claims and defenses beyond the original scope and
intent of those two lines of authority;
(5) the Federal banking agencies’ aggressive
use of the D’Oench doctrine and section 13(e) of the
Federal Deposit Insurance Act in the administrative
claims process and litigation, combined with the ex-
pansive interpretation of those authorities by the Su-
preme Court, have led to fundamentally unfair re-
sults; and
(6) many individuals have been barred from as-
serting potentially valid claims and defenses once an
insured depository institution has been declared in-
solvent and taken over by a Federal banking agency.
(b) PURPOSES.—The purposes of this Act are—
(1) to unify the lines of authority developed
under the Federal common law and referred to in
subsection (a) and section 13(e) of the Federal De-
posit Insurance Act, so that all cases relating to
agreements against the interest of the Federal De-
posit Insurance Corporation are decided pursuant to
Federal statutory law; and
(2) to return the D’Oench doctrine to its origi-
nal purpose by continuing to bar the enforcement of
unrecorded agreements, but allowing certain poten-
tially valid intentional tort and other claims and de-
fenses to be adjudicated on their merits.
SEC. 3. CLARIFICATION.
Section 13(e) of the Federal Deposit Insurance Act
(12 U.S.C. 1823(e)) is amended to read as follows:
‘‘(e) AGREEMENTS AGAINST INTERESTS
OF
THE
CORPORATION.—
‘‘(1) IN GENERAL.—No agreement which tends
to diminish or defeat the interest of the Corporation
in any asset acquired by the Corporation under this
section or under section 11, by purchase or assump-
tion, or in its capacity as receiver of any insured de-
pository institution, shall be enforceable against the
Corporation unless that agreement is in writing and
was executed in the ordinary course of business by
an insured depository institution through an officer
or other employee or representative of the institution
having the authority to execute such an agreement
on behalf of the institution.
‘‘(2) CLAIMS
AGAINST
THE
CORPORATION.—
Notwithstanding paragraph (1), no court may bar,
estop, or otherwise prohibit the adjudication against
the Corporation, in its corporate capacity and as re-
ceiver of an insured depository institution, of—
‘‘(A) a claim or defense that does not re-
late to specific assets acquired by the Corpora-
tion;
‘‘(B) a claim or defense that does relate to
transactions that would not, in the normal
course of business, be reflected in the trans-
action records of the institution;
‘‘(C) a claim or defense in litigation com-
menced before the date of the appointment of
the Corporation as receiver or conservator for
the insured depository institution;
‘‘(D) a claim or defense, filed at any time,
based on alleged intentional torts or alleged vio-
lation of State or Federal law, if—
‘‘(i) the party asserting the claim or
defense demonstrates that the party did
not—
‘‘(I) participate in a scheme to
defraud the subject insured depository
institution; or
‘‘(II) knowingly lend itself to a
scheme to mislead bank examiners by
misrepresenting the value of the as-
sets of the institution; and
‘‘(ii) any oral representations relied
upon are not in conflict with a written
agreement contained in the records of the
institution.
‘‘(3) STATUS AS HOLDER IN DUE COURSE.—Ex-
cept as otherwise provided in paragraph (1), any
other provision of Federal statutory law, or applica-
ble State law, the Corporation may not defeat a
claim related to an asset by demonstrating that the
asset was acquired in good faith, for value, and
without actual knowledge of the claim, unless the
Corporation also demonstrates that the asset was
not acquired by the Corporation upon its appoint-
ment as conservator or receiver or as part of a pur-
chase and assumption transaction.
‘‘(4) EXCEPTION FOR VENDOR AGREEMENTS.—
Subsection (e)(1) does not apply to an agreement for
the sale or purchase of goods or services actually re-
ceived by or delivered to an insured depository insti-
tution before the date of appointment of a receiver
for that institution.’’.
SEC. 4. REPEAL.
Section 11(d) of the Federal Deposit Insurance Act
(12 U.S.C. 1821(d)) is amended—
(1) by striking paragraph (9); and
(2) by redesignating paragraphs (10) through
(19) as paragraphs (9) through (18), respectively.
SEC. 5. CONFORMING AMENDMENTS.
Section 11 of the Federal Deposit Insurance Act (12
U.S.C. 1821) is amended—
(1) in subsection (e)—
(A) in paragraph (8)(A), by striking ‘‘sub-
section (d)(9) of this section and’’;
(B) in paragraph (8)(B), by striking
‘‘(12)’’ and inserting ‘‘(11)’’; and
(C) in paragraph (8)(E), by striking ‘‘sub-
section (d)(9) of this section,’’; and
(2) in subsection (g)(4), by striking ‘‘(d)(11)’’
and inserting ‘‘(d)(10)’’.
SEC. 6. APPLICABILITY.
Section 13(e) of the Federal Deposit Insurance Act,
as amended by this Act, shall apply to administrative
claims brought or pending, and any litigation filed, in
progress, or on appeal, on or after October 19, 1993.
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