1 Each check was purchased with funds from one of Safeco's three escrow accounts. The first

check was in the amount of $419,779.47 leaving a balance of $33,691.38 in that account. The

second check was in the amount of $309,112.31 leaving a balance of $63,012.97. The third

check was in the amount of $712,464.34 leaving a balance of $9,178.70. Each check listed

"Safeco Land Title of Tarrant" as both remitter and payee. The checks did not indicate that they

represented escrowed funds. United States Court of Appeals,

Fifth Circuit.

No. 93-4234

Summary Calendar.

METRO COUNTY TITLE, INC., d/b/a Safeco Land Title of Tarrant County, Petitioner,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent.

Feb. 10, 1994.

Petition for Review of Final Order of the Federal Deposit Insurance Corporation.

Before POLITZ, Chief Judge, KING and WIENER, Circuit Judges.

POLITZ, Chief Judge:

Metro County Title, Inc. d/b/a Safeco Land Title of Tarrant County ("Safeco") seeks review

of the FDIC's partial denial of deposit insurance coverage for cashier's checks purchased with funds

from Safeco's escrow accounts. We deny review.

Background

Safeco entered into an agreement with First City Bank—Dallas which provided that if failure

of the bank appeared imminent First City would issue cashier's checks to Safeco to bring the balances

in Safeco's escrow accounts below th e FDIC's $100,000 deposit insurance limit. On Thursday,

October 30, 1992, a First City officer determined that insolvency was near and issued to Safeco three

cashier's checks t o t aling more than $1.44 million. 1 That same day the Texas State Banking

Commission declared First City insolvent and closed it . The checks were delivered to Safeco the

following Monday.

Safeco met with FDIC claims agents and attorneys a few days later to discuss insurance2 Safeco sought this treatment so that each escrow account would be eligible for the $100,000

protecti on. See 12 C.F.R. § 330.3(a).

3 We have jurisdiction to review final FDIC deposit insurance determinations where, as in the

instant case, the depository institution in question is located within our circuit. 12 U.S.C. §

1821(f)(4). See also Nimon v. Resolution Trust Corp., 975 F.2d 240 (5th Cir.1992). coverage for the three cashier's checks. At t his meeting Safeco insisted that the checks should be

treated as if the funds remained in the escrow accounts. 2 The FDIC determined however, that the

three checks did not reflect the fiduciary capacity in which Safeco purportedly held the funds. On the

face of each check the sole party in interest was Safeco Land Title of Tarrant. As a result the FDIC

concluded that the checks constituted a single $1.44 million deposit owned by Safeco individually,

and it declared this entire deposit eligible for one $100,000 payment.

Safeco sought review of this decision in an appeal to the FDIC, maint aining that First City's

issuance of the cashier's checks was unauthorized and that because the funds for the checks came

from escrow accounts the sums should be returned to those accounts and insured as if the checks had

never been drawn. The FDIC Committee for Secondary Review of Insurance Claims affirmed the

init ial decision, treating the checks as a single aggregated deposit entitled to one insurance limit

. To

date the FDIC has authorized payment of the insured $100,000 together with dividend checks for 907

of the balance. The instant dispute involves the sum of $134,135.

Analysis

Safeco presents three issues for review, 3 first maint aining that the cashier's checks should have

been treated as escrow funds eligible for additional coverage. In hol di ng to the contrary, Safeco

maintains, the FDIC misinterpreted its own regulations and the Federal Deposit Insurance Act and,

in addition, failed to consider relevant evidence. Second, Safeco argues that it did not authorize the

cashier's checks and that the FDIC failed to consider that f a ct. Finally, Safeco contends that the

informal procedure the FDIC followed did not comport with due process.

We review FDIC deposit in surance det erminations with deference, rejecting them only if

found to be arbitrary, capricious, the result of an abuse of discretion, or otherwise not in accordance4 Palermo v. FDIC, 981 F.2d 843 (5th Cir.1993); Louisiana ex rel. Guste v. Verity, 853 F.2d

322, 327 (5th Cir.1988) (administrative decision satisfies arbitrary or capricious standard of

review if agency "articulates a rational relationship between the facts found and the choice made"

and if it "gave at least minimal consideration to relevant facts contained in the record").

5 Nimon.

6 Porter v. Califano, 592 F.2d 770 (5th Cir.1979).

7 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

8 Both the remaining account balances and the unpaid cashier's checks are considered deposits

for purposes of FDIC deposit insurance coverage. 12 U.S.C. § 1813( l ).

9 See also Nimon; FDIC v. McKnight, 769 F.2d 658 (10th Cir.1985). with the law. 4 The FDIC is accorded special deference in the interpretation of its own regulations

and the statutes it enforces. 5 With respect to Safeco's separate due process challenge, we review the

procedure afforded independently, 6 examining the record in light of Mathew s v. Eldridge. 7

A. Escrow

Treatment

The three checks were treated by the FDIC as a single deposit owned by Safeco, a resul t

based on the specifics of the face of each check. Safeco would have us ignore the existence of the

cashier's checks, examine the records of the escrow accounts on which they were drawn, and then

reliev e Safeco of the burden of its aborted effort to orchestrate a circumvention of the FDIC's

coverage limits. This we cannot do.

The general rule regarding treatment of deposits 8 is found in 12 C.F.R. § 330.4: "[T]he FDIC

shall presume that deposited funds are actually owned in the manner indicated on the deposit account

records of the insured depository institution." First City's records reflect that the accounts on which

the checks were drawn were escrow accounts. Safeco errs in its assumption that this general rule

makes the underlying escrow account records dispositive of ownership of the checks after issuance.

As the FDIC notes, under its doctrine of "conclusive account records," when First City was closed

t he checks had been drawn and were no longer part of Safeco's escrow accounts. 9 The FDIC

maintains that the only relevant inquiry is ownership of the cashier's checks, each of which serves as

its own complete account record. Thus focused, the account records when First City was closed

reflect that Safeco held a total of $105,000 in the three escrow accounts and individually owned three10 Ironically, had Safeco not attempted this withdrawal, the escrow accounts likely would have

been better insured. See 12 U.S.C. § 1821(a)(1)(B), (C) (funds held in different capacities are not

aggregated for purposes of insurance; accounts held in trust will often be insured up to $100,000

per account, not $100,000 per deposi tor).

11 12 C.F.R. § 330.4(b)(1). Safeco's suggestion that it need not comply with the FDIC's

recordkeeping requirements is incorrect. While 12 C.F.R. § 330.4(b)(4) exempts negotiated

instruments from strict recordkeeping requirements, by its express language the section does not

apply to cashier's checks received directly from the depository institution.

12 Louisiana ex rel. Guste.

13 For example, the exception found in 12 C.F.R. § 330.4(a) only encourages further inquiry in

cases where it appears the FDIC is being defrauded into giving unwarranted additional coverage.

This provision actually militates against Safeco's position. cashier's checks totaling $1.44 million. 10

Contrary to Saf

eco 's assertions, FDIC regulations do not expressly require the tracing of

ownership interests from the face of a cashier's check back to the account whose funds were used for

the purchase. Indeed, absent express notation on the checks that they represented escrowed funds,

the name, ownership interest, and payee on the face of each check is control ling for purposes of

deposit insurance. 11 That interest herein is Safeco Land Title of Tarrant.

Safeco next urges Texas state law presumptions to the effect that funds in trust have been

used lawfully, which

wo uld support the conclusion that Safeco held the checks in the custodial

capacity reflected in the underlying accounts. These state law presumptions do not displace the

federal conclusive account records doctrine because, as 12 C.F.R. § 330.3(h) explains, "ownership

under state law is not sufficient for, or decisive in, determining deposit insurance."

Finally, relying on the g eneral administrative law requirement that agencies consider all

relevant evidence together with regulations requiring the FDIC to use account records in its deposit

insurance determinations, Safeco argues that the FDIC's ruling was arbitrary and capricious because

it failed to consider the underlying account records. We are not persuaded. An agency need only

consider relevant evidence; 12 the FDIC's reasonable interpretation of its own regulations makes the

face o f a cashier's check the only relevant record for determining its ownership. Few provisions

encourage the FDIC to investigate extraneous records and none cited support Safeco's position. 13

Given t he arbitrary and capricious standard of review and our deference to agency14 The FDIC investigated the authorization issue, contacting the First City bank officer who

issued the checks. An FDIC memorandum indicates that the officer may have issued the checks

without the consent of Safeco. The bank official later explained, however, that he had an

understanding with Safeco that if the bank was going to fail he would issue checks to bring the

escrow accounts below the insurance limit.

15 In a letter to Congressman Pete Geren Safeco advised that "prior to the close of business on

October 30," it had "requested that the bank issue us four cashier's checks totaling in excess of 1.7

million dollars."

16 Cf. Barw ick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984) ("A genuine issue of

material fact is not created where the only issue of fact is to determine which of the two

conflicting versions of the plaintiff's testimony is correct."); Thurman v. Sears, Roebuck & Co.,

952 F.2d 128, 136-37 n. 23 (5th Cir.) (same), cert. denied, --- U.S. ----, 113 S.Ct. 136, 121

L.Ed.2d 89 (1992). interpretations, we accept the FDIC's conclusive account records doctrine and resultant treatment of

the cashier's checks as Safeco deposits.

B. Authorization

Safeco contends that the FDIC arbitrarily and capriciously refused to consider evidence that

it did not authorize the i ssuance of the checks. 1 4 This argument is meritless. Safeco initiated the

account-emptying scheme. 15 Further investigation was unnecessary. The FDIC had a sound basis

for concluding that Safeco authorized the checks. 16

C. Due Process

Finally, Safeco asserts that it was not afforded due process. Its primary complaint is that it

was given no opportuni ty to present the details of ownership in the underlying escrow accounts. As

above concluded, those records were irrelevant to the ownership of the cashier's checks for deposit

insurance purposes. Additionally, Safeco complains about the informality of the FDIC procedures.

Trial-type procedures are not mandated for administrative decisionmaking. Safeco received a

hearing, albeit informal, as well as a formal administrative appeal.

We assess the adequacy of the process guided by a M athews v. Eldridge balancing w hich

requires the we ighing o f t he private interests affected by the official action, the risk of erroneous

deprivation through the existing procedure, and the go vernment's interest in minimizing its17 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The private interests involved here

include those of Safeco and its escrow depositors as well as the countervailing interests of other

depositors whose insurance or dividend payments might be delayed by a rule requiring additional

investigation and procedures. The government has a compelling interest in being able to rely with

confidence on account records at the time of closure. administrative and financial burdens. 17

The decisive Mathew s que s tion is whether the challenged procedures created a real risk of

erroneous deprivation and whether additional procedures would have reduced that risk. The FDIC's

abbreviated process, according to Safeco, precluded adequate consideration of own ership details

about the underlying escrow account s. Safeco was afforded an adequate opportunity to offer

information relevant to the FDIC's determination. There was no due process violation.

The petition for review is DENIED.