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Click here for the full text of this decision FACTS:On Dec. 29, 1986, Gamble Palmer and Jean Cravens signed a $160,000 promissory note with United Bank of Texas. The bank became insolvent, and the Federal Deposit Insurance Corp. was appointed as receiver of the note. When Palmer defaulted, the FDIC first attempted a nonjudicial foreclosure, then filed suit in federal district court. The parties settled that suit and signed a settlement agreement that contained a non-assignment clause stating, “Neither this Agreement nor any interest herein shall be assigned by any Party without the written consent of the other, except in the event of a statutorily created successor in interest to the FDIC.” The agreement also said that as part of the consideration for the agreement, if the parties did not sign a final judgment, the lawsuit would be reinstituted with the same allegations and defenses. On July 14, 1993, Palmer and Cravens signed a second note, payable to the FDIC for $125,000. The second note did not contain a non-assignment clause or reference the settlement agreement. In June 1995, the FDIC transferred the second note and the settlement agreement to Beal Bank. When Palmer and Cravens again defaulted, Beal transferred the second note back to the FDIC in December 1997. The FDIC subsequently transferred its rights, title and interest in the second note and settlement agreement to Alma Group, who accelerated the loan. Alma sued Palmer and Cravens in October 2001 for the balance and accrued interest on the note. Palmer and Cravens countersued for breach of contract and tortious interference with contract. The parties reached a joint stipulation that said, “The parties stipulate that the FDIC and Alma did not seek or obtain written consent from Palmer as to the assignment of the [Second] Note and Settlement Agreement by the FDIC to Alma.” The trial court entered a take nothing judgment against Alma, who now appeals. HOLDING:Reversed and remanded. On appeal, Alma asserts that as assignee of the FDIC, it obtained the right to enforce the second note. Palmer and Cravens counter that the FDIC’s assignment of the second note to Alma was invalid because the anti-assignment provision in the settlement agreement also applies to the second note. The court reviews the case of First Nationwide Bank v. Fla. Software Servs., Inc., 770 F. Supp.1537 (D. Fla. 1991), where it was held that the Federal Savings and Loan Insurance Association’s assignments of a license agreement did not breach a similar anti-assignment clause because the Financial Institutional Reforms, Recovery and Enforcement Act of 1989 authorized the assignments regardless of the clause. The court points out that although the FDIC was a party to the settlement agreement, it was not a party to this case. Thus, the trial court was not considering the legal question of whether the FDIC’s agreement to the non-assignability clause in the settlement agreement controls over FIRREA’s assignability provision. Instead, the legal question before the trial court, and before this court, is whether Alma’s assignment of the second note from the FDIC is valid. The Texas Supreme Court has held that FIRREA’s provisions preempt state law and extend to the FDIC’s assignees. The court notes that neither party here has analyzed FIRREA’s application to the stipulated facts in this case. Regardless, the court finds that in the absence of any non-assignment clause or reference to the settlement agreement in the second note, and considering the incorporation on its face of “assignees,” the court FIRREA authorizes the FDIC to assign the second note without Palmer’s and Cravens’ approval or consent. The court also reverses the award of attorneys’ fees to Palmer and Cravens. OPINION:: Castillo, J.; Hinojosa, Yanez and Castillo, JJ.

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