship with the State
Bank of Cuba (Cuba Bank), which was organized and existed under
Illinois state law.
In 1981, Nordbrock borrowed $168,000 from Cuba Bank and signed
a promissory note. Nordbrock and Cuba Bank renewed the note four
times during the next three years, eventually executing the
promissory note of June 29, 1984, at issue here, for the principal
amount of $264,820.54. The note contained a contractual choice of
law provision requiring that Illinois law governed the contract.
On June 29, 1985, the note matured and Nordbrock began making
payments. On August 26, 1985, Nordbrock paid $5,000 and on
September 1, 1986, he paid $2,000.
In January 1987, the Illinois Commissioner of Banks ordered
that Cuba Bank be closed. The FDIC was subsequently appointed
receiver of Cuba Bank and Nordbrock's 1984 promissory note was
among the assets purchased by the FDIC as receiver. Between 1988
and 1990, Nordbrock unsuccessfully attempted to negotiate a
settlement with the FDIC. On June 13, 1994, the FDIC filed suit
against Nordbrock for $264,820.54, approximately seven years after
the FDIC purchased the note.
On January 4, 1996, the United States District Court for the
District of Nebraska granted the FDIC's motion for summary judgment
and denied Nordbrock's cross-motion for summary judgment. The
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court held that the FDIC's action was not time barred and that
there were no genuine issues of material fact concerning
Nordbrock's liability on the promissory note. The district court
also denied Nordbrock's affirmative defenses of laches, estoppel
and waiver. The district court entered judgment against Nordbrock
in the amount of $634,484.74 for principal and interest due on the
promissory note.
II. DISCUSSION
"We review the district court's grant of summary judgment de
novo." Landreth v. First Nat'l Bank, 45 F.3d 267, 268 (8th Cir.
1995). This review requires us to "determine whether the evidence,
viewed in the light most favorable to the nonmoving party, shows
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Id.
We also review the district court's application of Nebraska's
choice of law rules de novo. Enron Corp. v. Lawyers Title Ins.
Corp., 940 F.2d 307, 312 (8th Cir. 1991) (citing Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991)). "[A] federal
district court sitting in Nebraska must follow Nebraska's conflict
of laws rules." Modern Computer Systems, Inc. v. Modern Banking
Systems, Inc., 858 F.2d 1339, 1342 (8th Cir. 1988) (citation
omitted).
A.
Jurisdiction in this matter is based upon the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, 12
U.S.C. § 1821 (1994). FIRREA provides the appropriate statute of
limitations for actions brought under the statute:
Notwithstanding any provision of any contract, the
applicable statute of limitations with regard to any
action brought by the [FDIC] as conservator or receiver
shall be--
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(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. . . .
12 U.S.C. § 1821(d)(14)(A). Thus, FIRREA provides for a minimum
statute of limitations of six years, which may be extended if the
applicable state law statute of limitations is longer.
Nebraska has a five-year statute of limitations, Neb. Rev.
Stat. § 25-205 (1995), and Illinois has a ten-year statute of
limitations, 735 Ill. Comp. Stat. Ann. 5/13-206 (West 1992). The
FDIC's claim accrued, at the latest, on January 9, 1987, and the
FDIC commenced this action on June 13, 1994. Accordingly, unless
FIRREA's six-year statute of limitations is extended by the
Illinois statute of limitations, the suit is time-barred. In order
to make this determination, we must consider the statute of
limitations period otherwise applicable under Nebraska law. 12
U.S.C. 1821(d)(14)(A)(i)(II). This requires an examination of
Nebraska's choice of law principles.
The district court utilized section 142 of the Restatement
(Second) of Conflict of Laws (1989) to determine whether the
statute of limitations under Nebraska or Illinois law should apply
according to Nebraska state law. Add. at 9. After applying
section 142, the district court determined that Illinois had the
most significant relationship to this matter and that the Illinois
statute of limitations for actions on written contracts applied
under Nebraska's choice of law rules. Add. at 11.
Nordbrock contends that the district court erred by utilizing
section 142 of the Restatement (Second) of Conflict of Laws (1989)
and, alternatively, that even under section 142 the district court
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erred in finding that Illinois had the most significant
relationship.
1.
As a preliminary matter, the promissory note contained a
choice of law provision requiring that Illinois law governed the
contract. The district court observed that this contractual choice
of law provision was inapplicable to the resolution of this matter
because such provisions only incorporate substantive law and
statute of limitations issues, under Nebraska law, are procedural.
Add. at 8. The district court is correct in stating that Nebraska
considers its statute of limitations as procedural, Whitten v.
Whitten, 548 N.W.2d 338, 340 (Neb. 1996), however, it is
unnecessary to undertake this analysis because FIRREA expressly
excludes consideration of "any provision of any contract"
concerning the statute of limitations. 12 U.S.C. § 1821(d)(14)(A).
Accordingly, the statute of limitations question falls beyond the
ambit of the contractual choice of law provision.
The district court then examined the choice of law rules
applied by Nebraska courts and determined that Nebraska utilizes
section 142 of the Restatement (Second) of Conflict of Laws in
determining the appropriate statute of limitations. Add. at 9.
Nordbrock argues this was improper and contends that, because
statute of limitations are procedural, Nebraska's statute of
limitations must apply.
Nebraska courts have not directly addressed this question.
However, the Nebraska Supreme Court, as a general matter, utilizes
the Restatement (Second) for issues relating to a choice of law,
Harper v. Silva, 399 N.W.2d 826, 828 (Neb. 1987); Cockle v. Cockle,
339 N.W.2d 63, 66 (Neb. 1983), and specifically adopts the approach
set forth in section 188 of the Restatement (Second) of Conflict of
Laws to determine the choice of law applicable to a contract
action. Powell v. American Charter Fed. Sav. & Loan Ass'n, 514
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N.W.2d 326, 331-332 (Neb. 1994). Furthermore, the Eighth Circuit
recognizes that Nebraska adheres to the Restatement (Second) of
Conflict of Laws in other contexts. See Enron Corp. v. Lawyers
Title Ins. Corp., 940 F.2d 307, 312 (8th Cir. 1991); Modern
Computer Systems, Inc. v. Modern Banking Systems, Inc., 858 F.2d
1339, 1342 (8th Cir. 1988).
We conclude that the district court correctly determined that
Nebraska law utilizes section 142 of the Restatement (Second) of
Conflict of Laws (1989) to determine Nebraska's choice of law for
the applicable statute of limitations.
2.
After determining that section 142 of the Restatement (Second)
of Conflict of Laws must be utilized, the district court correctly
applied the seven factors presented in section 6 as required by
section 142. Section 142 states:
Whether a claim will be maintained against the defense of
the statute of limitations is determined under the
principles stated in § 6. In general, unless the
exceptional circumstances of the case make such a result
unreasonable:
(1) The forum will apply its own statute of limitations
barring the claim.
(2) The forum will apply its own statute of limitations
permitting the claim unless:
(a) maintenance of the claim would serve no
substantial interest of the forum; and
(b) the claim would be barred under the
statute of limitations of a state having
a more significant relationship to the
parties and the occurrence.
Restatement (Second) of Conflict of Laws § 142 (1989).
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The factors listed in section 6 of the Restatement (Second) of
Conflict of Laws are as follows:
(a) the needs of the interstate and international
systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and
the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field
of law,
(f) certainty, predictability and uniformity of result,
and
(g) ease in the determination and application of the law
to be applied.
The district court correctly concluded that the factors
presented in section 6 indicate that Illinois is the state with the
most significant relationship to this matter. Add. at 10.
Although Nordbrock is a Nebraska citizen and the note was executed
in that state, a larger number of significant factors indicate that
Illinois has a more significant relationship. The district court
outlined these factors as follows:
[Nordbrock] signed the promissory note as evidence of his
indebtedness to an Illinois bank. Pursuant to his
promissory note, Nordbrock received funds from an
Illinois lender and has agreed to be bound by Illinois
law concerning any action on the promissory note.
Moreover, Nebraska's policy of protecting one of its
citizens from "stale" claims is outweighed by Illinois'
interest in protecting the assets of its financial
institutions.
Add. at 10-11.
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We agree with the district court that these factors
demonstrate that Illinois has the most significant relationship to
this matter. The six-year statute of limitations under FIRREA is
therefore extended by the application of the ten year Illinois
statute of limitations.
A recent Nebraska Supreme Court case, Whitten v. Whitten, 548
N.W.2d 338 (Neb. 1996), does not dictate a different result. In
that case, plaintiff Rodney Whitten and his former wife Carol Ann
Whitten were involved in a car accident in Colorado. Id. at 339.
They were married at the time of the accident. Id. Rodney
Whitten, a passenger in the car, sued his former wife Carol Ann
Whitten, the driver of the vehicle, for injuries sustained as a
result of her negligence. Id. The case was tried in Nebraska and
the trial court applied Colorado's statute of limitations and the
jury returned a verdict for the defendant. Id. at 340.
The Nebraska Supreme Court affirmed on the ground that the
suit was barred by the Nebraska statute of limitations:
Because application of the statute of limitations is
a procedural matter, Nebraska's statute of limitations
governed, rather than that of Colorado, the state where
the cause of action allegedly rose. An action for an
injury to the rights of the plaintiff, not arising on
contract, can only be brought within 4 years. . . . The
record reflects that the plaintiff brought this
negligence action more than 5 years after the date that
he alleged the accident occurred. As a result, his
lawsuit against the defendant was barred by Nebraska's
statute of limitations.
Id. (citation omitted).
This case is not dispositive. Under section 142, the general
rule is that the forum will apply its own statute of limitations.
There is nothing to suggest from the facts in Whitten that the
court did anything any other than simply apply this general rule.
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In short, the Nebraska Supreme Court was not presented with the
unique factual setting presented here requiring an examination of
the factors under section 6 of the Restatement.
Accordingly, the Nebraska choice of law provision applies
here. The period applicable under state (Nebraska) law is the ten-
year statute of limitations of Illinois, and that period applies
under FIRREA.
II.
Finally, Nordbrock argues that the district court erred in
granting summary judgment as to his laches defense. In order to
prevail on this claim, Nordbrock must establish the following:
"(1) Conduct on the part of the defendant giving rise to
the situation of which complaint is made and for
which the complainant seeks a remedy;
(2) delay in asserting the complainant's rights, the
complainant having had notice or knowledge of
defendant's conduct and the opportunity to
institute a suit;
(3) lack of knowledge or notice on the part of the
defendant that the complainant would assert the
right on which he bases his suit, and
(4) injury or prejudice to the defendant in the event
relief is accorded to the complainant or the suit
is held not to be barred."
Slatin's Properties, Inc. v. Hassler, 291 N.E.2d 641, 643-44 (1972)
(quoting Pyle v. Ferrell, 147 N.E.2d 341, 344 (1958)).
An application of these factors to the facts of this case,
when considered in the light most favorable to Nordbrock, dictates
a finding that Nordbrock's laches defense must fail. First,
Nordbrock entered into the loan knowing that it needed to be
repaid. Second, although the FDIC delayed bringing this action,
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the action was brought three years before the Illinois statute of
limitations expired. Third, there was no reason for Nordbrock to
believe that the FDIC would fail to bring this action eventually.
The record shows that Nordbrock attempted to negotiate a settlement
with the FDIC. Finally, we agree with the district court that
there is no evidence of prejudice to Nordbrock in allowing the FDIC
to bring this action at this time.
Accordingly, the opinion of the district court is AFFIRMED.
LOKEN, Circuit Judge, concurring.
I concur but note two caveats regarding the court's analysis.
First, we follow Nebraska's choice of law rules only if state law
governs the underlying claim, or if governing federal law instructs
us to apply the forum state's choice of law rules. Here, federal
law (FIRREA) governs the underlying claim. The relevant statute
tells us to look to the federal statute of limitations, or
alternatively to any longer period "applicable under State law."
12 U.S.C. § 1821(d)(14)(A)(i)(II). This is not an unambiguous
mandate to apply the forum's state's choice of law rules in
deciding what alternative state statute of limitations is
"applicable." In my view, it seems more consistent with FIRREA's
purposes to apply uniform federal choice of law rules in making
that determination, particularly because the choice of law rules
applied by some state courts in selecting an appropriate statute of
limitations seem dominated by doctrinal fictions and result-
oriented parochialism. However, if I am right that the choice of
law standard should be federal, I nonetheless agree with the
standard the court has applied and with its application to the
facts of this case. Thus, my concern with the court's choice of
law analysis does not affect the outcome in this case.
Second, I would summarily reject Nordbrock's laches claim
because "separation of power principles dictate that federal courts
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not apply laches to bar a federal statutory claim that is timely
filed under an express federal statute of limitations." Ashley v.
Boyle's Famous Corned Beef Co., 66 F.3d 164, 170 (8th Cir. 1995)
(en banc).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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