Nulph v. Federal Deposit Insurance

Opinion

FUKUTO, J. Plaintiffs appeal from the trial court’s grant of summary judgment on behalf of the Federal Deposit Insurance Corporation (FDIC), as receiver for West Coast Bank. We reverse.

The sole issue in this case is whether appellants’ failure to file a creditor’s claim bars them from continuing their action against West Coast Bank filed prior to the bank’s failure and the FDIC’s acceptance of receivership.

On March 17, 1982, appellants filed a verified complaint against West Coast Bank, and a verified first amended complaint on April 20, .1983, alleging fraud, conspiracy and negligence and seeking recission and cancellation of a deed of trust. On July 1, 1983, West Coast Bank filed its verified answer to the first amended complaint.

On April 27,1984, over two years after the filing of the original complaint, the superintendent of banks for the State of California closed West Coast Bank and took possession of the bank’s property and business pursuant to its statutory authority. On the same date, the FDIC accepted receivership.

On May 4, 1984, the FDIC published a notice to creditors of the bank, pursuant to Financial Code section 3117, calling on all persons with claims against the bank to present them to the receiver within four months of the date the notice was first published. Appellants admit they did not file a claim in response to the published notice.

On February 5, 1985, the FDIC substituted into the action in the place of West Coast Bank as the real party in interest. On August 30,1985, approxi[1119]mately three and one-half years after appellants first filed suit and some one and one-half years after the FDIC accepted receivership, the FDIC filed this motion for summary judgment. The lower court granted respondent’s motion predicated solely upon the fact that “[p]laintiff[s] failed to file the required claim pursuant to Financial Code 3118.”

Appellants contend on appeal that the action is not barred because they substantially complied with the claims filing requirements; that the FDIC is estopped to assert the bar and, for the first time, appellants assert that because they have always been in a “defensive posture,” they are not “creditors” and, thus, were not required to file a claim. We need not consider these contentions since we are of the opinion that Financial Code section 3118 does not apply to the facts in the present case.