### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT January 26, 2004 THOMAS K. KAHN CLERK

* Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________ No. 02-16334

________________ D.C. Docket No. 01-01961-CV-CAM-1 JOHN ACEVEDO, Plaintiff-Appel lant,

versus FIRST UNION NATIONAL BANK, a foreign banking c orporation, Defendant-Appellee.

________________ Appeal from t

he United States D

istrict Court for t

he Southern Distric

t of Florida

_________________ (January 26, 2004) Before TJOFLAT, BIRCH and GOO DWIN * , Circuit Judges. GOODWIN, Circuit Judge: Plaintiff John Ace

vedo appeals the distr

ict court’s rulin

g that he cannot hold2

defendant First U

nion National Bank (

“First Union”

) liable for cashie

r’s checks issued by a failed bank but included in the failed bank’s assets and liabilities accepted by Fi

rst Union. Under

12 U.S.C. § 1822(

e), First Union ha

s no liability for deposits not claim

ed within eighteen m

onths after the Fed

eral Deposit Insurance Corpora

tion (the “FDI

C”) mails notice to the last-known a ddress of the depositor. 12 U.S.C. § 1822(e) (Supp. IV 1992) (amended 1993). However, because there is no e

vidence that the FD

IC mailed the requisite notice, w e reverse and remand to the distri ct court. A. Background In July 1981 , Southeas t Bank in Mi ami, Florida, i ssued fiv e cashier’s checks, totaling $450 ,000, to five nam ed payees. Fo

ur of the cashier’ s checks were in the amount of $100,000 and were issued to Roberto Sanchez, Alvaro Ocampo, Eu

genio Echavarria

and Juan Santam

aria, respectiv

ely. The re

maining cashier’s chec

k was in the amo

unt of $50,000 and was

issued to Arma

ndo Caycedo. In A

ugust 1981, in Colom

bia, South Am

erica, Juan Dia

z claims to have received the cashier’s ch ecks from Sanchez. Ten years la

ter, in 1991, Southe

ast Bank failed, a

nd the FDIC, as S outheast Bank’s receive

r, entered an As sistance Agreem ent with First Unio

n. The Assistanc e Agreement pr ovided th at First Uni on would as sume Southea st Bank’s3

liability for out

standing demand de

posits, including cash

ier’s checks. In relevant part, section 2.1 o f the Assistance A greement provi

des: 2.1 Liabilities Assume

d by Assuming Bank

. (a) The Assum

ing Bank he reby exp ressly a ssumes a t Book V alue . . . a nd agre es to pa y, perform, an

d discharge all of th

e following liabilit

ies (and only the following liabili ties) of the Failed Ban k as of Bank Closing . . . : (i) demand Deposit

s, including outstanding

cashier’s chec

ks and other official checks , and time and savings Depo sits . . . . To cover the liabil

ities, the FDIC transferred funds to First Union. Se

ction 2.3 of the Assistance Agr

eement requir

ed First Union to re

turn the transferr

ed funds to the FDIC if, w

ithin eighteen mo

nths after Southeas

t Bank’s closing,

any depositor had not claimed an unpaid deposit. In relevant part, section 2.3 of the Assistance Agreement pr

ovides: 2.3 Unclaimed Deposi

ts . If, within eighteen (18) months after Bank Closing, any

depositor of the Fai

led Bank does not clai

m or arrange to continue

such depositor’s D eposit assumed pur suant to Section 2.1 at the A

ssuming Bank, th

e Assuming Bank

shall, within fifteen (15) Busine ss Days after the end of such eighteen (18) -month period, (i) refu

nd to the Corporation t

he amount of ea

ch such Deposit (without reduction f

or service charge s), (ii) provide to the Corporation a schedule of all such refunded Deposits in such form as may be prescribed by the Corporation, and (iii) assign, transfer, convey and delive

r to the Receiver all right, title and interest of the Assuming Bank in

and to Records previ

ously transfer

red to the Assuming Bank a

nd other records gen

erated or mai

ntained by the Assuming Bank pe

rtaining to such Depos

its. In 1996, al so in Colo mbia, Acevedo claims to hav e received t he cashier ’s4

checks from Diaz t o satis fy a debt . In 200 1, Aceve do, thr ough h is atto rney, tendered the five cashier’s checks to First Union for pa

yment, but

First Union refus ed to h onor them. Acevedo initially

brought suit in state co

urt, but First Unio

n removed the action to the Northe

rn District of Ge

orgia. On the par

ties’ cross-m

otions for summary judgment, the district court gran ted summary judgment for First Union. The court conclude

d that First Union w

as no longer liable f

or the cashier’ s checks because it had com

plied with the Assist

ance Agreem

ent by returning t

he funds representing the unc

laimed deposits. B. Standard of Review This court review

s de novo a district cou

rt’s grant of sum

mary jud gment, applying the same standard s applied by the distri ct court. Valley Drug Co. v. Geneva Pharm., Inc. , 344 F.3d 1294, 1303 ( 11th Cir. 2003) (cit ing Bailey v. Allgas, Inc. , 284 F.3d 1237, 1242 (11th Cir. 2002)). A motion for sum

mary jud gment is properl

y granted when "the pleadings, depositions, answer

s to interrogatories , and admissions on file, together w

ith the affidavits, if an

y, show that the

re is no genuine issue a

s to any mate

rial fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). After a

dequate time f

or discovery and

upon motion, sum

mary jud gment5

should be entered aga

inst a party who

fails to make a

showing sufficient t

o establish the existence of an element essential to that party's case, and on which that party will bear the bu rden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). On a

summary judgment m

otion, the record a

nd all reasonable inferences must be viewed i n the light most favorab le to the non-moving p arty. Nat’l Fire Ins. C

o. of Hartford v. F

ortune Const. Co. , 320 F.3d 1260, 1267 ( 11th Cir. 2003). C. Discussion Acevedo argues tha

t First Union rem

ains liable for the cashier’s checks despite returning the underlying funds to the FDIC. Acevedo also contends that First Union can rely on § 1822(e) only if it presents evidence that the FDIC mailed notice to each deposi

tor’s last-known

address. First U

nion responds that, according to the Assi stance Agre ement and § 18 22(e), its liabilit y for the cash ier’s checks ended when it

refunded the unclai

med deposits. We begin by ob serving t hat First Un ion became li able for th e cashier’s checks by enter

ing an Assistance A

greement wit

h the FDIC, not by

merging with Southeast Bank under

12 U.S.C. § 215a

, as Acevedo has a

rgued. When Sout

heast Bank failed, the FDIC, as its insurer, was required either to pay the insured deposits in cash o r to “mak[e] available to each depos itor a transferred depo sit . . .6

in another insured depository institution . . . in an amount equal to the insured deposit of such deposito

r . . . .” § 1821(

f)(1); see also Lawson v. F ed. Deposit Ins. Corp. , 3 F.3d 11, 13 (1st Cir. 1993). The FDIC chose the la

tter option, com

monly called a “purchase and assumption,” see E.I. du Pon t de Nemours and Co. v. Fed. Deposit Ins. Corp. , 32 F.3d 592, 595 (D .C. Cir. 1994), and arranged to sell

certain assets of Southeast B ank to First Union, with the agreem ent that First Union would assume the

corresponding deposit liabilities. The opening paragraph of the Assistance Agree

ment identifie s the parties to the a greement as th

e FDIC, in its capacity as the

receiver of South

east Bank, and Fir

st Union. A “deposit” for purposes of the Federal Deposit Insurance Act, which governs the Assist ance Agreement in this case, i ncludes, inter alia , an “outstanding draft[,] . . . cashier’s check, m oney order, or other officer’s check issued in the usual cour

se of business for any

purpose, including w

ithout being limited to those issued in payment for services, dividends, or purchases . . . .” 12 U.S.C. § 1813(

l )(4)

. Interpreting § 1813( l )(4), the Tenth Circuit concluded that outstand ing and un paid cashi er’s checks w ere convert ed, upon th e bank’s insolvency, fr

om negotiable ins

truments to uncla

imed deposits by

operation of law. Fed. Deposit Ins. Corp. v. McKnigh t , 769 F.2d 658, 661 (1 0th Cir. 1985). Accordingly,

the cashier’s c

hecks in that case w

ere no longer governe

d by the7

“special rules” applicab le to negotiable in struments. Id. Likewise, when Southeast Bank fail

ed, the cashier’ s checks becam e unclaimed deposits. Thus, we turn our

attention to the Assi stance Agreem ent. The district court

concluded that First

Union’s liability

ceased when it complied with t

he Assistance Agr

eement by r

eturning the unclaim

ed deposits to the FDIC. How

ever, section 2.1 of the Assistance A greement discu

sses First Union’s liabilities, but does not limit those liabilities to the passing of a specified time or the oc currence of certain eve nt. Similarly, s ection 2.3 details Fi rst Union’s obligation to return th

e funds earma

rked for the unclaim

ed deposits, but does no

t expressly shift the liability for an unclaimed de

posit back to the FDI

C. Finding nothing in the Assi stance Agre ement that ex pressly termin ates First Union’s liability, we

cannot accept the di strict court’s conclusion. Our inquir y does not end, however, be

cause “[t] his court will affi rm a grant of s

ummary judgment if it is correct for any reason.” United States v. $121,100.00 in U.S. Currency , 999 F.2d 1503, 1507 (11th C

ir. 1993). We next consider the sta tute that governs unclaimed deposits. Section 1822(e) states that “[i]f, after the Corporation shall have given at least three mo

nths’ notice to the d

epositor by m

ailing a copy ther

eof to his lastknown address appea

ring on the records of

the depository ins

titution in default,1 In 1993, Congress amended 12 U.S.C. § 1822(e), but instructed that the former version of

§ 1822(e) apply to banks placed in receivership between January 1, 1989, and June 28, 1993. See Commonwealth of Mass. v. Fed. Deposit Ins. Corp. , 102 F.3d 615, 618 (1st Cir. 1996); Lepelletier v. Fed. Deposit Ins. Corp. , 164 F.3d 37, 40 (D.C. Cir. 1999).

2 We note that, while Acevedo may presently constitute the depositor, and while Diaz may have constituted the depositor at the time of Southeast Bank’s insolvency in 1991, under § 1822(e) the FDIC was only require d to mail notice to the last-known address of the depositor appearing on Southeast Bank’s records. See § 1822(e). 8 any depositor in the depository institution in default shall fail to claim his insured deposit . . . wit

hin eighteen mont

hs after the appointm

ent of the receive

r for the depository institution in default . . . all rights of the depositor . . . against the new bank . . . with respect to the transferred deposit, shall be barred . . . .” § 1822(e). 1 We interpret § 1822(e) as barring the depositor’s rights against the bank that assumed the depos

it if the depositor ha

s neglected to claim

an insured deposit after the FDIC mailed notice to dep ositor’s last known a ddress. See id . Simply put, Congress has pr

econditioned the prec

lusive effect of th

e statute on the m

ailing of notice by the F

DIC. It follow

s that the party seeking refuge under the statute bears the burden of d emonstrating that the F DIC mailed the appropriate n otice. Here, no depositor

presented the cashi

er’s checks wi

thin eighteen mon

ths after a receiver was appointed for Southeast Bank in 1991. This neglect resulted in the depositor’s r

ights against First U

nion being barred if

the FDIC mailed notice to the depositor’s l

ast known address app earing on the faile d bank’s records. 29

However, beca

use the record conta

ins no evidence that th

e FDIC mail

ed the requisite notice, m

uch less to whom notice must have been sent, we re

mand to the district court for f

urther proceedings. D. Conclusion We hold that for § 1822(e) to bar a depositor’s rights against a bank that assumed the insured deposit, there must be evidence that the FDIC mailed notice to the depositor’s l

ast-known address a

ppearing on the faile

d bank’s records.The district court did not make such a finding, concluding instead that the Assistance Agreement controlled First Uni on’s liability for the cashier’ s checks. We r everse the summar

y judgment

as premature

and remand for

a determinati

on whether the FDIC satisfied the not ice provision in § 1822(e). REVERSED and REMANDED.