Federico v. Brockton Credit Union

Federal Deposit Insurance Corporation. National Credit Union Administration. Credit Union. Bank. Mortgage, Federal insurance. KASS, J. Under the doctrine developed in D'Oench Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 459-462 (1942), later codified in 12 U.S.C. § 1823(e)(1) (1994), an agreement between a bank and a borrower does not bind the Federal Deposit Insurance Corporation (FDIC) or its assignees unless: (1) the agreement is in writing; (2) was executed by the bank and the borrower contemporaneously with the note that is evidence of the borrower's debt; (3) the agreement was approved by the board of directors of the bank; and (4) it has continuously been part of the official bank records. 2 See Federal Sav. & Loan Ins. Corp. v. Griffin, 935 F.2d 691, 698 (5th Cir. 1991), cert. denied, 502 U.S. 1092 (1992); Fleet Bank of Maine v. Steeves, 785 F. Supp. 209, 213 (D. Me. 1992); Fleet Bank of Maine v. Prawer, 789 F. Supp. 451, 454-455 (D. Me. 1992). The same codification of the D'Oench, Duhme, principles applies to National Credit Union Administration Board liquidations of credit unions. See 12 U.S.C. § 1787(p)(2) (1994). The question in the instant case is whether a bank commitment letter for a residential mortgage loan was a sufficiently contemporaneous and official bank document so that it may be considered as evidence that the interest rate set forth in a mortgage note was misstated. A Superior Court Judge allowed the Brockton Credit Union's motion to dismiss the plaintiffs' complaint 3 under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), 4 and the Federicos have appealed. We affirm.