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FEDERAL DEPOSIT INS. CORP. v. CONNECTICUT NAT. BANK

No. 89-2814.

916 F.2d 997 (1990)

The FEDERAL DEPOSIT INSURANCE CORP., as Manager of the Federal Savings and Loan Insurance Corporation Resolution Fund as Statutory Successor to the Federal Savings and Loan Insurance Corporation As Receiver for FirstSouth, F.A., Successor in Interest to FirstSouth Federal Savings Bank, Atlantic Permanent Federal Savings & Loan, First Federal Savings Bank of Tennessee, and Citizens Bank, Plaintiffs-Appellants, v. CONNECTICUT NATIONAL BANK, As Successor in Interest to Jefferson Federal Savings & Loan Association, Goldome Mortgage Corp., and TransOhio Savings Bank, F.S.B., As Successor in Interest by Merger to Citizens Federal Savings & Loan Association of Cleveland, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied November 21, 1990.

Attorney(s) appearing for the Case

Steven J. Watkins, Daniel J. Kasprzak, Calvin, Dylewski, Gibbs, Maddox, Russell & Verner, Houston, Tex., for Newport News, etc., et al.

Albert C. Maule, Hopkins & Sutter, Chicago, Ill., for Federal Deposit Ins. Corp.

Jordan Luke, Office of Gen. Counsel (FHLBB), Washington, D.C., for Federal Home Loan Bank Bd.

Bruce A. Cohen, Dechert, Price & Rhoads, Washington, D.C., for Jefferson, Citizens & Transohio.

Harvey Bartle, III, Dechert, Price & Rhoads, Philadelphia, Pa., for Connecticut Nat. Bank.

W. Ted Minick, Mark Goranson, Winstead, Mcguire, Sechrest & Minick, Houston, Tex., for Goldome Sav. Bank.

Before KING, GARWOOD and SMITH, Circuit Judges.

KING, Circuit Judge:

In this suit brought by construction lenders to enforce a "take-out" agreement by four putative permanent lenders, the district court granted summary judgment in favor of the permanent lenders, finding that the permanent lenders had been absolved, by reason of a breach by the borrower under the construction loan, from their responsibility to fund the permanent loan. Alternatively, the district court found that even if the permanent lenders had...

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