Edward Ochman, As Trustee for Ann Ochman & As Trustee Forlynn Trudeau; Edward Ochman Systems, Aconnecticut Corporation; Ann Ochman, Etal., Plaintiffs-appellants, v. Freedom Federal Savings & Loan Association, Defendant,andfederal Deposit Insurance Corporation, As Manager of Thefslic Resolution Fund, As Successor to the Federalsavings and Loan Insurance Corporation,in Its Corporate Capacity,defendant-appellee, 8 F.3d 29 (9th Cir. 1993)

MEMORANDUM^* 

The Ochmans appeal the district court's grant of the FSLIC's Motion to Dismiss, or in the Alternative for Summary Judgment.¹  Affirming an administrative determination by the FSLIC, the district court concluded that the FSLIC's denial of the Ochmans' deposit insurance claims--for two trust accounts, designated individually "Edward Ochman in Trust for Lynn Trudeau" and "Edward Ochman in Trust for Ann Ochman"--was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 701 et. seq. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

The district court adopted the "arbitrary and capricious" standard of the Administrative Procedure Act to guide its review of the determination by the FSLIC that the two accounts at issue were not fully insured.²  On appeal, the Ochmans initially argue that Coit Independence Joint Venture v. FSLIC, 489 U.S. 561 (1989) and Morrison-Knudsen Co. v. CHG Int'l, Inc., 811 F.2d 1209 (9th Cir. 1987), cert. dismissed sub nom. FSLIC v. Stevenson Assoc., 488 U.S. 935 (1988) dictate that federal courts should review FSLIC deposit insurance decisions de novo.

We need not decide whether the district court used the proper standard of review; even assuming that the more deferential arbitrary and capricious standard was correctly applied, we conclude the district court erred in granting the FSLIC's Motion to Dismiss, or in the Alternative, for Summary Judgment. Oregon Revised Statute § 708.611(3) provides in relevant part that:

[u]nless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during the lifetime of the trustee.

The Ochmans contend that the FSLIC and the district court improperly ignored language on the executed sides of the signature cards which clearly manifested the Ochmans' intent to create irrevocable trusts. Noting that Edward Ochman did not execute the side of each signature card entitled "Discretionary Revocable Trust Agreement," the Ochmans argue that the untitled executed side, stating "any funds placed in or added to this account by the undersigned ... shall be conclusively intended to be a gift and delivery at that time of such funds to the trust estate," was clear and convincing evidence of irrevocability.

The Ochmans' argument has merit. The district court, while conceding that Edward Ochman "did not sign the Discretionary Revocable Trust Agreement on the reverse," held that "in the absence of any express language specifying the type of trust on the side signed by Mr. Ochman, the court cannot say that the existing language is clear and convincing evidence that overcomes the statutory presumption that the trust is revocable." However, the district court did not acknowledge the "conclusively intended to be a gift" provision on the front of the signature cards. This language is clear and convincing evidence of the executor's intent to establish an irrevocable trust. Under Oregon law, the two Ochman accounts are written, irrevocable trusts, and thus insured separately by the FSLIC. Accordingly, we reverse.

REVERSED.