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D & N Bank v. United States

The Federal Circuit affirmed the Court of Federal Claims' summary judgment for the government of no contract liability on a breach of contract claim by a thrift institution; the court held that the plaintiff had failed to show that its merger with another thrift institution constituted an express or implied-in-fact contract with the government.

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Before the United States Court of Federal Claims, D & N Bank (“D&N”) sought damages in a breach of contract action that it argued arose from the 1989 enactment of the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”), Pub. L. No. 101-73, 103 Stat. 183 (1989). D&N now appeals the decision of the United States Court of Federal Claims granting the government’s motion for summary judgment of no contract liability. D & N Bank v. United States, No. 95-539(C) (Fed. Cl. 2002) (order memorializing hearing on dispositive motions and resolving merits of count I of complaint). Because D&N has not demonstrated that there was a contract that could have been breached by FIRREA, we affirm.

Background

D&N maintains that the government breached an express or implied-in-fact contract guaranteeing D&N the right to designate as regulatory capital approximately $57 million in goodwill arising from D&N’s acquisition of another thrift, First Federal Savings and Loan Association of Flint (“First Federal”). *fn1 D&N also argued that it had a contract-based right to amortize the goodwill over a period of forty years.

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