MEMORANDUM OPINION
Before the court are: (1) the third-party defendants’ motion to strike and dismiss or sever and transfer the claims against them; and (2) the Federal Deposit Insurance Corporation’s (“FDIC”) motion to dismiss. For the reasons explained below, we grant the third-party defendants’ motion, and grant in part, and deny in part, the FDIC’s motion.
BACKGROUND
1. The FDIC’s Complaint
The FDIC, as receiver for Wheatland Bank (“Wheatland”), has filed a one-count breach-of-contract complaint against One-Beacon Midwest Insurance Company (“OneBeacon”) alleging that OneBeacon has wrongfully denied coverage under a “Financial Institution Bond” (the “Bond”). Pursuant to the Bond, OneBeacon agreed to indemnify Wheatland for financial losses “resulting directly from dishonest or fraudulent acts committed by an Employee ... with the intent: (a) to cause [Wheat-land] to sustain such loss; or (b) to obtain financial benefit for the Employee or another person or entity.” (See Bond, attached as Ex. A to FDIC’s Compl., at § 1(A) (“Employee Dishonesty”).) Two Wheatland executives — Michael A. Sykes (the bank’s former CEO) and Arthur P. Sundry (a former director) — caused Wheatland to make loans that benefitted Sykes and Sundry at the bank’s expense.1 (Compl. ¶¶ 13,15-51.) Wheatland first became aware of the fraud on or after June 13, 2009, and it gave OneBeacon timely notice of its losses on June 23, 2009. (Id. at ¶¶ 52-53.) The bank submitted a proof of loss to OneBeacon on April 8, 2010. (Id. at ¶ 54.) Approximately two weeks later, on April 23, 2010, the Illinois Department of Financial and Professional Regulation closed Wheatland and appointed the FDIC as receiver. (Id. at ¶ 3.) The FDIC thereby acquired Wheatland’s rights under the Bond. See 12 U.S.C. § 1821(d)(2)(A). One-Beacon has refused coverage for Sykes’s and Sundry’s wrongful conduct, prompting this lawsuit. (Compl. ¶¶ 52-55.)
2. Other Litigation Incident to Wheatland’s Failure
Several lawsuits were filed just prior to, and in the wake of, Wheatland’s failure. On December 21, 2009, before the FDIC was appointed receiver, Wheatland filed a lawsuit against Sykes, Sundry, and two
3. OneBeacon’s Affirmative Defenses, Counterclaims, and Third-Party Complaint
OneBeacon has responded to the FDIC’s complaint with numerous affirmative defenses and a four-count counterclaim with respect to the Bond. It has also filed a separate five-count counterclaim and “third-party complaint” against the FDIC and certain former Wheatland officers and directors with respect to a Management and Professional Liability Policy (the “D & O Policy”). The thrust of One-Beacon’s counterclaims is that if the FDIC proves Sykes’s and Sundry’s alleged fraud, then it will have established grounds to rescind the policies. On November 7, 2007, Sykes executed on Wheatland’s behalf an application to renew the Bond and the D & O Policy. (OneBeacon’s Counterclaim f¶ 44; see also OneBeacon’s Third-Party Compl. ¶ 44.) In the application, Wheatland denied knowledge of any claim that “could reasonably be expected to give rise to a future liability or bond loss.” (See OneBeacon’s Counterclaim ¶ 46; see also id. at ¶¶ 47-50.) OneBeacon alleges that it relied on these and similar representations in the application when it renewed the Bond. (See id. at ¶ 51.) Later, in October 2008, OneBeacon increased the Bond’s coverage from $1 million to $3 million, and the D & O Policy’s coverage from $3 million to $5 million, in reliance on a “No Known Loss Letter” executed by Sykes representing that Wheatland was not aware of any losses. (See id. at ¶¶ 52-54; see also OneBeacon’s Third-Party Compl. ¶¶ 53-55.) OneBeacon contends that the renewal application and the “No Known Loss Letter” were false because Sykes was integrally involved in the fraud alleged in the FDIC’s complaint. Based on these alleged misrepresentations, One-Beacon asserts claims for: (1) rescission of the Bond (Count I); (2) rescission of the increase in the Bond’s coverage (Count II, pled in the alternative to Count I); and (3) declaratory judgment that there is no coverage under the Bond (Count III). In a separate count labeled “Reservation of Rights” (Count IV), OneBeacon purports to reserve “all of its rights under the Bond and applicable law.” (OneBeacon’s Counterclaims ¶ 89.) OneBeacon has also filed a separate counterclaim against the FDIC, and purported third-party claims against some of Wheatland’s former directors and officers (including Sykes and Sundry),
The FDIC has moved to dismiss One-Beacon’s counterclaims, its third-party complaint, and one of its affirmative defenses on the grounds that they are barred by the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”). See 12 U.S.C. § 1821 et seq. The third-party defendants ask us to dismiss the claims against them because they were improperly joined as defendants under Rule 14(a) or, alternatively, for the reasons stated in the FDIC’s motion.
A. The FDIC’s Motion to Dismiss
1. Legal Standard
The FDIC brings its motion pursuant to Rule 12(b)(1) and Rule 12(b)(6). When considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a district court accepts as true all well-pled factual allegations and draws reasonable inferences from the allegations in favor of the plaintiff. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993). The court may also look beyond the allegations of the complaint and consider affidavits and other documentary evidence to determine whether subject matter jurisdiction exists. Id. The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the ease on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). To survive such a motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When evaluating a motion to dismiss a complaint, the court must accept as true all factual allegations in the complaint. Iqbal, 129 S.Ct. at 1949. However, we need not accept as true its legal conclusions; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555,127 S.Ct. 1955).
The FDIC asserts three primary arguments for dismissal. First, it argues that OneBeaeon’s affirmative claims are barred because it failed to exhaust its administrative remedies under FIRREA. Second, it argues that the relief OneBeacon seeks is barred by 12 U.S.C. § 1821(j). Third, it argues that OneBeacon’s claims for rescission with respect to the Bond, and its Third Affirmative Defense, are barred by 12 U.S.C. §§ 1823(e) and 1821(d)(9)(A). Until recently, our Court of Appeals considered FIRREA’s exhaustion requirement jurisdictional. See Maher v. Harris Trust & Sav. Bank, 75 F.3d 1182, 1190 (7th Cir.1996) (“Compliance with the FIR-REA process is a strict jurisdictional prerequisite to a claim in federal district court
2. 12 U.S.C. § 1821(3)
After the FDIC is appointed receiver, it has broad authority under FIRREA to operate the failed bank and dispose of its assets. See 12 U.S.C. § 1821(d)(2)(B). Section 1821 (j) limits courts’ authority to “restrain or affect” the FDIC’s exercise of these powers:
Limitation on court action
Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver.
12 U.S.C. § 1821 (j). Courts have construed § 1821(j) broadly to bar claims for injunctive, declaratory, and equitable relief. See Courtney v. Halleran, 485 F.3d 942, 947-48 (7th Cir.2007); see also Freeman v. FDIC, 56 F.3d 1394, 1399 (D.C.Cir. 1995) (“Section 1821(j) does indeed effect a sweeping ouster of courts’ power to grant equitable remedies to parties like the Freemans.”).3 OneBeaeon cites Sharpe v. FDIC, 126 F.3d 1147, 1154-55 (9th Cir. 1997) for the proposition that a court may “restrain” the FDIC from taking an action exceeding its authority under FIRREA. (See OneBeaeon’s Resp. (FDIC) at 15.) But there is no allegation here that the FDIC has acted ultra vires. The real question, we believe, is whether the declaratory and equitable relief that OneBeaeon requests will “affect or restrain” the FDIC.
a. Declaratory Judgment
We agree with OneBeaeon that its claim for declaratory judgment of “no coverage” with respect to the Bond does not restrain the FDIC in the relevant sense. See Village of Sugar Grove v. FDIC, No. 10 C 3562, 2011 WL 3876935, *8 (N.D.Ill. Sept. 1, 2011) (concluding that we had subject matter jurisdiction over a similar claim). In Sugar Grove, the plaintiff alleged that the FDIC (as receiver for Benchmark Bank, N.A.) and MB Financial Bank (as the successor to certain of the failed bank’s assets) wrongfully dishonored “sight drafts” that the plaintiff had presented to Benchmark for payment. Id. at *1. It essentially repackaged the same allegations in a separate count requesting a declaratory judgment. Id. at *9. We concluded that we had subject-matter jurisdiction over that request, reasoning that § 1821 (j) did not prohibit us from construing agreements that were already before us. See id. at *8 (“We do not read § 1821 (j) to prohibit us from declaring the parties’ rights under [the agreement allegedly transferring the
Whether we have subject matter jurisdiction over OneBeacon’s counterclaims for declaratory judgment with respect to the D & O Policy is a closer question. On the one hand, the relief One-Beacon requests — declaratory judgment that particular policy exclusions bar coverage for the Spangler lawsuit — is similar to the relief that it seeks with respect to the Bond. And unlike the plaintiffs in Courtney and Freeman, OneBeacon is not seeking declaratory relief to compel the FDIC to take (or prevent it from taking) a specific action authorized by FIRREA. See Courtney, 485 F.3d at 946 (court lacked jurisdiction over a declaratory judgment claim tantamount to an injunction prohibiting the FDIC’s settlement with another party); Freeman, 56 F.3d at 1399 (court lacked jurisdiction over a declaratory judgment claim that would have prohibited the FDIC from foreclosing on the plaintiffs’ property). On the other hand, OneBeacon has sued the FDIC preemptively to seek a determination of rights with respect to a contract in which the FDIC (as receiver) claims an interest. In that sense, the claim will “affect” the FDIC’s authority to “collect all obligations and money due the institution.” 12 U.S.C. § 1821(d)(2)(B)(ii). Radian is closest to our own facts. In that case, Radian issued insurance policies to Deutsche Bank, as trustee for certain mortgage-backed securities, insuring the underlying mortgages against default. Radian, 2009 WL 3163557, *1. The mortgages were originated and serviced by Indymac, which was later placed into FDIC receivership. Id. Radian sued Indymac (and later the FDIC, as Indymac’s receiver) for declaratory judgment.4 The Radi
The FDIC suggests two possible ways in which OneBeacon’s request for declaratory judgment may affect its powers under FIRREA. First, the FDIC contends that it has a present interest in the policies as a tort-claimant in the Spangler lawsuit.6 See, e.g., Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 682 (7th Cir. 1992) (“[T]he victim of an insured’s tort, even though he is not a third-party beneficiary of his injurer’s insurance policy, has a legally protectable interest in that policy before he has reduced his tort claim to judgment (but only after he has been injured).”). Second, the FDIC contends that it may be liable to Wheatland’s former officers and directors for indemnification if coverage is not available under the D & O Policy. We tend to agree with OneBeacon that this risk is negligible, but applying the Radian court’s reasoning, the likelihood that a particular claim will affect receivership assets is irrelevant. See Radian, 2009 WL 3163557, *13 n. 11 (declining to speculate what claims the FDIC might bring, or under what legal theory it might proceed). We believe that Radian is consistent with § 1821(j)’s broad language prohibiting courts from taking any action affecting or restraining the FDIC.7 We acknowledge that dismissing OneBeacon’s declaratory-judgment counterclaims deprives it of a remedy that is traditionally available to insurers asked to defend lawsuits for which they contend there is no
b. Rescission
We also conclude that the § 1821© bars OneBeacon’s claims to rescind the Bond and the D & 0 Policy. Courts have held that rescission claims have the same capacity to “restrain or affect” the FDIC’s powers as claims for injunctive relief. See Tri-State Hotels, Inc. v. FDIC, 79 F.3d 707, 715 (8th Cir.1996); Freeman, 56 F.3d at 1399; Ward v. Resolution Trust Corp., 996 F.2d 99, 103-04 (6th Cir.1993); United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1329 (6th Cir.1993); see also Courtney, 485 F.3d at 948 (citing Tri-State and Freeman with approval). In Tri-State, a bank breached its loan agreement with the plaintiff before going into receivership. Tri-State, 79 F.3d at 710. After the FDIC was appointed receiver, the plaintiff filed a lawsuit seeking (among other things) to rescind the parties’ underlying loan agreements. Id. at 711. The Tri-State court held that § 1821© barred this claim: “[bjecause FIRREA grants the FDIC the power to ‘collect all obligations and money due the institution,’ 12 U.S.C. § 1821(d) (2) (B) (ii), rescinding the agreements would act as an impermissible restraint on the ability of the FDIC to exercise its powers as receiver.” Id. at 715. Tri-State is arguably distinguishable because, with respect to the Bond at least, the FDIC has already filed a claim for affirmative relief. But there is no suggestion in the Tri-State court’s opinion that it would have entertained the plaintiffs rescission claim if it had been filed as a counterclaim in a suit brought by the FDIC. Cf. Bursik v. One Fourth St. N. Ltd., 84 F.3d 1395, 1396-97 (11th Cir.1996) (concluding that § 1821© barred the defendants’ counterclaims for equitable relief). Moreover, we cannot anticipate what other claims the FDIC might make in the future under the policy. With respect to the D & 0 Policy, there is no meaningful difference between OneBeaeon’s claims for rescission and the declaratory-judgment claims of non-coverage we have already
c. Whether the Claims May Proceed Against the Non-FDIC Defendants
We agree with the FDIC that OneBeacon’s claims for declaratory and equitable relief cannot proceed against the non-FDIC defendants alone. “[A] court order which operates against a third party is precluded by section 1821© if the order would have the same effect from the FDIC’s perspective as a direct action against it precluded by section 1821©.” Hindes v. FDIC, 137 F.3d 148, 160 (3d Cir.1998); see also Telematics Intern., Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 707 (1st Cir.1992). A judgment rescinding the policies would clearly affect the FDIC whether or not it is formally named a defendant to such a claim. Similarly, a declaration that "Wheatland’s former directors and officers are not entitled to coverage would impact the FDIC’s interest as the tort-claimant in Spangler. It is true, as OneBeacon points out (see One-Beacon’s Resp. (FDIC) at 18), that the Radian court permitted the plaintiff to pursue a claim for rescission against Deutsche Bank (its insured) despite the FDIC’s hypothetical interest in the policy. See Radian, 2009 WL 3163557, *6. But it reached that conclusion based upon the FDIC’s decision to abandon its argument that rescission implicated § 1821© whether or not it was formally named as a defendant to that claim. Id. Indeed, the court hinted in a footnote that it would have applied § 1821 © to bar Radian’s rescission claim against Deutsche Bank if the FDIC had pressed the argument. Id. at *6 n. 6 (‘Without deciding the issue, this Court observes that several other courts have barred claims for equitable relief directed at non-FDIC third parties, such as Deutsche Bank and the Certificate Insurers, where the relief would still effect [sic] or restrain the FDIC.”) (collecting cases). In a footnote at the end of its response brief, OneBeacon argues that its claims may proceed against the non-FDIC defendants because the FDIC is not an “indispensable” party. (See OneBeacon’s Resp. (FDIC) at 25 n. 12.) Our ruling here is based upon our interpretation of § 1821©’s scope — an issue that OneBeacon does not squarely address — not Rule 19. As for its due process argument, (see OneBeacon’s Resp. (FDIC) at 25 n. 12), we note that our ruling does not mean that there is coverage for the Spangler lawsuit, notwithstanding any policy defenses One-Beacon may have. It merely means that OneBeacon cannot preemptively sue for an early determination of that issue. (See supra at 14-15.)
d. Summary
OneBeacon’s counterclaim against the FDIC with respect to the Bond is dismissed in its entirety. We conclude that § 1821© bars its rescission claims (Counts I and II) with respect to the Bond. Count III of that counterclaim is dismissed as redundant in light of the FDIC’s claim for breach of contract. Count IV, styled a “Reservation of Rights,” is dismissed as it fails to assert any claim against the FDIC. Likewise, OneBeacon’s counterclaim against the FDIC and Wheatland’s former officers and directors is dismissed in its entirety. We conclude that § 1821© bars Counts I, II, III, and IV of OneBeacon’s counterclaim with respect to the D & O Policy. Count V (“Reservation of Rights”) is dismissed for the reasons we just explained. Among other grounds for dismissal, the third-party defendants have expressly adopted the arguments made by the FDIC. (See Third-Party Defs.’s Mem.
3. Exhaustion
Even if we concluded that we had subject-matter jurisdiction over OneBeacon’s counterclaims, we would still dismiss those claims under § 1821(d)(13)(D). Section 1821(d)(13)(D) (“Limitation on judicial review”) provides,
Except as otherwise provided in this subsection, no court shall have jurisdiction over—
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the Corporation has been appointed receiver, including assets which the Corporation may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the Corporation as receiver.
12 U.S.C. § 1821(d)(13)(D). This provision requires parties to exhaust their administrative remedies under FIRREA before bringing a “claim” or “action” against the FDIC in state or federal court. See Village of Oakwood v. State Bank and Trust Co., 539 F.3d 373, 385-86 (6th Cir.2008) (collecting cases). The FDIC contends, and OneBeacon does not dispute, that One-Beacon did not submit a proof of claim to the FDIC before the 90-day deadline to submit such claims expired on July 28, 2012. See 12 U.S.C. § 1821(d)(3)(B); (FDIC Mem. at 4). OneBeacon argues, however, that its counterclaims are not subject to FIRREA’s exhaustion requirement.
First, OneBeacon argues that § 1821 (d)(13)(D) applies only to a failed bank’s creditors, not its alleged debtors. In support of this argument, OneBeacon relies primarily on the Ninth Circuit’s decision in Parker N.A. Corp. v. Resolution Trust Corp., 24 F.3d 1145, 1152 (9th Cir. 1994). The Parker court reasoned that FIRREA’s administrative claims procedure refers only to “creditors,” see 12 U.S.C. § 1821(d)(3)(B)-(C), not debtors, and therefore the word “claims” in § 1821(d)(13)(D) must refer to creditors’ claims. Id. at 1152-53; see also American Cas. Co. of Reading, Pa. v. Sentry Federal Sav. Bank, Civ. A. No. 91-12050-WGY, 91-11016-WGY, 1995 WL 170037, *3 (D.Mass. Mar. 16, 1995) (applying the same reasoning to a creditor’s declaratory-judgment “action”). However, the Ninth Circuit has since limited Parker to cases involving the intersection of FIRREA and the Bankruptcy Code. See McCarthy v. FDIC, 348 F.3d 1075, 1078 (9th Cir.2003) (declining “to extend Parker beyond bankruptcy”). As the McCarthy court noted, “[t]he text of § 1821(d)(13)(D) plainly states that any claim or action that asserts a right to assets of a failed institution is subject to exhaustion. There is no limitation to creditors, or exclusion of debtors.... ” Id. at 1077. Although our Court of Appeals has not weighed in on the question, other circuits have similarly concluded that § 1821(d)(13)(D) is not limited to claims by creditors. See, e.g., In re Lewis, 398 F.3d 735, 741-42 (6th Cir.2005) (concluding that § 1821(d)(13)(D) applies to debtors and citing supporting authority from the First, Third, Eighth, Ninth, and D.C. Circuits); see also Tri-State, 79 F.3d at 714 (“The great weight of authority holds that FIRREA requires debtors as well as creditors to undergo the administrative review process.”). We believe that these authorities are persuasive because they are consistent with FIRREA’s plain language. See Tri-State, 79 F.3d at 714 (“While the notice provisions do apply only to creditors, such limiting language is conspicuously absent in the jurisdictional bar provision.”).
This leads us to the question of affirmative defenses. The FDIC concedes that affirmative defenses are not subject to exhaustion. See, e.g., Tri-State, 79 F.3d at 715; Nat’l Union, 28 F.3d at 393 (concluding that § 1821(d)(13)(D) does not bar affirmative defenses). It argues, however, that OneBeaeon’s Third Affirmative Defense — “[t]he FDIC’s claim is barred or limited because the alleged contract is unenforceable and/or void ab initio due to concealment, material misrepresentation, and/or material breach of warranty by the Bank” — is not a true affirmative defense. According to the FDIC, an affirmative defense is really a “claim” or “action” subject to FIRREA’s exhaustion requirement if it: (1) could have been asserted in the claims
4. 12 U.S.C. §§ 1823(e) and 1821(d)(9)(A)
The FDIC alternatively argues that OneBeacon’s Third Affirmative Defense is barred by 12 U.S.C. §§ 1823(e) and 1821(d)(9)(A) and the related common-law doctrine announced by the Supreme Court in D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942).10 The defendant in D’Oench, Duhme, a securities firm, sold bonds to Belleville Bank & Trust Co. that later defaulted. D’Oench, Duhme, 315 U.S. at 454, 62 S.Ct. 676. To avoid showing past due bonds on the bank’s books, the defendant executed notes in the bank’s favor subject to the parties’ agreement that the
No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the Corporation unless such agreement—
(A) is in writing,
(B) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,
(C) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and
(D) has been, continuously, from the time of its execution, an official record of the depository institution.
12 U.S.C. § 1823(e)(1). Section 1821(d)(9)(A), enacted as part of FIRREA in 1989, states that “any agreement which does not meet the requirements set forth in section 1823(e) of this title shall not form the basis of, or substantially comprise, a claim against the [FDIC].” 12 U.S.C. § 1821(d)(9)(A). The Supreme Court has broadly defined the term “agreement” in § 1823(e), holding in Langley v. FDIC, 484 U.S. 86, 89, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987) that the term encompassed a failed bank’s misrepresentations concerning property that the defendants purchased with a loan from the bank. See id, at 96, 108 S.Ct. 396 (“A condition to payment of a note, including the truth of an express warranty, is part of the ‘agreement’ to which the writing, approval, and filing requirements of 12 U.S.C. § 1823(e) attach.”); see also Resolution Trust Corp. v. Ehrenhaus, 34 F.3d 441, 442 (7th Cir.1994) (applying Langley and concluding that § 1823(e) applied to a bank’s alleged concealment of facts material to the defendant’s loan guaranty).
Although our Court of Appeals has not explicitly addressed whether a fidelity bond is subject to § 1823(e), it established an interpretative framework in John that excludes such agreements from the statute’s scope. In John, the defendant bank (later taken over by the FDIC) allegedly concealed defects in a house that it sold to the plaintiffs. John, 39 F.3d at 774. The district court concluded that the plaintiffs’ fraud claims were barred by § 1823(e) and the D’Oench, Duhme doctrine. Id. at 775. Our Court of Appeals reversed, stating that the § 1823(e) applies only to “conventional loan activities,” id. at 776, and distinguishing other authorities applying § 1823(e) on that basis. See id. at 777 n. 2 (distinguishing Ehrenhaus and other authorities on the grounds that they involved “loan transactions” governed by § 1823(e)); id. at 777 n. 3 (distinguishing FDIC v. State Bank of Virden, 893 F.2d 139 (7th Cir.1990) on the grounds that that
Arguably, applying § 1823(e) to Wheat-land’s bond application does not create the same interpretative problems: (1) the Bond is an identifiable asset (see, e.g., Nat’l Union, 28 F.3d at 384), (2) it was acquired by Wheatland, (3) it was transferred to the FDIC, and (4) the application “relate[sj” to that asset. See John, 39 F.3d at 776. On the other hand, we do not interpret John’s repeated emphasis that § 1823(e) applies only to loan activities as an overbroad gloss on a more narrow holding. First, as we just discussed, the Court drew a clear distinction between cases involving conventional loan activities and cases involving other transactions. Only the former are governed by § 1823(e). Second, the Court went on to observe that applying § 1821(d)(9)(A) — and by implication, § 1823(e) — beyond loan transactions would give the FDIC sweeping powers that the Court did not believe Congress had intended to confer. See John, 39 F.3d at 776.11 We are constrained by John to conclude that §§ 1823(e) and 1821(d)(9)(A) does not apply to Wheatland’s Bond application. Cf. FDIC v. Oldenburg, 34 F.3d 1529 (10th Cir.1994) (striking affirmative defense predicated on alleged misrepresentations in a fidelity-bond application); but see FDIC v. Aetna Cas. & Surety Co., 947 F.2d 196 (6th Cir.1991) (concluding on similar facts that a fidelity bond is not subject to § 1823(e)).
The John Court left the door open to applying the common law D’Oench, Duhme doctrine to non-loan transactions. See John, 39 F.3d at 776 (“Courts have split over whether the common law D’Oench doctrine is also broader than § 1823(e) and extends to non-loan transactions.”). But it declined to rule definitively on the question “because as a matter of both policy and common sense” the doctrine did not apply to the transaction in John. Id. The FDIC has not pursued an argument based on D’Oench, Duhme independent of §§ 1823(e) and 1821(d)(9)(A). (Cf. FDIC Mem. at 19 n. 2.) Moreover, it is unclear whether the doctrine remains viable after more recent Supreme Court cases curtailing federal common law. See,
[Assuming that an insurance policy is an asset within the meaning of the statute, a conclusion Aetna contested at the district court level, an insurance policy, due to its conditional nature, is not the type of asset that lends itself easily to an “overnight” or instantaneous assessment. Generally, insurance policies contain provisions specifying the conditions under which the insurer is obligated to pay and those under which the insurer is not obligated to pay. Unlike a promissory note or other negotiable instrument, there is no certainty, without reviewing potential policy defenses or limitations, whether insurance proceeds will be paid. It would thus be difficult to ascertain instantaneously the likely proceeds, if any, to which the FDIC would be entitled.
Id. at 202. Even assuming that the D’Oench, Duhme doctrine applies to non-
CONCLUSION
The third-party defendants’ motion to dismiss [25] is granted. The FDIC’s motion to dismiss [17] is granted in part and denied in part. OneBeacon’s counterclaims against the FDIC are dismissed. The motion is denied as to OneBeacon’s Third Affirmative Defense. A status hearing is set for July 25, 2012 at 10:30 a.m.
1.
The specifics of Sykes’s and Sundry’s alleged fraud, which the FDIC has set forth in significant detail in its complaint, are largely irrelevant to the present motions.
2.
As we read its current complaint in Spangler, the FDIC is no longer pursuing claims against the defendants for the specific loan transactions at issue in this case.
3.
Section 1821(j)'s proviso language — "[e]xcept as otherwise provided in this section”— suggests that other provisions might grant courts greater leeway to "restrain or affect” the FDIC. But the statute's other provisions only tend to reinforce § 1821(j). See Courtney, 485 F.3d at 948 (Section 1821© "prohibits a court from taking any action either to restrain or affect the FDIC’s exercise of its powers as a receiver, unless authorization can be found elsewhere in the section. Far from finding such an authorization, however, we see nothing but language that reinforces § 1821©.”).
4.
The court believed that there was some confusion about whether the FDIC was also named as a defendant to Radian’s claim to rescind the insurance policies. Radian, 2009 WL 3163557, *6. Radian clarified, however, that it had not named the FDIC as a defendant to that claim. Id.
5.
Radian alleged that Indymae was neither an insured nor a third-party beneficiary of Radian’s policies with Deutsche Bank. See Radian, 2009 WL 3163557, *6.
6.
Wheatland is an insured under the policy’s other coverages, but the FDIC appears to concede that the requested declaratory relief only impacts "Coverage A.”
7.
OneBeacon has not cited, nor are we aware of, any court adopting a contrary interpretation. Indeed, besides our own opinion in Sugar Grove, we are not aware of any court permitting a declaratory-judgment claim to proceed against the FDIC. The Fifth and Eleventh Circuits have stated in dicta that § 1821(j) does not bar all claims for declaratory relief. See RPM Investments, Inc. v. Resolution Trust Corp., 75 F.3d 618, 619 n. 1 (11th Cir. 1996) (barring declaratory judgment claim that was "tantamount” to a claim for specific performance, but declining. to hold that "every claim for declaratory relief against a failed institution would be subject to the jurisdictional bar of § 1821(j).”); Carney v. Resolution Trust Corp., 19 F.3d 950, 958 n. 3 (5th Cir. 1994) ("Naturally, we do not hold that § 1821(j) would bar all actions for declaratory relief against the receiver of a failed financial institution.”). But neither Camey nor RPM Investments discuss circumstances in which such claims may proceed without violating § 1821(j).
8.
OneBeacon argues that the FDIC has previously litigated declaratory-judgment actions in similar situations without raising jurisdictional objections. (OneBeacon’s Resp. (FDIC) at 13-14.) OneBeacon has made no real effort to demonstrate that judicial estoppel is appropriate in this case, and we are unaware of any prior case in which the FDIC has interpreted FIRREA in a manner that is "clearly inconsistent" with its position here. In re Airadigm Communications, Inc., 616 F.3d 642, 662 (7th Cir.2010).
9.
The National Union court did not address § 1821(j), except parenthetically. See Nat’l Union, 28 F.3d at 392 n. 23 (citing the Fifth Circuit’s decision in Carney, a case applying § 1821(j), as consistent with the Nat'l Union court’s conclusion that it lacked jurisdiction over the defendant’s declaratoiy-judgment counterclaim under § 1821 (d)(13)(D)). We have held that § 1821 (j) bars OneBeacon’s rescission claims, and although the issue is not squarely before us, we doubt that One-Beacon could revive those claims as affirmative defenses. By its terms, section 1821(j) is not limited to "claims” or "actions.” Nevertheless, we find National Union’s interpretation of § 1821(d)(13)(D), if not its holding, persuasive.
10.
The FDIC also relies on these authorities in support of dismissing OneBeacon’s affirmative claims. In light of our ruling that those claims are barred by §§ 1821(j) and 1821(d)(13)(D), we will only address §§ 1823(e), 1821(d)(9)(A), and D’Oench, Duhme as they apply to OneBeacon's Third Affirmative Defense.
11.
The FDIC argues that the Seventh Circuit incorrectly required that an “agreement” under § 1821(d)(9)(A) must relate to a specific asset, as per § 1823(e). (See FDIC Reply at 13.) This argument is based upon a “Statement of Policy” that the FDIC released in 1997 that gives a contrary interpretation and purports to distinguish John and Thigpen on the ground that those cases involved "preFIRREA facts.” Statement of Policy, 65 FR 5984, 5985 n. 2. This is a flimsy basis for distinguishing John, which explicitly applied §§ 1823(e) and 1821(d)(9)(A) to the facts of that case. As for the substance of the FDIC’s interpretation, its argument for Chevron deference is undeveloped. (See FDIC’s Mem. at 20; FDIC’s Reply at 13.) On this record, we will not ignore John’s clear statements that §§ 1823(e) and 1821(d)(9)(A) are both limited to "conventional loan transactions.”