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Judge wants Congress to reconsider FDIC’s rights when taking over a bank

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In a case that hinges on the distinction between direct and derivative claims, the 7th Circuit Court of Appeals decided that a failed bank can pursue two claims against former managers.

Irwin Financial Corp. subsidiaries Irwin Union Bank & Trust and Irwin Union Bank, FSB were closed in 2009 and taken over by the Federal Deposit Insurance Corp. The banks’ asset portfolios were dominated by mortgage loans, whose values plummeted in 2007 and 2008.

Elliott Levin, as Irwin Financial’s trustee in bankruptcy, sued three of the company’s directors and officers in an attempt to recover money. The FDIC intervened because whatever Levin collects, the FDIC will not be able to collect from the managers. The FDIC argues that most of Irwin Financial’s claims now belong to it under 12 U.S.C. Section 1821(d)(2)(A)(i).

Counts 1, 2, 4 and 5 of Irwin Financial’s complaint allege the managers violated their fiduciary duties to Irwin Financial by not implementing additional controls that would have protected the company from the managers’ errors in their roles as directors of the bank. The managers allowed the banks to specialize in the types of mortgages hard-hit in 2007 and 2008.

Count 3 alleges the managers allowed Irwin to pay dividends in amounts that left it short of capital when the housing bubble burst; and count 7 claims two of the managers breached their duties of care and loyalty when they “capitulated” to the FDIC and caused Irwin to contribute millions of dollars to new capital in the banks.

Judge Sarah Evans Barker in Indianapolis dismissed all of the claims after concluding all of the claims belong to the FDIC. The FDIC on appeal conceded that counts 3 and 7 belong to the bank, a result the 7th Circuit also found.

Indiana treats a stockholder’s claim as derivative if the corporation itself is the loser and the investor is worse off because the value of the firm’s stock declines, which is a good description of the theory behind counts 1, 2, 4 and 5, the 7th Circuit held.

The FDIC, not Irwin, owns any claim against the manager that depends on the choices made as director or employees of the banks, the judges held. And count 3 was prematurely dismissed, because the court did not dismiss it on the merits. The parties need to explore how Indiana’s version of the Business Judgment Rule applies to the managers’ activities with respect to information and distributions, wrote Judge Frank Easterbrook.

Count 7 also alleges a claim that the FDIC could not pursue as the banks’ successor. The judges remanded for further proceedings on counts 3 and 7.

Judge David Hamilton joined the majority opinion and believes this case “raises some broader policy questions that deserve consideration by the FDIC and Congress, including why the direct/derivative distinction should still matter, either under the current version of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, see 12 U.S.C. §1821(d)(2)(A), or perhaps other statutory amendments that Congress may want to consider.”

“Any student of the Great Depression who remembers the ‘runs’ on banks can appreciate those roles. But this case at its core presents a troubling effort. The holding company structure and the direct/derivative dichotomy are being used in ways that could allow those who ran the banks into the ground to take for themselves some of the modest sums available to reimburse the FDIC for a portion of the socialized losses they inflicted. If that result is not contrary to federal law, it should be.”

The case is Elliott D. Levin, as trustee in bankruptcy for Irwin Financial Corp. v. William I. Miller, et al., 12-3474.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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