United States Court of Appeals, Eleventh Circuit. MOTORCITY OF ...

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 1United States Court of Appeals,Eleventh Circuit.MOTORCITY OF JACKSONVILLE, LTD., a limitedpartnership, By and Through its general partnerMOTORCITY OF JACKSONVILLE, INC., a Floridacorporation, David S. Hess, Plaintiffs-Appellants,v.SOUTHEAST BANK N.A., David Feigenbaum,Defendants,Federal Deposit Insurance Corporation, as receiverfor Southeast Bank, N.A., Defendant-Appellee.No. 93-4634.May 8, 1996.Automobile dealership and principal thereinbrought action against failed bank that agreed toprovide floor plan financing for dealership's inventory,based on bank's alleged negligence in failing tonotify dealership of out-of-trust sales that it discoveredduring audit of dealership's records. Uponappointment of Federal Deposit Insurance Corporation(FDIC) as receiver for bank, action was removedto federal court. The United States DistrictCourt for the Southern District of Florida, No.91-2305-CIV, Shelby Highsmith, J., found thatplaintiffs' claims were barred by common-lawD'Oench doctrine. Plaintiffs appealed. The Court ofAppeals, 39 F.3d 292, found that plaintiffs' claimsfor negligence and for breach of fiduciary dutywere free-standing torts, not barred by D'Oenchdoctrine. FDIC's petition for en banc hearing wasgranted, 58 F.3d 589, vacating panel opinion. TheCourt of Appeals, Anderson, Circuit Judge, heldthat: (1) D'Oench doctrine had not been preemptedby statutory counterpart in Financial InstitutionsReform, Recovery, and Enforcement Act(FIRREA); (2) plaintiffs' repayment of loan did notrender D'Oench doctrine inapplicable; (3) claimswere not for free standing torts, as would avoid applicationof D'Oench doctrine; (4) bank did nothave fiduciary duty to audit dealership or reportaudit findings to plaintiffs; and (5) economic lossrule prevented plaintiffs from seeking tort remediesfor negligent performance of audits.Affirmed.Birch, Circuit Judge, concurred specially and filedopinion.West Headnotes[1] Removal of Cases 334 19(8)334 Removal of Cases334II Origin, Nature, and Subject of Controversy334k19 Cases Arising Under Laws of UnitedStates334k19(8) k. Actions by or AgainstUnited States Corporations in General. Most CitedCasesFederal district court had jurisdiction over car dealership'sbreach of contract action against lenderbank, that was brought in state court but removedby defendant to federal court, due to “deemer” andremoval clauses statute governing federal court jurisdictionof suits involving FDIC, moreover, exceptionto federal jurisdiction for state actions did notapply because bank was national bank, not statechartered institution, because federal authority, notstate authority, appointed FDIC as receiver of bank,and because interpretation of federal law, includingD'Oench doctrine, was necessary to decide case.Federal Deposit Insurance Act, §§ 2[9](b)(2)(A, B,D), 2 [13](e)(1), as amended, 12 U.S.C.A. §§1819(b)(2)(A, B, D), 1823(e)(1).[2] Federal Courts 170B 817170B Federal Courts170BVIII Courts of Appeals170BVIII(K) Scope, Standards, and Extent170BVIII(K)4 Discretion of Lower Court170Bk817 k. Parties; Pleading. Most© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 3from defenses raised by debtors based on sideagreements with failed banks, apply even when customeris completely innocent of any bad faith, recklessness,or negligence. Federal Deposit InsuranceAct, § 2[13](e)(1), as amended, 12 U.S.C.A. §1823(e)(1).[9] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesD'Oench doctrine and its statutory counterpart inthe Financial Institutions Reform, Recovery, andEnforcement Act (FIRREA), which protects FDICfrom defenses raised by debtors based on sideagreements with failed banks, encourage banks andtheir customers to include entire extent of their obligationsin bank's records. Federal Deposit InsuranceAct, § 2[13](e)(1), as amended, 12 U.S.C.A. §1823(e)(1).[10] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesFederal policy expressed in D'Oench doctrine andits statutory counterpart in the Financial InstitutionsReform, Recovery, and Enforcement Act(FIRREA), to protect FDIC from defenses raised bydebtors based on side agreements with failed banks,applies in virtually all cases where federal depositoryinstitution regulatory agency is confronted withagreement not documented in institution's records.Federal Deposit Insurance Act, § 2[13](e)(1), asamended, 12 U.S.C.A. § 1823(e)(1).[11] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesFederal common law D'Oench doctrine, which protectsFDIC from defenses raised by debtors basedon side agreements with failed banks, was not preemptedby its statutory counterpart in the FinancialInstitutions Reform, Recovery, and EnforcementAct (FIRREA), since protecting FDIC from oralagreements was area of special federal concern,neither statute nor legislative histories of acts indicatedthat Congress intended to preempt federalcommon-law, statutory provisions did not addresssubstance of D'Oench doctrine, and coexistence ofD'Oench doctrine and statutory scheme fulfilledpurpose of legislation to give FDIC power to takeall actions necessary to resolve problems posed byfinancial institution in default. Federal Deposit InsuranceAct, §§ 2 [11](d)(9)(A), 2[13](e)(1), asamended, 12 U.S.C.A. §§ 1821(d)(9)(A),1823(e)(1).[12] Common Law 85 185 Common Law85k1 k. Nature and Authority in General. MostCited CasesDespite general prohibition, federal common lawoperates when necessary to protect uniquely federalinterests, to resolve disputes between state governments,and in areas in which Congress has givencourts power to develop substantive law.[13] Statutes 361 222361 Statutes361VI Construction and Operation361VI(A) General Rules of Construction361k222 k. Construction with Referenceto Common or Civil Law. Most Cited Cases(Formerly 85k13)Because application of federal common law is soclosely tied to congressional intent, task of determiningwhether particular federal statute displacesexisting federal common law requires courts to inquirecarefully into purposes of legislation, andcourt must be mindful that federal lawmakingpower is vested in legislative, not judicial, branchof government and that federal common law is of-© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 4ten merely a necessary expedient in instances inwhich Congress has not spoken to particular issue.[14] Statutes 361 222361 Statutes361VI Construction and Operation361VI(A) General Rules of Construction361k222 k. Construction with Referenceto Common or Civil Law. Most Cited Cases(Formerly 85k13)In determining whether particular federal statutedisplaces existing federal common law, courtsshould not require from Congress the same sort ofevidence of clear and manifest purpose to preemptas they would require in considering whether federalstatute displaces state law.[15] Statutes 361 239361 Statutes361VI Construction and Operation361VI(B) Particular Classes of Statutes361k239 k. Statutes in Derogation ofCommon Right and Common Law. Most CitedCasesStatutes which invade federal common law are tobe read with presumption favoring retention oflong-established and familiar principles, exceptwhen statutory purpose to contrary is evident.[16] Common Law 85 1385 Common Law85k10 Adoption and Repeal85k13 k. Constitution and Laws of UnitedStates. Most Cited CasesTo preempt federal common-law doctrine, Congressneed not affirmatively proscribe doctrine atissue, but statute's purpose to preempt, at minimum,must be evident.[17] Common Law 85 1385 Common Law85k10 Adoption and Repeal85k13 k. Constitution and Laws of UnitedStates. Most Cited CasesIn determining whether federal statute preemptsfederal common law, court should attach significanceto comprehensiveness of statutory scheme,and give full recognition to fact that federal commonlaw is subject to paramount authority of Congress,since application of federal common lawmight interfere with statutory scheme that is comprehensivein scope.[18] Constitutional Law 92 248892 Constitutional Law92XX Separation of Powers92XX(C) Judicial Powers and Functions92XX(C)2 Encroachment on Legislature92k2485 Inquiry Into Legislative Judgment92k2488 k. Policy. Most CitedCases(Formerly 92k70.3(3))Federal courts are not free to contradict congressionalpolicy choice that speaks directly to particularquestion previously answered by federal commonlaw.[19] Statutes 361 222361 Statutes361VI Construction and Operation361VI(A) General Rules of Construction361k222 k. Construction with Referenceto Common or Civil Law. Most Cited Cases(Formerly 35k13, 85k13)Question of whether previously available federalcommon-law action has been displaced by federalstatutory law involves assessment of scope of legislationand whether scheme established by Congressaddresses problem formerly governed by federalcommon law.[20] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings in© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 5General. Most Cited CasesFederal common law D'Oench doctrine is not limitedto claims relating to specific asset of bank thathas been acquired by FDIC, although claims understatutory counterpart in the Financial InstitutionsReform, Recovery, and Enforcement Act (FIRREA)are so limited. Federal Deposit Insurance Act, §§ 2[11](d)(9)(A), 2[13](e)(1), as amended, 12U.S.C.A. §§ 1821(d)(9)(A), 1823(e)(1).[21] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesAutomobile dealership's repayment of loan prior tofiling action against lender that provided floor planfinancing did not preclude application of D'Oenchdoctrine, which protects FDIC from defenses raisedby debtors based on side agreements with failedbanks, since doctrine was not limited by specificasset requirement of its statutory counterpart in theFinancial Institutions Reform, Recovery and EnforcementAct (FIRREA). Federal Deposit InsuranceAct, §§ 2[11] (d)(9)(A), 2[13](e)(1), asamended, 12 U.S.C.A. §§ 1821(d)(9)(A),1823(e)(1).[22] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesD'Oench doctrine, which protects FDIC from defensesraised by debtors based on side agreementswith failed banks, barred automobile dealership thatbrought action against lender that provided floorplan financing from offering extrinsic evidence toalter or explain written loan terms; FDIC, as receiverof failed bank, was entitled to rely on bank's recordsto ascertain extent of bank's contractual obligationspursuant to floor plan financing arrangement.Federal Deposit Insurance Act, § 2[13](e)(1),as amended, 12 U.S.C.A. § 1823(e)(1).[23] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesD'Oench doctrine, which protects FDIC from defensesraised by debtors based on side agreementswith failed banks, bars all claims, even thosesounding in tort, which are sufficiently intertwinedwith regular banking transactions that exclusion ofthe alleged secret agreement accords with underlyingpolicies of doctrine; thus, tort claim involvingany scheme or arrangement whereby banking authorityis likely to be misled cannot be assertedagainst banking authority.[24] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesPrincipal policies underlying D'Oench doctrine areto permit federal and state bank examiners to relyupon bank's records of regular banking transactionsin evaluating institution's fiscal soundness, to ensuremature consideration of unusual loan transactionsby senior bank officials, and to prevent fraudulentinsertion of new terms, with collusion of bankemployees, when bank appears headed for failure.[25] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesIn determining whether free standing tort exceptionto D'Oench doctrine applies, key inquiry is one ofrelatedness to ordinary banking transactions, andrelatedness requirement rests upon recognition thatdoctrine does not encompass those free-standingtorts which do not implicate records of regularbanking transactions.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 6[26] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesD'Oench doctrine, which protects FDIC from defensesraised by debtors based on side agreementswith failed banks, also bars reliance on oral agreementsto support tort claims that relate directly toordinary banking transactions and involve obligationsof lender that should be reflected in records ofregular banking transactions.[27] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesFree-standing tort exception to D'Oench doctrinedid not apply to automobile dealership's claims thatlender breached fiduciary duty to notify dealershipof out-of-trust sales discovered during audits andthat lender acted negligently by conducting auditsin unreasonable fashion, since lender's alleged oralagreements to audit and advise dealership of irregularitiesoccurred during negotiations for loan andwere intimately related to floor plan financing arrangement,constituting part of regular bankingtransaction which should have been reflected in records.[28] Banks and Banking 52 10052 Banks and Banking52III Functions and Dealings52III(A) Banking Franchises and Powers,and Their Exercise in General52k100 k. Torts. Most Cited CasesUnder Florida law, lender does not ordinarily owefiduciary duties to its borrower.[29] Fraud 184 7184 Fraud184I Deception Constituting Fraud, and LiabilityTherefor184k5 Elements of Constructive Fraud184k7 k. Fiduciary or Confidential Relations.Most Cited CasesUnder Florida law, in order to establish fiduciaryrelationship, there must be allegation of dependencyby one party and voluntary assumption of dutyby other party to advise, counsel, and protect weakerparty; fact that one party places its trust in otherdoes not create confidential relationship in absenceof some recognition, acceptance, or undertaking ofduties of fiduciary on part of other party.[30] Banks and Banking 52 10052 Banks and Banking52III Functions and Dealings52III(A) Banking Franchises and Powers,and Their Exercise in General52k100 k. Torts. Most Cited CasesUnder Florida law, bank's longstanding relationshipwith customer, without more, cannot transformlender-borrower relationship into fiduciary one.[31] Banks and Banking 52 10052 Banks and Banking52III Functions and Dealings52III(A) Banking Franchises and Powers,and Their Exercise in General52k100 k. Torts. Most Cited CasesUnder Florida law, bank's act of auditing automobiledealership and sending summary audit reportsto absentee owners did not constitute circumstancesexceeding ordinary commercial transactiongiving rise to fiduciary duty, since act was not inconsistentwith bank's role as lender.[32] Banks and Banking 52 10052 Banks and Banking52III Functions and Dealings52III(A) Banking Franchises and Powers,and Their Exercise in General52k100 k. Torts. Most Cited CasesBank that audits its borrower's inventory and sends© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 7borrower courtesy copy or summary audit reporthas not acted inconsistently with its role as lender,as would allow inference of fiduciary duty underFlorida law.[33] Negligence 272 210272 Negligence272II Necessity and Existence of Duty272k210 k. In General. Most Cited Cases(Formerly 272k2)Under Florida law, no defendant may be held liablefor negligence unless he owes legal duty to protectplaintiff from harm.[34] Banks and Banking 52 10052 Banks and Banking52III Functions and Dealings52III(A) Banking Franchises and Powers,and Their Exercise in General52k100 k. Torts. Most Cited CasesWith respect to loan transactions, Florida law doesnot impose any duty on lender to monitor projects itfinances for protection of borrowers; to be held liablefor negligence, bank must somehow voluntarilyassume duty to protect borrower through performanceof audits.[35] Negligence 272 218272 Negligence272II Necessity and Existence of Duty272k217 Voluntarily Assumed Duty272k218 k. In General. Most Cited Cases(Formerly 272k2)Under Florida law, tort duty is only implied by conductwhen actions are undertaken for benefit of another;duty cannot be inferred merely on account ofactions undertaken pursuant to protection of one'sown interests.[36] Negligence 272 218272 Negligence272II Necessity and Existence of Duty272k217 Voluntarily Assumed Duty272k218 k. In General. Most Cited Cases(Formerly 272k2)Under Florida law, actions undertaken pursuant toprotection of one's own interests do not constitutevoluntary assumption of duty, for purposes of negligenceaction.[37] Damages 115 36115 Damages115III Grounds and Subjects of CompensatoryDamages115III(A) Direct or Remote, Contingent, orProspective Consequences or Losses115III(A)1 In General115k35 Pecuniary Losses115k36 k. In General. Most CitedCasesAutomobile dealership's claims against lender fornegligently conducting audits were barred by Florida'seconomic loss rule, which prohibits purchaserof services from recovering purely economic lossesin tort unless other party's conduct establishes tortdistinguishable from or independent of breach ofcontract, since claim was not independent of floorplan financing arrangement, and alternative meansof recovery existed.[38] Torts 379 118379 Torts379I In General379k116 Injury or Damage from Act379k118 k. Economic Loss Doctrine.Most Cited Cases(Formerly 379k5)Under Florida's economic loss rule, which prohibitspurchaser of services from recovering purely economiclosses in tort unless other party's conduct establishestort distinguishable from or independentof breach of contract, “economic loss” includesdamages for inadequate value, costs of repair andreplacement of defective product, or consequentloss of profits, without any claim for personal injuryor damage to other property.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 8[39] Torts 379 118379 Torts379I In General379k116 Injury or Damage from Act379k118 k. Economic Loss Doctrine.Most Cited Cases(Formerly 379k5)Rationale underlying Florida's economic loss rule,which prohibits purchaser of services from recoveringpurely economic losses in tort unless otherparty's conduct establishes tort distinguishable fromor independent of breach of contract, is that partieswho have allocated risks among themselves by contractshould not be permitted to ignore their bargainafter incurring loss involving subject matter of contract.*1321 Dyanne E. Feinberg, Miami, FL, for appellants.Kipp A. Coddington, Christopher D. Cerf, DanielE. Troy, Stephen Goldman, Washington, DC, forMotorcity & David Hess.Julie Feigeles, Miami, FL, S. Alyssa Roberts,James Scott Watson, Washington, DC, for appellees.Appeal from the United States District Court for theSouthern District of Florida.Before TJOFLAT, Chief Judge, and KRAVITCH,HATCHETT, ANDERSON, EDMONDSON, COX,BIRCH, DUBINA, BLACK, CARNES and BAR-KETT, Circuit Judges.ANDERSON, Circuit Judge:I. INTRODUCTIONIn this decision, we consider whether the districtcourt correctly granted a motion to dismiss in favorof appellee Federal Deposit Insurance Corporation(“FDIC”) based upon the D'Oench doctrine. SeeD'Oench, Duhme & Co., Inc. v. FDIC, 315 U.S.447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). For thereasons that follow, we affirm the judgment of thedistrict court.II. FACTSThis case arises from the banking relationship ofappellants Motorcity of Jacksonville, Ltd., Motorcityof Jacksonville, Inc., and *1322 David S. Hess(collectively “Motorcity”) FN1 with the financialinstitution of Southeast Bank, N.A. (“Southeast”).We assume the following allegations from Motorcity'spleadings to be true for purposes of resolvingthe FDIC's motion to dismiss. In 1986, Motorcityand Southeast negotiated a floor plan financingagreement, under which Southeast agreed to lendMotorcity funds to purchase inventory for its usedcar dealership. During the negotiations, Motorcityorally informed Southeast that appellant DavidHess and other Motorcity investors lacked experiencein running a car dealership and planned to operatethe dealership as absentee owners. Southeastorally assured Motorcity that its personnel were experiencedwith floor plan financing and that “thebank ‘knew what it was doing.’ ” R2-58 Ex. 1 14.Of particular concern to both Southeast and Motorcitywere “out-of-trust” sales, which occur whenevera dealership fails to use the proceeds from thesale of a vehicle to repay the loan designated forthat vehicle. Continued unchecked, such outof-trustsales could pose a threat to a dealership'sfinancial viability.FN1. Motorcity of Jacksonville, Ltd., wasa limited partnership engaged in the businessof selling used vehicles in DuvalCounty, Florida. Motorcity of Jacksonville,Inc., a Florida corporation, was the limitedpartnership's general partner. David S.Hess, a Jacksonville cardiologist, was thepresident and a principal shareholder ofMotorcity of Jacksonville, Inc.Motorcity and Southeast executed a written floorplan financing agreement in June 1987. Pursuant to© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 9the floor plan financing agreement, Southeast retainedthe right to audit Motorcity's records. FN2Southeast hired an independent contractor to auditMotorcity on a monthly basis. Through theseaudits, Southeast allegedly discovered a pattern ofout-of-trust sales at the dealership: rather than repayingthe floor plan loans, Motorcity's managerswere using the sales proceeds from vehicles to paythemselves unearned bonuses. Although Southeastor its auditor sent summary audit reports to Motorcity,the bank failed to disclose these out-of-trustsales to Motorcity.FN2. In the written agreement, Motorcitymade the following affirmative covenant toSoutheast:[Motorcity] will keep and maintain fulland accurate accounts and records of itsoperations ... and will permit [Southeast]and its designated officers, employees,agents and representatives, to have accessthereto and to make examinationthereof at all reasonable times, to makeaudits, and to inspect and otherwisecheck its properties, real, personal andmixed.R1-35 Ex. B 5.7.In February 1989, Motorcity learned from itsnewly-hired general manager that the dealershipwas out-of-trust more than $400,000. Motorcity immediatelynotified Southeast of the situation.Southeast demanded immediate payment for the entireout-of-trust amount, but Motorcity was unableto meet the bank's demand. Southeast took possessionof Motorcity's collateral, including the dealershipitself and $375,000 in certificates of deposit.Motorcity repaid all of its loans to Southeast byApril 1990.III. PROCEEDINGS BELOWMotorcity sued Southeast and one of its employeesin Florida state court, alleging breach of fiduciaryduty, breach of oral contract, and negligence. Lessthan a year later, in September 1991, the Office ofthe Comptroller of the Currency declared Southeastinsolvent and appointed the FDIC as receiver forthe failed bank. The FDIC was substituted forSoutheast as defendant in the state court action, andthe FDIC removed the case to federal court.Motorcity amended its complaint to state a claimonly for breach of written contract. The districtcourt dismissed this amended complaint for failureto state a claim upon which relief could be granted.The court found that the floor plan financing agreementgave Southeast the right, but not the duty, toaudit Motorcity; thus Southeast was under no contractualobligation to inform Motorcity of the outof-trustsales. The court further ruled that theD'Oench doctrine and 12 U.S.C. § 1823(e)(1) requiredany agreement between a failed financial institutionand its customer to be in writing; consequently,any claims for breach of oral contractwere barred. Finally, the court held that theD'Oench doctrine also foreclosed Motorcity's putativetort claims. The court reasoned *1323 that“[t]he genesis of this action is the Southeast floorplan financing agreement, whose written provisionsdo not support a breach of contract claim againstthe FDIC. No amount of artful pleading, includingfurther amendments to the complaint, can alter thisresult.” R2-52-8.Motorcity moved for a rehearing and for leave toamend its complaint to add tort claims for negligenceand for breach of fiduciary duty to notify.The district court denied both motions. In its omnibusorder, the court reiterated that the D'Oench doctrinebarred all oral contract claims, including thoseclaims recast as tort actions by “ ‘artful pleading.’ ”R2-67-1-2.[1] On appeal, a panel of this court held that Motorcity'sstate law tort claims for negligence and forbreach of fiduciary duty were free standing torts,not barred by the D'Oench doctrine. Motorcity ofJacksonville, Ltd. v. Southeast Bank, N.A., 39 F.3d292 (11th Cir.1994). The FDIC's petition for en© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 10banc hearing was granted, thus vacating the panelopinion. 58 F.3d 589 (11th Cir.1995). FN3FN3. Part IIA of the panel opinion was notreconsidered by the en banc court and isREINSTATED, with the exception of thelast sentence.It is clear that the district court had jurisdictionfor several reasons including the“deemer” clause, 12 U.S.C. §1819(b)(2)(A), and the removal clause,id. § 1819(b)(2)(B), pursuant to whichthe district court properly allowed theFDIC to remove the case to federalcourt. The exception to federal jurisdictionprovided by 12 U.S.C. §1819(b)(2)(D) does not apply becauseSoutheast was a national bank, not astate chartered institution, because a federalauthority, not a state authority, appointedthe FDIC as receiver of Southeast,and because the interpretation offederal law (i.e., the D'Oench doctrineand its statutory counterparts) is necessaryto decide this case.IV. STANDARD OF REVIEW FN4FN4. This Part substantially adopts thepanel opinion's statement of the standardof review.[2][3] Motorcity appeals solely the district court'sdenial of its motion to file a second amended complaintto add its proposed tort claims. Our reviewstandard for a district court's denial of a motion toamend a complaint is abuse of discretion. ZenithRadio Corp. v. Hazeltine Research, Inc., 401 U.S.321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971);Shipner v. Eastern Air Lines, Inc., 868 F.2d 401,407 (11th Cir.1989). After a responsive pleadinghas been filed, subsequent amendments are permissibleonly with leave of court, which “shall befreely given when justice so requires.” Fed.R.Civ.P.15(a). This liberal policy of allowing amendmentsunder Rule 15(a) “circumscribes the exercise of thedistrict court's discretion; thus, unless a substantialreason exists to deny leave to amend, the discretionof the district court is not broad enough to permitdenial.” Shipner, 868 F.2d at 407; see also Moore v.Baker, 989 F.2d 1129, 1131 (11th Cir.1993)(holding that “a justifying reason must be apparentfor denial of a motion to amend”) (emphasis added).[4][5][6] In this case, the district court denied Motorcity'smotion to amend based on the court's legaldetermination that Motorcity's proposed tort claimswere barred by the D'Oench doctrine. The futilityof a proposed amended complaint can be a justifiablereason for denying leave to amend. Foman v.Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9L.Ed.2d 222 (1962); Moore, 989 F.2d at 1131.When a district court denies leave to amend a complaintbecause of futility, we review de novo.Keweenaw Bay Indian Community v. State, 11 F.3d1341, 1348 (6th Cir.1993); see also In re GeriZahn, Inc., 25 F.3d 1539, 1542 (11th Cir.1994)(explaining that the applicability of the D'Oenchdoctrine is a question of law, subject to de novo review);Freer v. Dugger, 935 F.2d 213, 216 (11thCir.1991) ( “Regarding the standard of review, conclusionsof law by the district court are not bindingon appellate courts and this court is free to substituteits judgment for the district court's on mattersof law.”) Accordingly, we review de novo the districtcourt's determination that Motorcity's tortclaims are barred by the D'Oench doctrine and itsstatutory counterpart, 12 U.S.C. § 1823(e)(1).V. DISCUSSIONOur analysis begins with an examination of theD'Oench doctrine's origins and with the *1324 leadingcase itself, D'Oench, Duhme & Co., Inc. v. FD-IC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956(1942). In that case, the Supreme Court created afederal common law doctrine of estoppel to protectthe FDIC from defenses raised by debtors based on© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 11“secret agreements” with failed banks. D'Oench involveda securities dealer who sold a bank somebonds which later became worthless. To prevent thepast due bonds from appearing among the assets ofthe bank, the dealer executed a demand note withthe bank and entered into a separate agreement withthe bank that the note would not be called for payment.The FDIC later acquired the note in a purchaseand assumption transaction. When the FDICdemanded payment on the note, the maker defendedon the basis of the side agreement with the bank, inwhich the bank promised not to call the note forpayment. Id. at 454, 62 S.Ct. at 678. The lowercourts applied Illinois state law and held that theFDIC was entitled to recover on the note as a“holder in due course.” Id. at 455, 62 S.Ct. at 678.The Supreme Court rejected the lower courts' use ofstate law and instead created a federal common lawrule by drawing an analogy to provisions of theFederal Reserve Act, which “reveal[ed] a federalpolicy to protect [the FDIC] and the public fundswhich it administers against misrepresentations asto the securities or other assets in the portfolios ofthe banks which [the FDIC] insures or to which itmakes loans.” Id. at 457, 62 S.Ct. at 679. The Courtheld that a “secret agreement” outside the documentscontained in the bank's records would not operateas a defense against a suit by the FDIC on thenote. Id. at 459, 62 S.Ct. at 680. Significantly, theCourt added that the maker of the note did not haveto intend to deceive anyone; it was sufficient “thatthe maker lent himself to a scheme or arrangementwhereby the banking authority ... was likely to bemisled.” Id. at 460, 62 S.Ct. at 681.[7][8][9] Eight years later, Congress partially codifiedthe holding in D'Oench as section 2(13)(e) ofthe Federal Deposit Insurance Act of 1950, 64 Stat.873, 889, as amended, 12 U.S.C. § 1823(e)(1),which provided:No agreement which tends to diminish or defeatthe right, title or interest of the Corporation[FDIC] in any asset acquired by it under this section,either as security for a loan or by purchase,shall be valid against the Corporation unless suchagreement (1) shall be in writing, (2) shall havebeen executed by the bank and the person or personsclaiming an adverse interest thereunder, includingthe obligor, contemporaneously with theacquisition of the asset by the bank, (3) shallhave been approved by the board of directors ofthe bank or its loan committee, which approvalshall be reflected in the minutes of said board orcommittee, and (4) shall have been, continuously,from the time of its execution, an official recordof the bank. FN5FN5. As originally enacted in 1950, §1823(e) also included a paragraph that authorizedthe FDIC to engage in purchaseand assumption transactions. This paragraphwas moved to 12 U.S.C. § 1823(c)by the Garn-St. Germain Depository InstitutionsAct of 1982, Pub.L. No. 97-320, 96Stat. 1469 (1982).Thus, “[t]he statute makes the common law principleboth more encompassing and more precise.”FDIC v. O'Neil, 809 F.2d 350, 353 (7th Cir.1987).By allowing the FDIC to rely on the records of thebank, the specific recording requirements of §1823(e) enable the FDIC to determine quicklywhether to engage in a purchase and assumptiontransaction, or whether to liquidate the failed bankand pay off insured deposits. FN6 The SupremeCourt explained:FN6. When a bank fails, the FDIC actssimultaneously in two capacities: the receivercapacity (“FDIC-Receiver”) and thecorporate capacity (“FDIC-Corporate”).The corporate capacity of the FDIC refersto its role as the insurer of bank deposits.Rather than liquidating a bank when itfails, the FDIC whenever feasible employsa purchase and assumption transaction. Ina purchase and assumption transaction, theFDIC-Receiver sells the failed bank as agoing concern to a financially sound bank,© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 12in return for the purchasing bank's promiseto assume all the failed bank's deposit liabilities.Unacceptable assets remain with theFDIC-Receiver. FDIC-Corporate then purchasesthe unacceptable assets with insurancefunds, and attempts to collect on theunacceptable assets to minimize the FD-IC's losses. See generally Gunter v.Hutcheson, 674 F.2d 862, 865-66 (11thCir.) (explaining the mechanics of a purchaseand assumption transaction), cert.denied, 459 U.S. 826, 103 S.Ct. 60, 74L.Ed.2d 63 (1982).*1325 [This] evaluation, in particular, must bemade “with great speed, usually overnight, in orderto preserve the going concern value of thefailed bank and avoid an interruption in bankingservices.” Neither the FDIC nor state banking authoritieswould be able to make reliable evaluationsif bank records contained seemingly unqualifiednotes that are in fact subject to undisclosedconditions.Langley v. FDIC, 484 U.S. 86, 91-92, 108 S.Ct.396, 401, 98 L.Ed.2d 340 (1987) (quoting Gunterv. Hutcheson, 674 F.2d 862, 865 (11th Cir.), cert.denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d63 (1982) (citations omitted)). In addition to requiringan alleged agreement to appear in thebank's records, § 1823(e) requires the agreementto “have been executed ‘contemporaneously’with the making of the note and to have been approvedby officially recorded action of the bank'sboard or loan committee.” Id. at 92, 108 S.Ct. at401. The Court explained:These ... requirements ensure mature considerationof unusual loan transactions by senior bank officials,and prevent fraudulent insertion of newterms, with the collusion of bank employees,when a bank appears headed for failure.Id. However, it is “clear that the D'Oench doctrineapplies even where the customer is completelyinnocent of any bad faith, recklessness, or negligence.”Baumann v. Savers Fed. Sav. & LoanAss'n, 934 F.2d 1506, 1515 (11th Cir.1991), cert.denied, 504 U.S. 908, 112 S.Ct. 1936, 118L.Ed.2d 543 (1992). Thus, § 1823(e) and theD'Oench doctrine encourage “banks and theircustomers [to] include the entire extent of theirobligations in the bank's records.” Id.; see alsoBell & Murphy & Assoc. v. Interfirst Bank Gateway,N.A., 894 F.2d 750, 754 (5th Cir.) (“TheD'Oench, Duhme doctrine ... favors the interestsof depositors and creditors of a failed bank, whocannot protect themselves from secret agreements,over the interests of borrowers, whocan.”), cert. denied, 498 U.S. 895, 111 S.Ct. 244,112 L.Ed.2d 203 (1990); In re NBW CommercialPaper Litigation, 826 F.Supp. 1448, 1461-62(D.D.C.1992) (describing D'Oench and § 1823(e)as “a regime that places the risk on borrowers ifthey do not get all of the terms of their agreementsin writing”).[10] As originally enacted in 1950, § 1823(e)(1)paralleled the facts of the D'Oench case itself: it appliedonly to the FDIC in its corporate capacitywhen it purchased bank assets from its receivershipdivision. Vernon v. RTC, 907 F.2d 1101, 1105 (11thCir.1990). However, the federal policy expressed inthe D'Oench decision “applies in virtually all caseswhere a federal depository institution regulatoryagency is confronted with an agreement not documentedin the institution's records.” OPS ShoppingCtr., Inc. v. FDIC, 992 F.2d 306, 308 (11thCir.1993) (quoting Baumann, 934 F.2d at 1510).Courts therefore applied the federal common lawD'Oench doctrine to protect certain entities notcovered by the language of § 1823(e)(1)-including,for example, the FDIC as receiver, the Federal Savingsand Loan Insurance Corporation (“FSLIC”),and transferees of assets (such as bridge banks)from banking regulatory agencies. See, e.g., FSLICv. Two Rivers Assocs., Inc., 880 F.2d 1267, 1274,1276-77 (11th Cir.1989) (holding that the federalcommon law D'Oench doctrine protects the FSLICand the FDIC in both receiver and corporate capacities);Newton v. Uniwest Fin. Corp., 967 F.2d340, 347 (9th Cir.1992) (extending the D'Oench© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 13doctrine to a private bank, as the FSLIC's successor-in-interestin a note); Timberland Design,Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 49(1st Cir.1991) (per curiam) (citing cases for theproposition that “courts have consistently appliedthe [D'Oench ] doctrine to those situations wherethe FDIC was acting in its capacity as receiver”);Kilpatrick v. Riddle, 907 F.2d 1523, 1528 (5thCir.1990) (extending the D'Oench doctrine to theFDIC's assignee, a bridge bank), cert. denied subnom. Rogers v. FDIC, 498 U.S. 1083, 111 S.Ct.954, 112 L.Ed.2d 1042 (1991); Porras v. PetroplexSav. Ass'n, 903 F.2d 379, 381 (5th Cir.1990)(extending the D'Oench doctrine's protection totransferees of assets from the FSLIC in purchaseand assumption transactions); FDIC v. First Nat'lFin. Co., 587 F.2d 1009, 1012 (9th Cir.1978)(rejecting the argument that the D'Oench doctrinedoes not apply to the FDIC as receiver). Courts alsoapplied the D'Oench bar to secret agreements*1326between borrowers and a subsidiary of the failedfinancial institution under the regulatory agency'scontrol. See Victor Hotel Corp. v. FCA Mortg.Corp., 928 F.2d 1077, 1083 (11th Cir.1991);Robinowitz v. Gibraltar Sav., 23 F.3d 951, 956 (5thCir.1994) (holding that D'Oench applies to secretside agreements made by subsidiaries and subsubsidiariesof the failed institution in receivership),cert. denied, 513 U.S. 1078, 115 S.Ct. 725,130 L.Ed.2d 630 (1995); Sweeney v. RTC, 16 F.3d1, 4 (1st Cir.) (per curiam) (holding that theD'Oench doctrine extends to claims involving awholly owned subsidiary of the failed financial institutionin receivership), cert. denied, 513 U.S.914, 115 S.Ct. 291, 130 L.Ed.2d 206 (1994); Oliverv. RTC, 955 F.2d 583, 585-86 (8th Cir.1992)(holding that the “ D'Oench doctrine extendsbroadly to cover any secret agreement adversely affectingthe value of a financial interest that hascome within the RTC's control as receiver of afailed financial institution” including the financialinterest of a wholly-owned subsidiary). Furthermore,as originally enacted, § 1823(e)(1) generallyapplied only to preclude defenses raised by borrowersto avoid repaying their loans. Thigpen v. Sparks,983 F.2d 644, 647-48 (5th Cir.1993). Courts appliedthe federal common law D'Oench doctrine tobar the assertion of affirmative claims against theFDIC, including claims sounding in tort. See RTCv. Dunmar Corp., 43 F.3d 587, 595 (11th Cir.) (enbanc) (holding that “D'Oench bars defenses and affirmativeclaims whether cloaked in terms of contractor tort, as long as those claims arise out of analleged secret agreement” (quoting Timberland, 932F.2d at 50)), cert. denied sub nom. Jones v. RTC,516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995);Beighley v. FDIC, 676 F.Supp. 130, 132(N.D.Tex.1987) (“To allow a claim against the FD-IC asserting the very grounds that could not be usedas a defense to a claim by the FDIC is to let technicalitystand in the way of principle.”), on reh'g,679 F.Supp. 625 (N.D.Tex.1988), aff'd, 868 F.2d776 (5th Cir.1989). In Dunmar, we reiterated thiscircuit's D'Oench rule, which reflects the judicialextensions of the doctrine over the years:In a suit over the enforcement of an agreement originallyexecuted between an insured depositoryinstitution and a private party, a private partymay not enforce against a federal deposit insurerany obligation not specifically memorialized in awritten document such that the agency would beaware of the obligation when conducting an examinationof the institution's records.Id. at 593 (quoting OPS, 992 F.2d at 308 and Baumann,934 F.2d at 1515). FN7FN7. Courts that expanded the D'Oenchdoctrine often applied the common law and§ 1823(e)(1) in tandem, reasoning that “thepurposes of D'Oench and section 1823(e)were the same, and therefore ... the sameanalysis [applied] regardless of whetherthe party involved in the case was the FD-IC or another federal banking regulator.”Baumann, 934 F.2d at 1515. Cases interpretingeither common law D'Oench or §1823(e)(1) were both considered precedent.Id. In the only Supreme Court decisiondirectly addressing § 1823(e), the Court© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 14unanimously agreed that the statute shouldbe interpreted broadly, so as not “to disservethe principle of [D'Oench ].” Langleyv. FDIC, 484 U.S. 86, 92-93, 108 S.Ct.396, 402, 98 L.Ed.2d 340 (1987).In the wake a mounting crisis in the banking andthrift industry, Congress enacted the Financial InstitutionsReform, Recovery, and Enforcement Actof 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat.183, inter alia, “to give the FDIC power to take allactions necessary to resolve the problems posed bya financial institution in default.” FDIC v. Wright,942 F.2d 1089, 1095-96 (7th Cir.1991) (quotingH.R.Rep. No. 54(I), 101st Cong., 1st Sess. 330, reprintedin 1989 U.S.Code Cong. & Admin.News126), cert. denied, 504 U.S. 909, 112 S.Ct. 1937,118 L.Ed.2d 544 (1992). FIRREA substantially codifiedseveral of the significant common law developmentsin the D'Oench doctrine, expanding the applicabilityof § 1823(e) to the FDIC in its receivershipcapacity, FN8 to the newly-created ResolutionTrust Corporation (RTC) in either its corporate*1327 or receivership capacity, FN9 and to bridgebanks. FN10 FIRREA also added 12 U.S.C. §1821(d)(9)(A), which explicitly extends the protectionof § 1823(e) to affirmative claims against thebanking authority. It provides that “any agreementwhich does not meet the requirements set forth in §1823(e) ... shall not form the basis of, or substantiallycomprise, a claim against the receiver or theCorporation.” The substance of § 1823(e)-i.e., therange of secret agreements prohibited by the statute-wasleft untouched. FN11FN8. Section 217(4) of FIRREA expandedthe applicability of § 1823(e) to the FDICin its receiver capacity by adding thewords “or as receiver of any insured depositoryinstitution.” 1989 U.S.Code Cong.& Admin.News (103 Stat.) 183, 256.FN9. 12 U.S.C. § 1441a(b)(4)(A) (Supp. V1993) (superseded) granted the RTCpowers similar to those enjoyed by the FD-IC, including the power to invoke §1823(e).FN10. 12 U.S.C. § 1821(n)(4)(I) protectsbridge banks with language borrowed from§ 1823(e).FN11. FIRREA made minor amendmentsto § 1823(e) by deleting the words “right,title and” from before the word “interest”and by changing the verbs in the subparagraphsto the present tense.Motorcity makes several arguments in its effort toprevent the application of the D'Oench doctrine toits claims against the FDIC. First, Motorcity arguesthat the federal common law D'Oench doctrine hasbeen preempted by statute and that therefore theFDIC must rely exclusively on §§ 1821(d)(9)(A)and 1823(e)(1), the statutory cousins of theD'Oench doctrine. Second, Motorcity argues that §§1821(d)(9)(A) and 1823(e)(1) bar only those claimsthat impair the FDIC's interest in a specific bank asset.Because Motorcity paid off its loan to Southeastbefore the FDIC's appointment as receiver,Motorcity argues that these statutory provisions donot apply to its claims. Third, Motorcity argues thatits claims against the FDIC are “free standing tortclaims,” which are not barred by the D'Oench doctrine.Finally, even if the D'Oench doctrine preventsany reliance on oral agreements or representations,Motorcity suggests that its state law tort claims arestill viable. We address each of Motorcity's argumentsin turn.A. Has the Federal Common Law D'Oench DoctrineBeen Preempted by Statute?[11] We first address Motorcity's argument that thefederal common law D'Oench doctrine has beenpreempted by statute. In Murphy v. FDIC, 61 F.3d34 (D.C.Cir.1995), the D.C. Circuit recently heldthat the Supreme Court's reasoning in O'Melveny &Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129L.Ed.2d 67 (1994), leads “ineluctably” to the conclusionthat the common law D'Oench doctrine has© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 15been preempted. Id. at 38; see also DiVall InsuredIncome Fund Ltd. Partnership v. Boatmen's FirstNat'l Bank of Kansas City, 69 F.3d 1398, 1402 (8thCir.1995) (following Murphy 's reasoning and holdingthat the federal holder in due course andD'Oench doctrines have been preempted). We disagreewith the analysis of the D.C. and the EighthCircuits and hold that the federal common lawD'Oench doctrine has not been preempted by statute.Our analysis of the preemption issue begins with adiscussion of the effect of federal statutes on thefederal common law, in light of the role that thefederal common law plays in our system. In Swift v.Tyson, 41 U.S. (16 Pet.) 1, 18-19, 10 L.Ed. 865(1842), the Supreme Court held that, in the absenceof a state statutory or constitutional provision, federalcourts sitting in diversity should not apply astate court's common law decisions. Rather, federalcourts should fashion their own federal commonlaw rules by consulting “the general principles anddoctrines of ... jurisprudence.” Id. at 19. Almost acentury later, in Erie R.R. Co. v. Tompkins, 304U.S. 64, 78-80, 58 S.Ct. 817, 822-23, 82 L.Ed.1188 (1938), the Supreme Court expressly overruledSwift, holding unconstitutional the federalcommon law regime created by that decision. Writingfor the Court, Justice Brandeis flatly declared:“There is no federal general common law.” TheCourt explained that the Swift doctrine representedan unconstitutional invasion by the federal courtsinto the powers “reserved by the Constitution to theseveral states.” Id. at 79-80, 58 S.Ct. at 823.[12] However, the holding in Erie did not destroyall types of federal common law. Since Erie, theSupreme Court “has recognized the need and authorityin some limited areas to formulate what hascome to be *1328 known as ‘federal common law.’” Texas Indus., Inc. v. Radcliff Materials, Inc., 451U.S. 630, 640, 101 S.Ct. 2061, 2067, 68 L.Ed.2d500 (1981). In particular, federal courts have createdand applied federal common law when necessaryto protect certain “uniquely federal interests.”Boyle v. United Technologies Corp., 487 U.S. 500,504, 108 S.Ct. 2510, 2514, 101 L.Ed.2d 442 (1988)(holding that federal common law governs the tortliability of a helicopter manufacturer to a deceasedpilot, where the manufacturer supplies the helicoptersto the federal government); see also UnitedStates v. Kimbell Foods, Inc., 440 U.S. 715,726-27, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711(1979) (holding that the priority of liens stemmingfrom federal lending programs is a matter of federalcommon law); Howard v. Lyons, 360 U.S. 593,597, 79 S.Ct. 1331, 1333-34, 3 L.Ed.2d 1454(1959) (creating a federal common-law privilegethat protects federal officers from libel and defamationsuits arising out of statements made in thecourse of duty); Clearfield Trust Co. v. UnitedStates, 318 U.S. 363, 366, 63 S.Ct. 573, 575, 87L.Ed. 838 (1943) (holding that the rights and dutiesof the United States on commercial paper which itissues are governed by federal law and that “[i]nthe absence of an applicable Act of Congress it isfor the federal courts to fashion the governing ruleof law according to their own standards.”). FN12FN12. There are other categories of federalcommon law in addition to the type createdto protect “uniquely federal interests.” Forexample, federal common law operates toresolve disputes between state governments.See, e.g., Illinois v. City of Milwaukee,406 U.S. 91, 103, 92 S.Ct. 1385, 1392,31 L.Ed.2d 712 (1972) (“When we dealwith air and water in their ambient or interstateaspects, there is a federal commonlaw.”); Hinderlider v. La Plata River &Cherry Creek Ditch Co., 304 U.S. 92, 110,58 S.Ct. 803, 811, 82 L.Ed. 1202 (1938)(“[W]hether the water of an interstatestream must be apportioned between thetwo States is a question of ‘federal commonlaw’ upon which neither the statutesnor the decisions of either state can be conclusive.”).Federal common law also operatesin areas “in which Congress has giventhe courts the power to develop substantive© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 16law.” Texas Indus., 451 U.S. at 640, 101S.Ct. at 2067. See, e.g., Firestone Tire &Rubber Co. v. Bruch, 489 U.S. 101, 110,109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989)(“[C]ourts are to develop a federal commonlaw of rights and obligations underERISA plans.” (citation and internal quotationomitted)); Nat'l Soc'y of ProfessionalEngineers v. United States, 435 U.S. 679,688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637(1978) (holding that Congress expected thecourts to “give shape” to the ShermanAct's broad mandate “by drawing on common-lawtradition”).Courts often examine the policies expressed byCongress in statutes in order to identify those“uniquely federal interests” that make necessary thedevelopment of federal common law. See, e.g.,Kimbell Foods, 440 U.S. at 727, 99 S.Ct. at 1458(describing federal common law as a means to “fillthe interstices of federal legislation”); United Statesv. Little Lake Misere Land Co., Inc., 412 U.S. 580,93 S.Ct. 2389, 37 L.Ed.2d 187 (1973) (refusing toapply state law to abrogate federal government contractsto acquire land for public use, in part becausedoing so “would deal a serious blow to the congressionalscheme contemplated by the Migratory BirdConservation Act and indeed all other federal landacquisition programs”). In these cases, the use offederal common law effectuates congressional intentand resembles the task of statutory interpretation.FN13 The D'Oench case itself is a leading exampleof the Court's use of federal statutes toidentify those “uniquely federal interests” that requirethe creation of federal common law. SeeD'Oench, 315 U.S. at 456-57, 62 S.Ct. at 679(analyzing statutory provisions that “reveal a federalpolicy to protect [the FDIC] and the public fundswhich it administers against misrepresentations asto the securities or other assets in the portfolios ofthe banks which [the FDIC] insures”). FN14FN13. See Peter Westen and Jeffrey S.Lehman, Is There Life for Erie After theDeath of Diversity?, 78 Mich.L.Rev. 311,332 (1980) (“The difference between‘common law’ and ‘statutory interpretation’is a difference in emphasis rather thana difference in kind. The more definite andexplicit the prevailing legislative policy,the more likely a court will describe itslawmaking as statutory interpretation; theless precise and less explicit the perceivedlegislative policy, the more likely a courtwill speak of common law. The distinction,however, is entirely one of degree.”).FN14. In a famous concurring opinion inD'Oench, Justice Jackson justified the developmentof federal common law as ameans to implement federal statutes. Hewrote:The federal courts have no general commonlaw, as in a sense they have no generalor comprehensive jurisprudence ofany kind, because many subjects ofprivate law which bulk large in the traditionalcommon law are ordinarily withinthe province of the states and not of thefederal government. But this is not to saythat wherever we have occasion to decidea federal question which cannot beanswered from federal statutes alone wemay not resort to all of the source materialsof the common law or that when wehave fashioned an answer it does not becomepart of the federal non-statutory orcommon law.D'Oench, 315 U.S. at 469, 62 S.Ct. at685 (Jackson, J., concurring).*1329 [13][14][15][16] Because the application offederal common law is so closely tied to congressionalintent, the task of determining whether a particularfederal statute displaces existing federalcommon law requires courts to inquire carefully intothe purposes of the legislation. Courts must bemindful that “the federal lawmaking power is ves-© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 17ted in the legislative, not the judicial branch of government,”Northwest Airlines, Inc. v. Transp. WorkersUnion of Am., 451 U.S. 77, 95, 101 S.Ct. 1571,1582, 67 L.Ed.2d 750 (1981), and that federal commonlaw is often merely a “necessary expedient” ininstances in which “Congress has not spoken to aparticular issue.” City of Milwaukee v. Illinois, 451U.S. 304, 313-14, 101 S.Ct. 1784, 1790-91, 68L.Ed.2d 114 (1981) (“ Milwaukee II ”) (emphasisadded). Accordingly, courts should not requirefrom Congress “the same sort of evidence of a clearand manifest purpose” to preempt as they require inconsidering whether a federal statute displaces statelaw. Id. at 316-17, 101 S.Ct. at 1792. FN15 At thesame time, “[s]tatutes which invade the commonlaw ... are to be read with a presumption favoringthe retention of long-established and familiar principles,except when a statutory purpose to the contraryis evident.” United States v. Texas, 507 U.S.529, 534, 113 S.Ct. 1631, 1634, 123 L.Ed.2d 245(1993) (quoting Isbrandtsen Co. v. Johnson, 343U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294(1952)). Therefore, although “Congress need not‘affirmatively proscribe’ the common law doctrineat issue,” its purpose to preempt existing federalcommon law at a minimum must be “evident.”Texas, 507 U.S. at 534, 113 S.Ct. at 1634-35.FN15. In considering whether federal legislationpreempts state law, the SupremeCourt assumes “that the historic policepowers of the States were not to be supersededby [a] Federal Act unless that wasthe clear and manifest purpose of Congress.”Id. at 316, 101 S.Ct. at 1792(quoting Jones v. Rath Packing Co., 430U.S. 519, 525, 97 S.Ct. 1305, 1309, 51L.Ed.2d 604 (1977) (quoting Rice v. SantaFe Elevator Corp., 331 U.S. 218, 230, 67S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947))).In Murphy, without mentioning the presumptionthat federal common law principles survive the enactmentof federal legislation, the D.C. Circuit heldthat FIRREA's comprehensive nature caused thefederal common law D'Oench doctrine to disappear.61 F.3d at 40. The court reached this startling conclusionby relying almost exclusively on certainlanguage in the Supreme Court's decision inO'Melveny & Myers v. FDIC, 512 U.S. 79, 114S.Ct. 2048, 129 L.Ed.2d 67 (1994). We disagreewith Murphy 's reliance on O'Melveny.In O'Melveny, the FDIC as receiver for a failed savingsand loan (S & L) brought a malpractice lawsuitagainst the S & L's former law firm, stating causesof action under California law for professional negligenceand breach of fiduciary duty. Id. at ----, 114S.Ct. at 2052. The FDIC alleged that the law firmfailed to inform the S & L of the illegal acts of theS & L's controlling officers. Id. The law firm defendedby arguing that, under California law, knowledgeof the conduct of the S & L's controlling officersmust be imputed to the S & L, and hence tothe FDIC, which, as receiver, stood in the S & L'sshoes. The FDIC urged the Supreme Court to createa new federal common law rule to govern the imputationof knowledge to the FDIC. See id.The Supreme Court began by stating that it “would[not] adopt a court-made rule to supplement federalstatutory regulation that is comprehensive and detailed;matters left unaddressed in such a schemeare presumably left to the disposition provided bystate law.” Id. at ----, 114 S.Ct. at 2054. The Courtanalyzed 12 U.S.C. § 1821(d)(2)(A)(i), as amendedby FIRREA, which defines the powers and dutiesof the FDIC as receiver *1330 by providing that theFDIC “shall ... by operation of law, succeed to-allrights, titles, powers, and privileges of the insureddepository institution....” The Court construed §1821(d)(2)(A)(i) as an exclusive grant of rights tothe FDIC as receiver and thus held that it could notbe “supplemented or modified by federal commonlaw.” Id. To support this conclusion, the Court listedseveral “provisions of FIRREA which specificallycreate special federal rules of decision regardingclaims by, and defenses against, the FDIC as receiver.”Id. The statute having carved out specificareas of federal interest to be subject to federal© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 18rules, the Court inferred “[i]nclusio unius, exclusioalterius.” Id.Although O'Melveny never mentions the D'Oenchdoctrine directly, the Court included one ofD'Oench 's statutory cousins-§ 1821(d)(9)(A)-in itslist of special federal rules of decision. In Murphy,the D.C. Circuit concluded that the Supreme Court“necessarily decided the D'Oench question” by including§ 1821(d)(9)(A) in this list. 61 F.3d at 39.The court in Murphy explained that “the inclusionof § 1821(d)(9) in the FIRREA implies the exclusionof overlapping federal common law defensesnot specifically mentioned in the statute-of whichthe D'Oench doctrine is one.” Id.We believe that Murphy erred in relying onO'Melveny. The question presented in O'Melvenywas whether the federal courts should create a newfederal common-law doctrine in an area in whichCongress had not expressed any special concern,nor indicated that a special federal rule of decisionshould govern. FN16 In this case, the questionpresented is not whether a new rule should be invented,but whether Congress intended to abrogatethe previously-established federal common-lawD'Oench doctrine, which doctrine operates in anarea of special federal concern as recognized byCongress, the Supreme Court, and the lower federalcourts. The O'Melveny analysis does not apply tothis question.FN16. See O'Melveny, 512 U.S. at ----, 114S.Ct. at 2054 (“In answering the centralquestion of displacement of California law,we of course would not contradict an explicitfederal statutory provision. Norwould we adopt a court-made rule to supplementfederal statutory regulation that iscomprehensive and detailed.... To createadditional ‘federal common law’ exceptionsis not to ‘supplement’ this scheme,but to alter it.”); id. at ----, 114 S.Ct. at2055 (“[E]ven assuming the inapplicabilityof FIRREA this is not one of those cases inwhich judicial creation of a special federalrule would be justified.... Even less persuasive-indeed,positively probative of thedangers of respondent's facile approach tofederal-common-law-making-is respondent'scontention that [California's rule ofdecision] would disserve the federal program....”);id. at ----, 114 S.Ct. at 2056(“We conclude that this is not one of thoseextraordinary cases in which the judicialcreation of a federal rule of decision iswarranted.”). (All emphasis added).We believe that United States v. Texas, 507 U.S.529, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993),rather than O'Melveny, provides the appropriateguidance for courts in their efforts to determinewhether Congress intended that FIRREA abrogatethe previously-established and longstanding federalcommon-law D'Oench doctrine. Just a year beforeO'Melveny, the Supreme Court in Texas addressedthe question of whether Congress intended to abrogatea pre-existing and longstanding federal common-lawdoctrine. There, the Court held that thepreviously-established federal common-law doctrinewas presumed to survive unless a congressionalintent to the contrary was evident. The Court expresslyrejected the argument that the “presumptionfavoring retention of existing law is appropriateonly with respect to state common law.” The Courtexplained:[T]here is no support in our cases for the propositionthat the presumption has no application tofederal common law.... “[C]ourts may take it as agiven that Congress has legislated with an expectationthat the [common law] principle willapply except ‘when a statutory purpose to thecontrary is evident.’ ”Id. at 534, 113 S.Ct. at 1634-35 (quoting AstoriaFed. Sav. and Loan Ass'n v. Solimino, 501 U.S.104, 108, 111 S.Ct. 2166, 2170, 115 L.Ed.2d 96(1991) (quoting Isbrandtsen Co. v. Johnson, 343U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294(1952))).© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 19Motorcity attempts to overcome the presumptionthat the federal common law D'Oench doctrine survivedFIRREA by arguing that Congress' “evident”purpose was *1331 to displace the D'Oench doctrine.Motorcity points out that FIRREA is a comprehensivepiece of legislation, and contends that§§ 1821(d)(9)(A) and 1823(e)(1) displace theD'Oench doctrine because those statutes “speak directly”to some of the questions previously addressedby the federal common law.[17][18] In ascertaining whether the purpose ofFIRREA was to eliminate the D'Oench doctrine,Motorcity is correct in suggesting that we shouldattach significance to the comprehensiveness of thestatutory scheme, and give full recognition to thefact that federal common law is subject to the paramountauthority of Congress. Milwaukee II, 451U.S. at 313, 101 S.Ct. at 1791. In some cases, theapplication of federal common law might interferewith a statutory scheme that is comprehensive inscope. See, e.g., id. at 317, 326, 101 S.Ct. at 1792,1797 (describing the 1972 amendments to the FederalWater Pollution Control Act as a“comprehensive regulatory program supervised byan expert administrative agency” and explaining atlength that the federal common law rule in question“would be quite inconsistent with this scheme”);Northwest Airlines, 451 U.S. at 97, 101 S.Ct. at1583-84 (explaining that the enactment of a“comprehensive legislative scheme including an integratedsystem of procedures for enforcement” indicatesthat Congress' omission of a particular remedywas deliberate and declining to “fashion newremedies that might upset carefully considered legislativeprograms”). More precisely, federal courtsare not free to contradict a congressional policychoice that “speaks directly” to a particular questionpreviously answered by federal common law.See Mobil Oil Corp. v. Higginbotham, 436 U.S.618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581(1978) (holding that, although “Congress has neverenacted a comprehensive maritime code,” federalcourts may not award “loss of society” damages undergeneral maritime law because the Death on theHigh Seas Act expressly prohibits recovery of suchdamages).[19] Thus, “the question whether a previouslyavailable federal common-law action has been displacedby federal statutory law involves an assessmentof the scope of the legislation and whether thescheme established by Congress addresses the problemformerly governed by federal common law.”Milwaukee II, 451 U.S. at 315 n. 8, 101 S.Ct. at1792 n. 8. Applying this analysis, several considerationspersuade us that Congress in enacting FIR-REA in 1989 did not intend to preempt the federalcommon law D'Oench doctrine. In §§1821(d)(9)(A) and 1823(e)(1), Congress specificallycarved out as an area of special federal concernthe area involving the protection of the FDIC fromsecret or oral agreements. FN17 Thus, the properquestion to ask is whether Congress intended §§1821(d)(9)(A) and 1823(e)(1) to eliminate the entirebody of federal common law known as theD'Oench doctrine.FN17. Also, of course, the Supreme Courtin D'Oench initially identified this specialarea of federal concern as having been revealedin provisions of the Federal ReserveAct which that opinion construed. 315 U.S.at 456-57, 62 S.Ct. at 679.As noted above, United States v. Texas, 507 U.S.529, 534-36, 113 S.Ct. 1631, 1635, 123 L.Ed.2d245 (1993) reaffirmed the principles that Congresslegislates against the background of the existingcommon law, and that Congress has legislated withan expectation that that law will apply except whena statutory purpose to the contrary is evident. Id. at534, 113 S.Ct. at 1635. In Texas, the long-establishedfederal common law was that all parties,including states, who owed contractual debts to thefederal government were obligated to pay prejudgmentinterest. The statute at issue, the Debt CollectionAct of 1982, codified that obligation with respectto private debtors and made the obligationmore specific and more onerous. The statute expresslydefined the “persons” subject to the statute,© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 20and expressly excluded state and local governmentsand agencies. 31 U.S.C. § 3701(c). The SupremeCourt rejected the argument that Congress intendedto preempt the preexisting federal common law,thus relieving states of their obligation under priorlaw to pay prejudgment interest. The Court heldthat the statute did not “speak directly” to the obligationof the states, but rather was intended to reachonly the obligations*1332 of private debtors. TheCourt was influenced by the evident purpose of thestatute-to increase the efficiency of the government'sdebt collections. The contrary reading“would have the anomalous effect of placing delinquentStates in a position where they had less incentiveto pay their debts.” Id. at 537, 113 S.Ct. at1636. The Court rejected that interpretation, whichwould undermine the evident purpose of the statute.Similarly, the question in the instant case is whetheror not it is “evident” that Congress intended topreempt the longstanding federal common lawD'Oench doctrine. There is no indication in the statuteor the legislative histories of either the 1950 orthe 1989 acts that Congress intended to preempt thefederal common law. See FDIC v. McClanahan,795 F.2d 512, 514 n. 1 (5th Cir.1986) (noting thatthe legislative history of the 1950 act does not mentionthe D'Oench decision and concluding that Congressdid not preempt D'Oench by enacting §1823(e)); In re NBW Commercial Paper Litigation,826 F.Supp. 1448, 1459 (D.D.C.1992) (noting thatthe legislative history of FIRREA is “scant” withrespect to the D'Oench doctrine and finding no indicationthat Congress intended to preempt it). Justas it had done in 1950, Congress in FIRREA incorporatedparts of the evolving common law D'Oenchdoctrine, e.g., its application in both the corporateand receivership capacities, and its application toaffirmative claims as well as defenses. Althoughthe legislative history with respect to these two sectionsof the mammoth FIRREA is sparse, what littlethere is suggests that Congress intended no changein existing law. See, e.g., H.R.Rep. No. 54(I), 101stCong., 1st Sess. 332, reprinted in 1989 U.S.CodeCong. & Admin.News 128 (describing FIRREA'saddition of § 1821(d)(9)(A): “In general [FIRREA]provides, as the FDI Act presently provides, that noagreement can form the basis of a claim against theCorporation or the conservator or receiver unless itis in writing and properly approved and maintainedin the records of the institution.”) (emphasis added);id. at 335, 1989 U.S.Code Cong. & Admin.News131 (describing the provision of FIR-REA allowing the FDIC in its receivership capacityto invoke § 1823(e) as a clarification of prior law).Significantly, neither FIRREA in general, nor §§1821(d)(9)(A) and 1823(e)(1) in particular, comprehensivelyaddress the substance of the federalcommon law D'Oench doctrine. The particular argumentthat Motorcity raises in this case-i.e., that§§ 1821(d)(9)(A) and 1823(e)(1) do not bar claimsbased on oral agreements with a failed bank if theborrower's loan is repaid before the FDIC takesover-reflects an issue which was not addressed atall by Congress in 1989. Congress did not focus onthe range of secret agreements with respect towhich the FDIC would be afforded protection.Rather, in this regard, the only relevant language isin § 1823(e)(1), which Congress merely carriedover from the statute originally enacted in 1950.We therefore see no indication either in the languageof the statute itself or in the legislative historythat Congress undertook a comprehensive examinationof the federal common law D'Oench doctrine,or made any attempt to address comprehensivelythat vast doctrine. “[S]uch reticence whilecontemplating an important and controversialchange in existing law is unlikely.... At the veryleast, one would expect some hint of a purpose towork such a change, but there was none.” Edmondsv. Compagnie Generale Transatlantique, 443 U.S.256, 266-67, 99 S.Ct. 2753, 2759-60, 61 L.Ed.2d521 (1979).Congress' purpose in passing FIRREA was tostrengthen the FDIC's long-established right to protectitself from secret agreements executed by failingbanks. See Gibson v. RTC, 51 F.3d 1016, 1020(11th Cir.1995) (“Congress enacted FIRREA in© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 211989 in response to the growing crisis in the nation'sbanking and savings and loan industries.”).One important goal of FIRREA was “to give theFDIC power to take all actions necessary to resolvethe problems posed by a financial institution in default.”FDIC v. Wright, 942 F.2d 1089, 1095-96(7th Cir.1991) (quoting H.R.Rep. No. 54(I), 101stCong., 1st Sess. 330, reprinted in 1989 U.S.CodeCong. & Admin.News 126), cert. denied, 504 U.S.909, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992). Thecoexistence of the *1333 common law D'Oenchdoctrine and the statutory scheme presents no inconsistencywith this purpose. Indeed, the historyof the interaction between the D'Oench commonlaw and the statute strongly indicates that Congressdid not intend preemption. The statute at issuebegan in 1950 as a partial codification of theD'Oench case. Subsequently, just as the D'Oenchdecision itself was a common law rule fashioned tofill the interstices of federal statutes, courts continuedto apply the common law D'Oench doctrinebeyond the confines of the statutory language in orderto fulfill Congress' purposes in enacting §1823(e)(1). Thereafter, in the intervening fortyyears, the common law D'Oench doctrine and thecases under the statute evolved together, each drawingupon the other. The Supreme Court in Langleyv. FDIC, 484 U.S. 86, 92-93, 108 S.Ct. 396, 402,98 L.Ed.2d 340 (1987), interpreted the statutebroadly in order to serve the purpose of the commonlaw D'Oench case. Since the creation of §1823(e)(1) in 1950, innumerable cases in every circuitcourt of appeals have held that the commonlaw D'Oench doctrine and the statute continued toapply and complement each other. Thus, in 1989,when Congress addressed this special area of federalconcern as a small part of the overall crisis in thebanking industry, Congress was looking at fortyyears of harmonious coexistence of the commonlaw doctrine and the statute. When Congress merelycarried over the substance of the § 1823(e)(1) language,we believe that the most reasonable readingof the congressional intent is that Congress codifiedparts of the evolving D'Oench common law, left thestate of the law unchanged, and left in place boththe statute and the federal common law D'Oenchdoctrine to fill in the inevitable gaps left by the statutorylanguage. See Inn at Saratoga Assocs. v. FD-IC, 60 F.3d 78, 82 (2d Cir.1995) (adhering to thecommon law D'Oench doctrine to fill in a gap leftby the statute because failing to do so “would undercutan important purpose of [the D'Oench ] doctrine-allowingthe FDIC to rely on a bank's recordswhen insuring the bank”); NBW Commercial Paper,826 F.Supp. at 1460-61 (“While both D'Oench andthe statutory provisions protect similar interests ofthe government, each is capable of a somewhat independentinterpretation, ... so that they do notcompletely overlap. It is this added protection givenby D'Oench, which Congress has neither codifiednor demonstrated any intent to repudiate, that remainsviable in the interstices of FIRREA....D'Oench can best be described as a safety netwhich Congress has left to insure that the specificwording of the statute does not prevent the true applicationof Congress' policies.”). The common lawdoctrine has served the important function of fillingthe inevitable gaps left by the statutory language.We conclude that it is even clearer in this case thanin Texas that Congress did not intend to preemptthe prior federal common law D'Oench doctrine.Texas held that the statute did not “speak directly”to the issue, notwithstanding the fact that the statuteaddressed the area of the government's debt collectionand addressed prejudgment interest in particular,and notwithstanding the fact that Congress expresslyexcluded states from the operation of thestatute. In the instant case, no language in the statuterefers directly to the common law D'Oench doctrine.The only language in the statute even relevantto the issue presented by Motorcity-the range of oralagreements with respect to which the FDIC willbe protected-is found in § 1823(e)(1), and its languagewas merely carried over intact from priorlaw.As in Texas, our conclusion is supported by theevident purpose of FIRREA-to enhance the FDIC'sability to address the problems created by the in-© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 22creasing number of financial institutions in default.As in Texas, Motorcity's construction would havethe “anomalous effect” of undermining the purposesof FIRREA. Specifically, Motorcity's interpretationseeks to take advantage of oral agreements,evading the statute and D'Oench merely becauseMotorcity has paid off its loan. Such an interpretationwould undermine the core purpose of boththe D'Oench doctrine and its statutory cousins, i.e.,allowing the FDIC to make its necessary decisionsand evaluations, which sometimes *1334 must bemade with lightning speed, by relying on the writtenbank records.For the foregoing reasons, we therefore hold thatneither FIRREA, nor the Federal Deposit InsuranceAct of 1950, preempted the federal common lawD'Oench doctrine.B. Can Motorcity Avoid the D'Oench Doctrine if itRepaid its Loans to Southeast Prior to Bringing thisLawsuit?Our conclusion that the D'Oench doctrine has notbeen preempted by statute is reinforced by an examinationof Motorcity's argument that §§1821(d)(9)(A) and 1823(e)(1) are inapplicable becauseMotorcity repaid its loan to Southeast beforethe FDIC was appointed receiver. Pointing to §1823(e)(1)'s reference to an “agreement whichtends to diminish or defeat the [FDIC's] interest ...in any asset acquired by it,” Motorcity contendsthat § 1823(e)(1) does not bar any claims againstthe FDIC that do not affect the value of a specificasset of the bank, such as a note, acquired by theFDIC. Because it repaid its note, Motorcity arguesthat there is no longer any specific asset to whichthe alleged oral agreements relate. See Murphy v.FDIC, 61 F.3d 34, 37 (D.C.Cir.1995) (holding that§ 1823(e) applies only when the FDIC's interest ina specific asset would be impaired by the allegedsecret agreement); Inn at Saratoga Assocs. v. FD-IC, 60 F.3d 78 (2d Cir.1995) (holding that a promiseto make a loan is not covered by § 1823(e) becausea promise is not an “asset”); John v. RTC, 39F.3d 773, 776-77 (7th Cir.1994) (“Section 1823(e)requires an identifiable ‘asset’ which is acquired bythe bank and then transferred to the regulatoryagency, and to which the unenforceable agreementsmust relate.”); Murphy v. FDIC, 38 F.3d 1490,1500 (9th Cir.1994) (en banc) (holding that §1823(e) does not apply to a claim relating to a letterof credit; a letter of credit is a liability, not an asset);Thigpen v. Sparks, 983 F.2d 644, 648-49 (5thCir.1993) (analyzing both §§ 1821(d)(9)(A) and1823(e) and concluding that these statutes are limitedby a “specific asset” requirement); FDIC v.Bracero & Rivera, Inc., 895 F.2d 824, 830 (1stCir.1990) (where a note was discharged by the paymentand cancellation of the underlying debt beforethe FDIC ever obtained it, the note was not an“asset” protected by § 1823(e)) (dicta); CommerceFederal Sav. Bank v. FDIC, 872 F.2d 1240, 1246(6th Cir.1989) (where the indebtedness secured bya deed of trust is extinguished by operation of lawbefore the FDIC acquires the failed bank, the FDIChas acquired no asset and therefore may not invoke§ 1823(e)).[20] In light of our holding that the federal commonlaw D'Oench doctrine has not been preempted, weneed not decide whether §§ 1821(d)(9)(A) or1823(e)(1) are limited to claims that impair the FD-IC's interest in a specific asset. See Brookside Assocs.v. Rifkin, 49 F.3d 490, 495 (9th Cir.1995)(declining to address the extent to which § 1823(e)is limited by a specific asset requirement becausethe common law D'Oench doctrine is not so limited).Instead, we reaffirm the principle that thecommon law D'Oench doctrine is not limited toclaims relating to a specific asset of the bank thathas been acquired by the FDIC. RTC v. DunmarCorp., 43 F.3d 587, 594-95, 597 (11th Cir.) (enbanc) (holding that, regardless of whether a specificasset is involved, D'Oench applies to claims or defensesthat relate to ordinary banking transactions),cert. denied sub nom. Jones v. RTC, 516 U.S. 817,116 S.Ct. 74, 133 L.Ed.2d 33 (1995); OPS ShoppingCtr., Inc. v. FDIC, 992 F.2d 306, 309 (11thCir.1993) (rejecting the argument that the common© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 23law D'Oench doctrine is limited by a specific assetrequirement). Other circuits are in agreement onthis issue. See, e.g., Inn at Saratoga Assocs. v. FD-IC, 60 F.3d 78, 82 (2d Cir.1995) (rejecting the argumentthat the D'Oench doctrine is limited by an“asset” requirement, because such a requirement“would undercut an important purpose of that doctrine-allowingthe FDIC to rely on a bank's recordswhen insuring the bank”); Brookside Assocs. v. Rifkin,49 F.3d 490, 496 (9th Cir.1995) (“[W]e holdthat the common-law [D'Oench ] doctrine applies tobar suit even when the RTC does not acquire a specificasset whose value is affected by the allegedsecret agreement.”); Jackson v. FDIC, 981 F.2d730, 734-35 (5th Cir.1992) (holding that claims thatdo not diminish or defeat the FDIC's interest in anyspecific *1335 asset are nevertheless D'Oenchbarred, in light of the “established purpose of the [D'Oench ] doctrine” to protect the FDIC's relianceon the bank's records); Timberland Design, Inc. v.First Serv. Bank for Sav., 932 F.2d 46, 49-50 (1stCir.1991) (per curiam) (“D'Oench protects the FD-IC from Timberland's affirmative claims which arebased upon an alleged oral agreement to lendmoney in the future.”); Hall v. FDIC, 920 F.2d 334,339 (6th Cir.1990) (“ D'Oench is important for allowingbanking authorities to determine exactlywhat a bank's assets and liabilities are ... [and] maytherefore be invoked even where FDIC does nothave ‘an interest in an asset.’ ”), cert. denied, 501U.S. 1231, 111 S.Ct. 2852, 115 L.Ed.2d 1020(1991).Motorcity's argument, that repaying a loan beforefiling tort claims precludes the FDIC from invokingthe D'Oench doctrine, would result in absurdity.For example, suppose that a plaintiff wished tobring tort claims against the FDIC on the basis ofalleged oral representations made by the failed bankin connection with the negotiation of the plaintiff'sloan, and suppose that the alleged oral representationscontradict the written loan terms. This hypotheticalplaintiff's claims would fall within the coreof the D'Oench doctrine and would be barred. SeeIn re Geri Zahn, Inc., 25 F.3d 1539, 1544 (11thCir.1994). Under Motorcity's argument, however,the plaintiff could circumvent the D'Oench barsimply by paying off the balance of his or her loanbefore filing suit, leaving the FDIC without an interestin a specific asset. Such a result would seriouslyundermine the policies of the D'Oench doctrine:to protect the bank examiners who rely on thebank's records in assessing the bank's condition, toprotect the FDIC's ability to insure deposits, and toplace the burden on borrowers to make sure that allof the terms of their loan agreements are in writing.The Ninth and Sixth Circuits have held that theD'Oench doctrine cannot be avoided by repaying aloan before filing suit. In Brookside, the plaintiffbrought fraud claims against the RTC, as receiverfor a failed bank, alleging that the bank's officialsmisrepresented the appraised value of some condominiums.49 F.3d at 490. In reliance on the allegedmisrepresentations, the plaintiff purchasedthe condominiums, executing a nonrecourse noteand first deed of trust in favor of the bank. Theplaintiff defaulted on its loan, and the bank foreclosedon the condominiums. Six months later, theRTC took over the failed bank. At that time, theplaintiff's note and deed of trust were no longer onthe bank's books because they had been extinguishedby the foreclosure sale. The plaintiff arguedthat the D'Oench doctrine did not apply, becausethe fraud claims did not diminish the RTC'sinterest in a specific asset it had acquired from thebank. The Ninth Circuit squarely rejected theplaintiff's argument:[T]o strip the banking authority of D'Oench, Duhmeprotection [in this situation] would give debtors amessage: If you relied on unrecorded representationswhen you borrowed from the bank, wait untilyour note is extinguished-or extinguish ityourself by paying it off-before you file suit. Itdoes not make sense, in light of D'Oench, Duhmepolicy, to allow the doctrine's applicability tohinge on a procedural technicality easily manipulableby debtors.Id. at 496.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 24Similarly, in Hall, the plaintiffs sued the FSLIC asreceiver of a failed bank (“Commerce”), seekingdamages arising out of Commerce's breach of anunwritten agreement to advance additional funds onthe plaintiffs' loan. 920 F.2d at 334. Approximatelythree years before Commerce fell into receivership,the plaintiffs secured a loan from another bank andrepaid the Commerce loan. The plaintiffs arguedthat, because they owed Commerce nothing whenthe FSLIC took it over, the FSLIC had no interestin any specific Commerce asset and thus theD'Oench doctrine did not apply. The Sixth Circuitrejected the plaintiffs' argument:There are ... instances where FDIC no longer has aninterest in an asset, but where the logic ofD'Oench should still apply to protect FDIC. Forexample, an obligor and a bank in receivershipmight have mutual breach of contract claims*1336 growing out of loan documents in thebank's records. The obligor, anticipating a suit byFDIC, might quickly pay off the note in an attemptto block FDIC's resort to the D'Oench doctrine.Under these circumstances, the fact that theobligor paid off the debt so as that FDIC did nothave “an interest in an asset” should not prohibitFDIC from invoking D'Oench.Id. at 339.[21] Because the common law D'Oench doctrinehas not been preempted, and because the commonlaw D'Oench doctrine is not limited by a specificasset requirement, Motorcity's repayment of its loandoes not preclude the application of the D'Oenchbar. We now turn to the application of the D'Oenchdoctrine to Motorcity's proposed tort claims.C. Application of D'Oench; Are Motorcity's Claims“Free Standing” Torts?The gravamen of Motorcity's complaint is thatSoutheast should have notified Motorcity's absenteeowners that out-of-trust sales were occurring at theautomobile dealership. Motorcity does not arguethat Southeast breached the written floor plan financingagreement. As the district court found, thewritten agreement imposes no duty on Southeast tomonitor the dealership for the benefit of Motorcityand no duty to inform Motorcity of any out-of-trustsales.[22] Motorcity does not challenge the districtcourt's reading of the written contract; rather, Motorcityrelies primarily on alleged oral agreementsand representations that Southeast would monitorthe business not only for its own benefit but also forthe benefit of Motorcity's absentee owners.However, because the FDIC was entitled to rely onthe bank's records to ascertain the extent of thebank's contractual obligations pursuant to the floorplan financing arrangement, D'Oench prevents Motorcityfrom offering extrinsic evidence to alter orto explain the written loan terms. FSLIC v. TwoRivers Assocs., Inc., 880 F.2d 1267, 1276 (11thCir.1989) (refusing to consider extrinsic evidenceto interpret loan terms, because such evidence wasnot reflected in the bank's records); FDIC v. MerchantsNat'l Bank of Mobile, 725 F.2d 634, 639(11th Cir.) (rejecting the use of extrinsic evidencenot meeting the requirements of § 1823(e), including“intent of the parties” and the “surrounding circumstances,”to determine whether the bank's participationin a loan was guaranteed by the FarmersHome Administration), cert. denied, 469 U.S. 829,105 S.Ct. 114, 83 L.Ed.2d 57 (1984); FDIC v. BayStreet Dev. Corp., 32 F.3d 636, 639-40 (1stCir.1994) (“[O]f course, extrinsic evidence of additional[loan] terms is inadmissible against FDIC.”);RTC v. Daddona, 9 F.3d 312, 319 (3rd Cir.1993)(“[N]ot only does the existence of the agreementhave to appear plainly on the face of an obligation,but the basic structure of that agreement-its essentialterms-must also appear plainly on the face ofthat obligation.”); Community Bank of the Ozarks v.FDIC, 984 F.2d 254, 257 (8th Cir.1993) (“Neithersection 1823(e) nor D'Oench is satisfied by inferencesdrawn from a bank's records.”).Thus barred from any contract claim based on© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 25either written or oral agreements, Motorcity arguesthat its proposed claims against the FDIC are tortclaims that are not related to the floor plan financingagreement. Specifically, Motorcity contendsthat Southeast breached an alleged fiduciary duty tonotify Motorcity of the out-of-trust sales discoveredin the course of Southeast's audits, and that Southeastacted negligently by conducting its audits in anunreasonable and incompetent fashion. Motorcityargues that these two claims fall within the “narrowexception” to the D'Oench doctrine for “free standingtort claims.” In re Geri Zahn, 25 F.3d 1539,1543 (11th Cir.1994).[23][24] The D'Oench doctrine bars all claims-eventhose sounding in tort-that are “sufficiently intertwinedwith regular banking transactions, such thatexclusion of the alleged ‘secret agreement’ accordswith the underlying policies of D'Oench. ” Id. at1543; OPS Shopping Ctr. v. FDIC, 992 F.2d 306,310 (11th Cir.1993). FN18 In other words, a *1337tort claim involving any “scheme or arrangementwhereby the banking authority is likely to bemisled” cannot be asserted against the banking authority.RTC v. Dunmar Corp., 43 F.3d 587, 593(11th Cir.) (en banc), cert. denied sub nom. Jones v.RTC, 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33(1995); see also Langley v. FDIC, 484 U.S. 86,92-93, 108 S.Ct. 396, 402, 98 L.Ed.2d 340 (1987)(explaining that the term “agreement” in § 1823(e)should be interpreted broadly to comport with thepolicies underlying the common law D'Oench doctrine).In Langley, for example, the borrower attemptedto defend against a note that had been acquiredby the FDIC by arguing that the note hadbeen procured by the bank's oral misrepresentationsabout the acreage of the mortgaged property, theextent of the mineral deposits, and the presence ofpreexisting mineral rights leases. Id. at 89, 108S.Ct. at 400. Because these alleged fraudulent misrepresentationsof fact occurred during discussionssurrounding an ordinary banking transaction and involvedmatters that should have been included inthe documents contained in the bank's records, theSupreme Court held that the misrepresentationsconstituted “agreements” under § 1823(e)(1). Thus,the Langleys' fraud defense was barred, notwithstandingthe fact that it sounded in tort. Id. at 96,108 S.Ct. at 403.FN18. The principal policies underlyingthe D'Oench doctrine are (1) to permit federaland state bank examiners to rely uponthe bank's records of regular banking transactionsin evaluating the institution's fiscalsoundness; (2) to “ensure mature considerationof unusual loan transactions by seniorbank officials,” and (3) to “preventfraudulent insertion of new terms, with thecollusion of bank employees, when a bankappears headed for failure.” Langley v.FDIC, 484 U.S. 86, 91, 108 S.Ct. 396, 401,98 L.Ed.2d 340 (1987).Dunmar involved a borrower's tort claims arisingfrom a failed S & L's oral representations that itwould lend additional monies to the borrower, extendthe time for payment of a loan, and permit aqualified buyer to assume the borrower's mortgage.43 F.3d at 587. Because “the nature of each allegedoral agreement or representation relates to regularbanking transactions and should have been documentedin the bank records,” we held that theD'Oench doctrine barred the borrower's tort claims.Id. at 595. Similarly, In re Geri Zahn involvedclaims of fraud, wrongful dishonor, and intentionalinterference with a business relationship. 25 F.3d at1539. These claims arose out of agreements andmisrepresentations alleged to have occurred duringloan negotiations, and they contradicted the expressterms of the loan documentation. We held that theclaims fell “well within the core of the D'Oenchbar,” because “[t]he alleged oral agreements wereobviously part and parcel of the loan negotiations”and involved “matters which would normally be reflectedin the records of regular banking transactions.”Id. at 1544.This circuit's decision in OPS is also relevant. 992F.2d at 306. In that case, the plaintiff sued the bankfor its refusal to pay on a letter of credit that was© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 26not reflected in any of the bank's records. The courtheld that the D'Oench doctrine barred the plaintiff'sclaims against the FDIC, citing the principle that “‘a private party may not enforce against a federaldeposit insurer any obligation not specifically memorializedin a written document such that theagency would be aware of the obligation when conductingan examination of the institution's records.’” Id. at 308 (quoting Baumann v. Savers Fed. Sav.& Loan Ass'n, 934 F.2d 1506, 1515 (11th Cir.1991), cert. denied, 504 U.S. 908, 112 S.Ct. 1936, 118L.Ed.2d 543 (1992)). Because the claims in OPS relateddirectly to ordinary banking transactions (i.e.,the rights and obligations relating to the issuance ofa letter of credit by the bank), banking examinersreasonably would expect the records of regularbanking transactions to reflect the plaintiff's letterof credit, and thus the D'Oench bar applied. Id. at310.[25][26] In deciding that the D'Oench doctrinebarred the plaintiff's claims against the FDIC, theOPS court extensively discussed the scope of thefree standing tort exception articulated in Vernon v.FDIC, 981 F.2d 1230 (11th Cir.1993) (Vernon II ).The tort claims in Vernon II involved alleged violationsof securities laws and related claims arisingfrom the claimants' purchase of preferred stock andwarrants to purchase common stock in the failed institutionitself. Because “the relevant records wouldreside in the department of the bank which handledthe sale or transfer of the bank's own stock,” *1338and would not appear among the records of “regularbanking transactions,” the claims in Vernon II constitutedfree standing torts, not barred by theD'Oench doctrine. OPS, 992 F.2d at 310-11. Thus,the court drew a distinction: on the one hand, typicalclaims like employment discrimination and automobileaccidents would be free standing torts notbarred by D'Oench; on the other hand, those claimsrelating to “ordinary banking transactions” and imposingobligations on the bank with respect theretoobligationsthat would ordinarily be reflected in therecords of banking transactions-would be D'Oenchbarredunless thus recorded. In deciding whetherthe free standing tort exception applies, therefore,“the key inquiry is one of relatedness” to ordinarybanking transactions, and “the relatedness requirementrests upon the recognition that the D'Oenchdoctrine does not encompass those free standingtorts which do not implicate the records of regularbanking transactions.” In re Geri Zahn, 25 F.3d at1543-44. The D'Oench doctrine bars reliance on oralagreements to support tort claims that relate directlyto ordinary banking transactions and involveobligations of the lender that should be reflected inthe records of regular banking transactions. Id. at1544.[27] Motorcity's claim is based primarily upon allegedoral agreements and representations thatSoutheast would monitor the business for Motorcity'sbenefit, would conduct regular audits, andwould advise Motorcity of any irregularities, especiallyout-of-trust sales. FN19 Motorcity claims thatsuch representations were made during the negotiationspreceding the signing of the floor plan financingagreement and during the implementationthereof. It is clear that any such negotiations andrepresentations are intimately related to the floorplan financing agreement and should have been reflectedin the written agreement. Southeast's allegedpromises and representations were “part and parcel”of the loan negotiations, and as such relate directlyto the financing agreement, a regular bankingtransaction. In re Geri Zahn, 25 F.3d at 1544. Because“[b]anking examiners who inspect and evaluatethe bank records reasonably expect the recordsof regular banking transactions to reflect all of therights and liabilities of the bank regarding such regularbanking transactions,” OPS, 992 F.2d at 310, itfollows that banking examiners would reasonablyexpect Southeast's undertaking of unusual duties toMotorcity to be reflected in such records.Moreover, it accords with the policies underlying §1823(e)(1) and D'Oench to require such unusualundertakings by a lender to appear among thebank's records. Langley, 484 U.S. at 92, 108 S.Ct.at 401 (stating that one purpose fulfilled by §1823(e)'s writing requirements is to “ensure mature© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 27consideration of unusual loan transactions by seniorbank officials”).FN19. Specifically, Motorcity alleges thatSoutheast acknowledged the concerns ofMotorcity's absentee owners, and representedto Motorcity:(1) that Southeast was experienced inhandling floor plan financing, that it“knew what it was doing,” and that ithad handled floor plan financing for thelargest car dealership in the country;(2) that a senior executive at Southeastpersonally would manage the Motorcityaccount;(3) that Southeast would audit the floorplan monthly and inform Motorcity's investorsimmediately upon discoveringany irregularities, particularly with respectto out-of-trust sales; and(4) that Southeast's duty to conductaudits and to inform Motorcity of theresults would be set forth in the writtenagreement.Motorcity seeks to impose additional obligations onSoutheast directly related to the financing agreement,obligations which one would expect to be reflectedin the bank's records. However, the writtendocuments did not reflect such additional obligations,nor did they otherwise appear in the bank'srecords. We readily conclude that the very core ofthe D'Oench doctrine bars any reliance by Motorcityon such oral agreements and representations.The free standing tort exception does not apply.D. Dissecting Motorcity's Claims; AssessingWhether a Viable Claim Remains After StrippingAway Reliance on Oral AgreementsIn order to evaluate Motorcity's state law tortclaims, we must focus precisely on the *1339nature and contours of each. As noted above, thecore of the D'Oench bar prevents any reliance byMotorcity on oral agreements. We must carefullyexamine the elements of each state law claim andthe source of the obligations Motorcity seeks to imposeon Southeast; only then can we assess whetherthere is any viable state law claim after strippingaway all reliance upon oral agreements or representations.Motorcity asserts two state law claims, one basedon fiduciary duty and one on negligence. We firstaddress the fiduciary duty claim.1. Fiduciary Duty Claim[28][29] Motorcity's proposed fiduciary duty claimrequires it to establish that Southeast voluntarily assumedan obligation to act for Motorcity's benefit.The claim that Southeast breached a fiduciary dutyto notify Motorcity about the out-of-trust sales necessarilydepends upon the existence of a fiduciaryrelationship. See Barnett Bank of West Florida v.Hooper, 498 So.2d 923, 925 (Fla.1986) (“The usualrelationship between a bank and its depositor is oneof debtor to creditor ... not ordinarily imposing aduty of disclosure ... [but where the bank] has establisheda relationship of trust and confidence ...the bank may be found to have assumed a duty todisclose facts.”). FN20 Under Florida law, it is clearthat a lender does not ordinarily owe fiduciary dutiesto its borrower. See, e.g., Keyes Jeep Eagle,Inc. v. Chrysler Corp., 897 F.Supp. 1437, 1443(S.D.Fla.1995) (holding that, under Florida law, afloor plan financing agreement does not create fiduciaryduties); Metcalf v. Leedy, Wheeler & Co., 140Fla. 149, 191 So. 690 (1939) (holding that, in anarms-length transaction, there is no duty on eitherparty to act for the benefit or protection of the otherparty); Vassar v. Smith, 134 Fla. 346, 183 So. 705(1938) (same); Edwards v. Lewis, 98 Fla. 956, 124So. 746 (1929) (same); Capital Bank v. MVB, Inc.,644 So.2d 515, 518 (Fla.App. 3 Dist.1994)(“Generally, the relationship between a bank and itsborrower is that of creditor to debtor, in which the© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 28parties engage in arms-length transactions, and thebank owes no fiduciary responsibilities.”), reviewdenied, 659 So.2d 1086 (Fla.1995); Watkins v.NCNB Nat'l Bank, 622 So.2d 1063, 1065 (Fla.App.3 Dist.1993) (same), review denied, 634 So.2d 629(Fla.1994). In order to establish a fiduciary relationship,there must be an allegation of dependencyby one party and a voluntary assumption of a dutyby the other party to advise, counsel, and protectthe weaker party. Cripe v. Atlantic First Nat'l Bank,422 So.2d 820 (Fla.1982); Willis v. Fowler, 102Fla. 35, 136 So. 358 (1931); Quinn v. Phipps, 93Fla. 805, 113 So. 419 (1927); Watkins, 622 So.2d at1065. Stated differently, “the fact that one partyplaces its trust in the other does not create a confidentialrelationship in the absence of some recognition,acceptance, or undertaking of the duties of afiduciary on the part of the other party.” BankestImports, Inc. v. ISCA Corp., 717 F.Supp. 1537,1541 (S.D.Fla.1989) (citing Harris v. Zeuch, 103Fla. 183, 137 So. 135 (1931)). See also DenisonState Bank v. Madeira, 230 Kan. 684, 640 P.2d1235, 1244 (1982) (“[O]ne may not ... unilaterallyimpose a fiduciary relationship on another withouta conscious assumption of such duties by the onesought to be held liable as a fiduciary.”).FN20. Hooper also suggested that a bank'sduty to disclose material facts to its customermight arise “where a bank, havingactual knowledge of fraud being perpetratedupon a customer, enters into a transactionwith that customer in furtherance ofthe fraud.” Id. at 925. See also BurgerKing Corp. v. Holder, 844 F.Supp. 1528,1532 (S.D.Fla.1993) (even without a fiduciaryrelationship, a duty to disclose materialinformation might arise when a bank,under circumstances rising to the level offraud, discloses certain information that ismisleading because it is incomplete). Motorcitydoes not argue that Southeast's failureto disclose the out-of-trust sales constitutedactionable fraud.[30][31] As noted above, the primary basis for Motorcity'sallegation of a fiduciary relationship wasthe alleged oral agreements and representations bySoutheast. Having determined that Motorcity cannotrely upon such oral representations to prove itsallegations that Southeast voluntarily assumed a fiduciaryduty, we now assess whether Motorcity hasalleged any other source of a fiduciary duty. Motorcitysuggests the following*1340 argument in itsbriefs. Motorcity argues that the act of auditing thedealership and sending the summary audit reportssufficiently alleges, as a matter of Florida law, thatSoutheast voluntarily assumed a fiduciary duty toperform the audits for Motorcity's benefit. FN21 Weconclude that the mere act of auditing the dealershipand sending the summary audit reports doesnot constitute “circumstances exceeding an ordinarycommercial transaction,” Capital Bank, 644So.2d at 521, and does not give rise to a fiduciaryduty under Florida law.FN21. Motorcity also mentions that itsprincipal, David Hess, was a long standingcustomer of Southeast's through his medicalpractice. However, it is clear that Southeast'slong standing business relationshipwith Hess, without more, cannot transformthe lender-borrower relationship into a fiduciaryone. See e.g., Barnett Bank of WestFlorida v. Hooper, 498 So.2d 923, 925(Fla.1986); Klein v. First Edina Nat'lBank, 293 Minn. 418, 196 N.W.2d 619,624 (1972) (“The fact that plaintiff haddone business with [the bank] for nearlytwenty years could not by itself place [thebank] in a confidential relation toplaintiff.”).[32] A bank that audits its borrower's inventory andsends the borrower a courtesy copy or a “summaryaudit report” has not acted inconsistently with itsrole as a lender, and therefore Florida courts wouldnot infer a fiduciary duty under these circumstances.See Pinnacle Port Community Ass'n v.Orenstein, 872 F.2d 1536, 1540 (11th Cir.1989)© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 29(bank that became heavily involved in monitoringits borrower's business did not become a joint venturerbecause the bank's “actions are consistent withthe role of a lender that became increasingly involvedwith the project to protect its collateral”);Saglio v. Chrysler First Commercial Corp., 839F.Supp. 830, 833 (M.D.Fla.1993) (rejecting the existenceof a fiduciary relationship between floorplan financing lender and guarantor where lendermonitored borrower's inventory and provided periodicreports to guarantor); Armetta v. ClevetrustRealty Investors, 359 So.2d 540, 543 (Fla.App. 4Dist.) (lender, who inspects construction projectpursuant to right of inspection reserved in the loanagreement, is deemed to do so to protect its own interestin the loan; it has not acted beyond the role ofa lender and thus owes no fiduciary duties), cert.denied, 366 So.2d 879 (Fla.1978); Greiner v. Gen.Elec. Credit Corp., 215 So.2d 61, 63 (Fla.App. 4Dist.1968) (declining to find joint venture elementwhere arrangement arguably indicative of the elementis a well accepted business method not restrictedto joint ventures). We therefore hold that thedistrict court did not commit error in dismissingMotorcity's breach of fiduciary duty claim. FN22FN22. Indeed, it is not surprising that Motorcityis unable to locate a single Floridacase that imposes fiduciary-type duties ona bank without relying on oral representations.See Burger King Corp. v. Holder,844 F.Supp. 1528, 1532 (S.D.Fla.1993)(borrower's allegations in support of abank's fiduciary duty to disclose materialinformation to borrower included“affirmative representations” that the bank“would assume certain responsibilities andduties” on borrower's behalf); BarnettBank, 498 So.2d at 924 (bank officer orallytold loan customer “that he was familiarwith Hosner Investments and that theywere sound and had passed Internal Revenuescrutiny”); Capital Bank v. MVB, Inc.,644 So.2d 515 (Fla.App. 3 Dist.1994)(bank officer “expressly invited[customer's] reliance by urging [customer]to trust him and by reassuring [customer]that he was part of the Capital Bank family”;bank's “role exceeded that of a lenderin a traditional lender/borrower relationship”),review denied, 659 So.2d 1086(Fla.1995); Chotka v. Fidelco Growth Investors,383 So.2d 1169, 1170 (Fla.App. 2Dist.1980) (bank “became more than just alender when [it] took title to the condominiumproject, completed construction, and,holding [itself] out to be the developer andowner of the project, advertised and soldunits to purchasers.”).In this case, the written financing agreement gaveSoutheast the right to audit. The mere conduct ofthat audit and sending a summary report thereof toMotorcity were entirely consistent with its role aslender. We readily conclude that no fiduciary dutywas created under Florida law. FN23FN23. Because Motorcity's fiduciary dutyclaim fails as a matter of Florida law, andbecause its negligence claim also fails underFlorida law, see infra, we need not addressthe argument that nonverbal courseof conduct evidence (such as the audithere) is D'Oench-barred, just like oralevidence, because it does not appear in thebank's records. See Hall v. FDIC, 920 F.2d334, 340 (6th Cir.1990) (holding thatD'Oench prevents borrowers from arguingthat a condition in a loan agreement hasbeen waived by the bank's nonverbal conductat the loan closing), cert. denied, 501U.S. 1231, 111 S.Ct. 2852, 115 L.Ed.2d1020 (1991); Beighley v. FDIC, 868 F.2d776, 783 (5th Cir.1989) (explaining thatany inference derived from a bank's effortto help the borrower sell collateral wouldnot appear in the bank's records and thuswould be barred by § 1823(e)); FDIC v.Hamilton, 939 F.2d 1225, 1229 (5thCir.1991) ( “The rationale which bars© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 30claims based on oral agreements and collateralwritings is equally applicable toclaims based on unwritten, albeit widespreadand prevailing, banking customs.”).*1341 2. Negligence ClaimMotorcity's other state law claim is based upon negligence.Having stripped away any proper relianceby Motorcity upon oral agreements or representations,we must determine whether Motorcity canstate a viable negligence claim based merely uponthe fact that Southeast conducted the audit and sentsummary reports thereof.[33][34] The voluntary assumption of a duty to protectMotorcity is also a necessary element of Motorcity'sclaim that the negligent performance of thefloor plan audits caused its financial losses. UnderFlorida law, no defendant may be held liable fornegligence unless he or she owes a legal duty toprotect the plaintiff from harm. Cooper HotelServs., Inc. v. MacFarland, 662 So.2d 710, 712(Fla.App. 2 Dist.1995), review denied, 670 So.2d939 (Fla.1996); Paterson v. Deeb, 472 So.2d 1210,1214 (Fla.App. 1 Dist.1985), review denied subnom., Langston v. Paterson, 484 So.2d 9 (Fla.1986). With respect to loan transactions, Florida law doesnot impose any duty on the lender to monitor theprojects it finances for the protection of the borrower.See Chotka v. Fidelco Growth Investors, 383So.2d 1169, 1170 (Fla.App. 2 Dist.1980) (“[A]lender is not under any duty to inspect the progressof construction for the benefit of anyone other thanitself ...” even if the loan provisions allow thelender to inspect the construction.). To be held liablefor negligence, then, the bank must somehowvoluntarily assume a duty to protect the borrowerthrough the performance of the audits. Saglio v.Chrysler First Commercial Corp., 839 F.Supp. 830,834 (M.D.Fla.1993) (“[T]he law does not impose aduty upon [the lender] to reasonably perform inventorychecks for [the guarantor's] benefit, [but]liability for misfeasance can lie where a party voluntarilyassumes a duty.” (emphasis added)); CapitalBank v. MVB, Inc., 644 So.2d 515, 521 (Fla.App.3 Dist.1994) (“Where the lender has voluntarily assumedadditional roles, accompanying responsibilitiesproperly follow.” (emphasis added)), reviewdenied, 659 So.2d 1086 (Fla.1995). In this sense,Motorcity's negligence claim is similar to its breachof fiduciary duty claim, in that both tort claims requireSoutheast to have voluntarily assumed somekind of duty to act for Motorcity's benefit and protection.Motorcity suggests that Saglio, supra, supports itscontention that Southeast voluntarily assumed a tortduty to Motorcity. In Saglio, a guarantor of a loanalleged that a floor plan financing lender had voluntarilyassumed a duty to audit the borrower's inventoryfor the guarantor's benefit, even though thewritten contract between the lender and the guarantordid not require the lender to do so. Id. at 833-34.During the course of the loan, the lender routinelyconducted audits and submitted reports of its inventorychecks to the guarantor. According to thecourt, this created a material issue of fact regardingwhether the lender and the guarantor had modifiedtheir written contract through their conduct, and thecourt therefore allowed the guarantor's breach ofcontract claim to survive summary judgment. Id.Thus, although finding no fiduciary duty, the courtfound a contractual duty. Relying on dicta in Banfieldv. Addington, 104 Fla. 661, 140 So. 893(1932), the court also held that the lender could beheld liable for negligence if it had failed to dischargeits contractual duty to conduct audits on behalfof the guarantor with reasonable care.The Saglio court's finding that the lender's auditactivities could constitute the necessary voluntaryassumption of a duty may have been dependentupon its finding of a contractual duty. If so, Sagliois distinguishable, because Motorcity-in its effort toavoid the D'Oench bar-has abandoned any contractclaim. In any event, to the extent that Saglio suggeststhat the mere audit activities of a lender, ashere, can give rise to the voluntary assumption of aduty in negligence, we find it unpersuasive.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 31*1342 We believe such a holding would be inconsistentwith the Florida case law. The Florida courtshave never applied the rationale of the Banfielddicta FN24 to infer a tort duty when the actionstaken are taken for the actor's own benefit. Indeed,the very statement of the rule of the Banfield dictain the cases cited by the district court in Sagliohighlights the fact that the rule applies only whereactions are undertaken for the benefit of another.See Barfield v. Langley, 432 So.2d 748, 749(Fla.App. 2 Dist.1983) (explaining that “action undertakenfor the benefit of another ... must be performedin accordance with an obligation to exercisereasonable care”); Kaufman v. A-1 Bus Lines, Inc.,416 So.2d 863 (Fla.App. 3 Dist.1982) (same); Padgettv. Sch. Bd. of Escambia County, 395 So.2d 584(Fla.App. 1 Dist.1981) (same).FN24. The Banfield dicta was to the effectthat a duty in negligence arises where aperson undertakes a course of action.However, Banfield was an ordinary tortcase imposing a duty on the owner of abeauty parlor to exercise ordinary care inthe administration of a permanent wave ona customer's hair. 140 So. at 893.The only Florida cases which have squarely addressedthe question of whether a duty is to be inferredfrom actions taken by a party for its own benefithave squarely rejected the inference of a duty.In Rice v. First Fed. Sav. & Loan Ass'n, 207 So.2d22, 23 (Fla.App. 2 Dist.) (per curiam), cert. denied,212 So.2d 879 (Fla.1968), for example, a mortgagelender conducted frequent inspections of the borrower'sconstruction site and charged the borroweran “inspection and supervision” fee. The lender'sinspections failed to reveal certain construction defects,which caused considerable damage to theborrower. The borrower sued the lender for negligentinspection, thus breaching an implied contractualobligation. The borrower claimed that by undertakingto inspect the construction site and chargingthe borrower a fee therefor, the lender voluntarilyassumed a duty to inspect the constructionsite with reasonable care for the borrower's benefit.The court flatly rejected the borrower's argument.Because a reasonable lender would be expected toinspect the construction site to protect its own interestin the mortgage, the court concluded that itwould be “unreasonable” to infer from the bank'sconduct that the bank had assumed a duty to performthe inspections on the borrower's behalf. Id.Similarly, in Armetta v. Clevetrust Realty Investors,359 So.2d 540 (Fla.App. 4 Dist.1978), the Floridacourt rejected a claim very similar to Motorcity'sclaim. There, the lender made a loan to a developerof a condominium construction project. Severalcondominium purchasers sought to impose liabilityon the lender “for a variety of alleged negligent actsin supervising the developer's actions.” Id. at 542.Rejecting the debtor's negligence claim, as well asother claims, the court held: “A lender owes noduty to others to supervise the construction and developmentof projects which it has financed.” Id. at543.Motorcity suggests that its complaint goes beyondRice and Armetta because it alleges that Southeastperiodically sent Motorcity summary reports of theaudits. We do not believe that this allegationchanges the result in this case. As a matter of commonexperience, it does not seem unusual for thelender to audit its borrower's business and, as acourtesy, to provide the borrower with a summaryof the audit reports. Rather, such action is entirelyconsistent with the usual role of a lender. It wouldbe unreasonable to infer from this everyday occurrencethat Southeast voluntarily assumed a duty toaudit the dealership for Motorcity's benefit and protection.In any event, it is implicit in both Rice andArmetta that the plaintiff was aware of the resultsof the lender's inspections; the claim was not thatthe lender failed to inform the plaintiff of defectsrevealed by the inspections, but rather the claimwas that the inspections negligently failed to uncoverthe defects. We believe Rice and Armettacontrol the outcome of this case.[35][36] We conclude that the Florida case law© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 32would imply a tort duty only when actions are undertakenfor the benefit of another. It would be inconsistentwith well-established Florida law to infera tort duty *1343 merely on account of actions undertakenpursuant to the protection of one's own interests.FN25FN25. In the similar context of the fiduciaryduty cases discussed above, the Floridalaw is also clear that such actions donot constitute a voluntary assumption of aduty. We believe the fiduciary duty casesalso support our conclusion that no tortduty is assumed.[37][38][39] Motorcity's negligence claim also failsfor another, entirely independent reason; it is barredby Florida's “economic loss” rule. In AFM Corp. v.Southern Bell Telephone & Telegraph Co., 515So.2d 180 (Fla.1987), the Florida Supreme Courtheld that a purchaser of services may not recoverpurely economic losses FN26 in tort unless the otherparty's conduct establishes a “tort‘distinguishable from or independent of [the]breach of contract.’ ” Id. at 181 (citing Lewis v.Guthartz, 428 So.2d 222, 224 (Fla.1982)). See alsoEast River S.S. Corp. v. Transamerica Delaval,Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865(1986). Following the AFM decision, courts haveapplied the economic loss rule to contracts involvingfinancial services, including loans. See,e.g., Interstate Sec. Corp. v. Hayes Corp., 920 F.2d769 (11th Cir.1991) (applying Florida's economicloss rule to a contract for financial services); KeyesJeep Eagle, Inc. v. Chrysler Corp., 897 F.Supp.1437 (S.D.Fla.1995) (applying economic loss ruleto floor plan financing agreement); Strickland-Collins Const. v. Barnett Bank, 545 So.2d 476(Fla.App. 2 Dist.1989) (applying economic lossrule to construction loan agreement). The rationaleunderlying the economic loss rule is that partieswho have allocated risks among themselves by contractshould not be permitted to ignore their bargainafter incurring a loss involving the subject matter ofthe contract. See Airport Rent-A-Car, Inc. v. PrevostCar, Inc., 660 So.2d 628, 630 (Fla.1995)(holding that, in the absence of personal injury ordamage to property outside the scope of the parties'contract, there is “no reason to burden society as awhole with the losses of one who has failed to bargainfor adequate contractual remedies....”); FloridaPower & Light Co. v. Westinghouse Elec.Corp., 510 So.2d 899, 902 (Fla.1987) (finding “noreason to intrude into the parties' allocation of riskby imposing a tort duty and corresponding cost burdenon the public” and holding that “contract principles[are] more appropriate than tort principles forresolving economic loss without an accompanyingphysical injury or property damage”); Strickland-Collins, 545 So.2d at 476 (economic loss rule barssuit by general contractor against developer's lenderfor negligent failure to prevent the developer frommisappropriating the loan proceeds; because generalcontractor participated in the loan negotiationsand signed the loan agreement, the general contractorshould have bargained for the lender's assumptionof a contractual duty to supervise its borrower).FN26. Economic loss includes “ ‘damagesfor inadequate value, costs of repair andreplacement of the defective product, orconsequent loss of profits-without anyclaim of personal injury or damage to otherproperty.’ ” Casa Clara CondominiumAss'n, Inc. v. Charley Toppino & Sons,Inc., 620 So.2d 1244, 1246 (Fla.1993)(quoting Note, Economic Loss in ProductsLiability Jurisprudence, 66 Colum.L.Rev.917, 918 (1966)). Motorcity cannot avoidthe economic loss rule because of thenature of the damages it seeks. Motorcityis clearly seeking to recover for economiclosses.Motorcity asserts that the economic loss rule doesnot apply here because Southeast's tort is“independent” of the contract. Motorcity suggeststhat the tort is independent because the floor planfinancing agreement does not address the risk that© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 33the bank might send Motorcity negligently-preparedaudits.While it is true that the economic loss rule wouldnot bar a tort which was independent of the contract,we readily conclude that Motorcity's claimfalls well within the core of the economic loss rule.The basis of Motorcity's claim is that Southeast voluntarilyassumed a duty to audit for the benefit ofMotorcity. Thus, Motorcity seeks to impose onSoutheast additional duties with respect to the financingarrangement. However, this is the precisesubject about which the parties negotiated and concludeda contract; the contractual understandingsallocated the risks among the parties. The core purposeof the economic loss rule is served by its applicationhere. Accord *1344Strickland-Collins,545 So.2d at 477-78 (finding similar action on thepart of a lender not to be a separate or independenttort).Motorcity also argues that Florida courts would allowrecovery of its economic damages in tort, because“no alternative means of recovery” on thecontract exists. FN27 We conclude that the Floridacourts would apply the economic loss rule in thiscase to bar Motorcity's negligence claim. In AirportRent-A-Car, the Florida Supreme Court recentlyclarified and narrowed any operation of an exceptionfor “no alternative recovery.” 660 So.2d at 628. There, the plaintiff's contract claim, a breach ofwarranty claim, failed for lack of privity. Nevertheless,the court rejected the “no alternative recovery”theory and applied the economic loss rule to bar theplaintiff's negligence claim. The court acknowledgedFN27. Were it not for the D'Oench doctrine,Motorcity might have a viable contractclaim based upon alleged oral agreementsand representations. Because of theD'Oench bar, however, Motorcity mustbase its claim against the FDIC upon thewritten terms of the floor plan financingagreement, or upon Southeast's conduct inauditing the dealership.that the Latite [Latite Roofing Co., Inc. v. Urbanek,528 So.2d 1381 (Fla.App. 4 Dist.1988) ] andMoyer [A.R. Moyer, Inc. v. Graham, 285 So.2d397 (Fla.1973) ] decisions sanctioned the “no alternativetheory of recovery” exception; however,we disagree with ... [plaintiffs'] assertion that itfalls within the exception. As stated above, Casa-Clara [Casa-Clara Condominium Ass'n, Inc. v.Charley Toppino & Sons, Inc., 620 So.2d 1244(Fla.1993) ] specifically disapproved Latite, andlimited Moyer to its facts.Id. at 631. Just as the plaintiffs' contract claim inAirport Rent-A-Car was thwarted by a relevantlegal principle (privity), so too was Motorcity'spotential oral contract claim thwarted by a relevantlegal principle, i.e., the D'Oench doctrine.This case is like many Florida cases in which theeconomic loss rule has been applied. Motorcity andSoutheast actually were the contracting parties;they negotiated a contract and consciously allocatedduties and risks relating to the financing arrangement.FN28 We conclude that the instant case fallswell within the core purposes underlying the economicloss rule.FN28. See, e.g., Interstate Sec., 920 F.2d at774-75; AFM, 515 So.2d at 180-81 (tortclaim barred between contracting parties);Florida Power, 510 So.2d at 902 (same);Strickland-Collins, 545 So.2d at 477(same).Indeed, the only Florida cases seemingly applying a“no alternative recovery” exception to the economicloss rule involve plaintiffs who were not partiesto the underlying contract, and thus involve situationsarguably lying outside of the core purposesof the economic loss rule. See, e.g., First Fla. Bankv. Max Mitchell & Co., 558 So.2d 9 (Fla.1990)(accountant who negotiated loan on behalf of corporationand personally delivered audits of corporationto bank, with knowledge that bank would relyon statements in deciding whether to loan money tocorporation, could be held liable for the bank's economiclosses due to negligent preparation of the© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 34audits-despite lack of contractual privity betweenaccountant and bank); First American Title Ins.Co., Inc. v. First Title Serv. Co. of the FloridaKeys, Inc., 457 So.2d 467, 472 (Fla.1984) (“[W]henan abstract is prepared in the knowledge or underconditions in which an abstracter should reasonablyexpect that the employer is to provide it to thirdpersons for purposes of inducing those persons torely on the abstract as evidence of title, the abstracter'scontractual duty to perform the service skillfullyand diligently runs to the benefit of suchknown third parties.”); A.R. Moyer, Inc. v. Graham,285 So.2d 397 (Fla.1973) (permitting general contractorto recover purely economic tort damagesfrom an architect for negligent supervision of aproject; the general contractor had no contract withthe architect). These cases involve the creation of akind of third party beneficiary status through negligencelaw “when an existing, specifically identifiable,intended beneficiary has not been given thatstatus in the contract.” Sandarac Ass'n, Inc. v. W.R.Frizzell Architects, 609 So.2d 1349, 1353 (Fla.App.2 Dist.1992), review denied, 626 So.2d 207(Fla.1993); see also *1345Airport Rent-A-Car, 660So.2d at 630-31 & n. 4 (explaining that First Americaninvolved a third-party beneficiary cause of actionrather than a negligence cause of action, andlimiting Moyer strictly to its facts).After the Airport Rent-A-Car clarification and narrowingof the “no alternative recovery” exception,it is not clear what the scope of the exception willbe even for an intended third party beneficiary whois not a party to the contract and thus is unable toparticipate in the allocation of the contractual dutiesand risks. However, in this case we need not definethe precise contours of the exception. Unlike an intendedthird party beneficiary of a contract, whose“status can be eliminated by language in a documentover which the third party has no control,”Sandarac, 609 So.2d at 1353, Motorcity was aparty to the floor plan financing agreement, actuallyparticipated in the contract negotiations and allocationof risks, and thus falls within the core purposesunderlying the economic loss rule. Accordingly, webelieve that Florida's courts would apply the economicloss rule to prevent Motorcity from seekingtort remedies for the negligent performance of theaudits.VI. CONCLUSIONIn summary, we hold that the federal common lawD'Oench doctrine has not been preempted, that Motorcity'sattempt to escape the D'Oench bar by repayingits loan fails, that the free-standing tort exceptionto the D'Oench bar is not applicable, andthus that D'Oench bars any reliance by Motorcityon oral agreements and representations. Havingthus stripped away all reliance on oral agreements,we conclude that Motorcity is left without a viablestate law claim based either on fiduciary duty ornegligence. Accordingly, the judgment of the districtcourt is affirmed.AFFIRMED.BIRCH, Circuit Judge, concurring specially:The majority's well-crafted and thorough analysishas persuaded me that the court has reached thecorrect result in this case-and for the right reasons.As the author of the original panel opinion in thiscase, my initial focus had been on the district courtdecision we were charged to review. In that opinion,there was no analysis done of the Florida lawon negligence, the district court finding “that itneed not determine what duty, if any, Florida lawimposed on Southeast as a result of Southeast's exercisingits right to conduct audits under the agreement.Such a duty would arise from Southeast's actions,not from the language of the written agreement.”R2-52-6. It appeared to us, in reviewing thedistrict court's grant of a motion to dismiss and inrefusing to allow a party to amend its complaint,that Motorcity had adequately pleaded Florida tortclaims. Based upon the law argued to us, at thepleading stage, we concluded that:These tort claims derive from Florida common law9 ; they do not depend upon any written or oralcontract provision between Motorcity and South-© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

83 F.3d 1317, 64 USLW 2709(Cite as: 83 F.3d 1317)Page 35east. Indeed, Motorcity would appear capable ofpleading the same two counts had the floor planfinancing agreement never included any mentionof audits.* * * * * *FN9. See Barnett Bank of West Florida v.Hooper, 498 So.2d 923, 925 (Fla.1986)(holding that, under certain conditions, abank assumes a duty to disclose facts materialto a transaction); Saglio v. ChryslerFirst Commercial Corp., 839 F.Supp. 830,834 (M.D.Fla.1993) (“Although the lawdoes not impose a duty upon [a lender] toreasonably perform inventory checks for [aguarantor's] benefit, liability for misfeasancecan lie where a party voluntarily assumesa duty.”).Motorcity of Jacksonville, Ltd. v. Southeast BankN.A., 39 F.3d 292, 299 (11th Cir.1994). Based uponIn re Geri Zahn, 25 F.3d 1539, 1543 (11thCir.1994), and the cases cited therein, we concludedthat Motorcity's negligent-auditing-and-disclosuretort claim was a “free standingtort,” the prosecution of which was not barred byD'Oench or the statutory scheme. The majority'sopinion presents an in-depth analysis of the Floridalaw of negligence, prefaced by the declaration “wemust determine whether Motorcity can state a viablenegligence claim based merely upon the factthat Southeast conducted the audit and sent summaryreports thereof.” Majority at *1346 1341.After an exhaustive analysis, the following conclusionis reached:in this case, no viable independent tort claim exitsunder Florida law. Based upon the analysis of thepertinent law presented by the majority, I mustagree. However, I do not read the majority's opinionto negate or question the continuing vitality ofthe “free standing tort” exception to the D'Oenchdoctrine. Accordingly, I conclude that a wellpleaded,viable state law tort claim may still be pursuedwithout the bar of D'Oench or the applicablefederal statute discussed in the opinion. The factthat the tort claim arose out of the banking relationshipshould not prevent its prosecution.C.A.11 (Fla.),1996.Motorcity of Jacksonville, Ltd. By and ThroughMotorcity of Jacksonville, Inc. v. Southeast Bank,N.A.83 F.3d 1317, 64 USLW 2709END OF DOCUMENTWe conclude that the Florida case law would implya tort duty only when actions are undertakenfor the benefit of another. It would be inconsistentwith well-established Florida law to infer atort duty merely on account of actions undertakenpursuant to the protection of one's own interests.Majority at 1342-43 (footnote omitted). Thus, themajority concludes that, under the facts as pleaded© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 1United States Court of Appeals,Eleventh Circuit.MOTORCITY OF JACKSONVILLE, LTD., a limitedpartnership, by and through its general partnerMotorcity of Jacksonville, Inc., a Florida corporation,David S. Hess, Plaintiffs-Appellants,v.SOUTHEAST BANK N.A., David Feigenbaum,Defendants,Federal Deposit Insurance Corporation, as receiverfor Southeast Bank, N.A., Defendant-Appellee.No. 93-4634.Aug. 20, 1997.Automobile dealership and one of its investorsbrought state court action against bank thatprovided dealership's floor plan financing and bankemployee, based on bank's failure to notify dealershipof out-of-trust sales occurring at dealership.After bank was declared insolvent and the FederalDeposit Insurance Corporation (FDIC), as bank'sreceiver, removed action, dealership and investoramended complaint to assert claim only for breachof written contract. After granting FDIC's motion todismiss, the United States District Court for theSouthern District of Florida, No. 91-2305-CIV,Shelby Highsmith, J., denied dealership and investor'smotion for leave to amend complaint to addstate-law tort claims. Dealership and investor appealed.The Court of Appeals, 39 F.3d 292, vacatedand remanded. FDIC petitioned for en banc hearing,which was granted, vacating panel opinion.The Court of Appeals, 83 F.3d 1317, affirmed districtcourt. Dealership and investor petitioned forwrit of certiorari, which was granted. The UnitedStates Supreme Court, 519 U.S. 1087, 117 S.Ct.760, 136 L.Ed.2d 708, vacated and remanded. TheCourt of Appeals, Anderson, Circuit Judge, heldthat: (1) D'Oench doctrine was not statutorily abrogatedby provisions of Financial Institutions Reform,Recovery and Enforcement Act of 1989(FIRREA) codifying developments under doctrine;(2) Federal Deposit Insurance Act of 1950 did notabrogate federal common-law D'Oench doctrine;and (3) FIRREA provision requiring FDIC to payvalid obligations of failed bank in accordance with“limitations of this chapter” did not statutorily abrogateD'Oench doctrine.Opinion reinstated; affirmed.West Headnotes[1] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesFederal common-law D'Oench doctrine was notstatutorily abrogated by provisions of Financial InstitutionsReform, Recovery and Enforcement Actof 1989 (FIRREA) codifying developments underdoctrine; Congress did not intend FIRREA to displacedoctrine, but rather to continue harmonious,40-year coexistence of statute and doctrine. FederalDeposit Insurance Act, §§ 2[11] (d)(9)(A), 2[13](e),as amended, 12 U.S.C.A. §§ 1821(d)(9)(A),1823(e).[2] Statutes 361 222361 Statutes361VI Construction and Operation361VI(A) General Rules of Construction361k222 k. Construction with Referenceto Common or Civil Law. Most Cited CasesPresumption exists in favor of retaining existingfederal common law unless statutory purpose tocontrary is evident.[3] Courts 106 96(3)106 Courts106II Establishment, Organization, and Procedure© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 2106II(G) Rules of Decision106k88 Previous Decisions as Controllingor as Precedents106k96 Decisions of United StatesCourts as Authority in Other United States Courts106k96(3) k. Supreme Court Decisions.Most Cited CasesFederal district courts and circuit courts are boundto adhere to controlling decisions of United StatesSupreme Court.[4] Courts 106 96(3)106 Courts106II Establishment, Organization, and Procedure106II(G) Rules of Decision106k88 Previous Decisions as Controllingor as Precedents106k96 Decisions of United StatesCourts as Authority in Other United States Courts106k96(3) k. Supreme Court Decisions.Most Cited CasesCourts of appeals must follow United States SupremeCourt precedent that has direct application ina case, even if it appears that reasoning of SupremeCourt precedent has been rejected in other cases.[5] Courts 106 96(3)106 Courts106II Establishment, Organization, and Procedure106II(G) Rules of Decision106k88 Previous Decisions as Controllingor as Precedents106k96 Decisions of United StatesCourts as Authority in Other United States Courts106k96(3) k. Supreme Court Decisions.Most Cited CasesOnly United States Supreme Court has prerogativeof overruling its own decisions.[6] Courts 106 96(3)106 Courts106II Establishment, Organization, and Procedure106II(G) Rules of Decision106k88 Previous Decisions as Controllingor as Precedents106k96 Decisions of United StatesCourts as Authority in Other United States Courts106k96(3) k. Supreme Court Decisions.Most Cited CasesCourt of Appeals lacked authority and grounds tooverrule United States Supreme Court's decision inD'Oench, which created federal common-lawD'Oench doctrine.[7] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesFederal Deposit Insurance Act of 1950 did not abrogatefederal common-law D'Oench doctrine. FederalDeposit Insurance Act, § 2[1] et seq., 12U.S.C.A. § 1811 et seq.[8] Banks and Banking 52 50552 Banks and Banking52XI Federal Deposit Insurance Corporation52k505 k. Powers, Functions and Dealings inGeneral. Most Cited CasesProvision of Financial Institutions Reform, Recoveryand Enforcement Act of 1989 (FIRREA) requiringFederal Deposit Insurance Corporation (FDIC),as conservator or receiver, to pay valid obligationsof failed bank in accordance with “limitations ofthis chapter” did not statutorily abrogate D'Oenchdoctrine; provision assumed that claims in questionwere valid and addressed only manner in which validclaims were to be paid. Federal Deposit InsuranceAct, § 2[11](d)(2)(H), 12 U.S.C.A. §1821(d)(2)(H).*1141 Dyanne E. Feinberg, Miami, FL, Kipp A.Coddington, Christopher D. Cerf, Daniel E. Troy,Stephen Goldman, Washington, DC, for Plaintiffs-Appellants.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 3Julie Feigeles, Miami, FL, S. Alyssa Roberts,James Scott Watson, Washington, DC, for Defendant-Appellee.Appeal from the United States District Court for theSouthern District of Florida.Before HATCHETT, Chief Judge, TJOFLAT, AN-DERSON, EDMONDSON, COX, BIRCH, DU-BINA, BLACK, CARNES and BARKETT, CircuitJudges, and KRAVITCH FN* , Senior CircuitJudge.FN* Senior U.S. Circuit Judge Phyllis A.Kravitch participated in both the initialpanel decision and the prior en banc decisionin this case while she was in regularactive service. She took senior status effectiveJanuary 1, 1997, and has elected toparticipate in this decision pursuant to 28U.S.C. § 46(c).ON REMAND FROM THE SUPREME COURTOF THE UNITED STATES.ANDERSON, Circuit Judge:I. INTRODUCTIONIn this case, appellants Motorcity of Jacksonville,Ltd. and David S. Hess (collectively “Motorcity”)contend that the district court erroneously granted amotion to dismiss in favor of appellee Federal DepositInsurance Corporation (“FDIC”) based on theD'Oench doctrine. FN1 See D'Oench, Duhme & Co.,Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed.956 (1942). A panel of this court vacated the districtcourt's dismissal. See Motorcity of Jacksonville,Ltd. v. Southeast Bank N.A., 39 F.3d 292(11th Cir.1994). FN2 On rehearing en banc, thiscourt affirmed the district court's dismissal, holdingthat neither the Federal Deposit Insurance Act of1950, Pub.L. No. 797, 64 Stat. 873, nor the FinancialInstitutions Reform, Recovery and EnforcementAct of 1989 (“FIRREA”), Pub.L. No. 101-73,103 Stat. 183, displaced the federal common lawD'Oench doctrine. See Motorcity of Jacksonville,Ltd. v. Southeast Bank N.A., 83 F.3d 1317, 1327-34(11th Cir.1996) (en banc). FN3 At the time of our enbanc decision, the D.C. Circuit and the Eighth Circuithad held that FIRREA displaced the D'Oenchdoctrine. See Murphy v. FDIC, 61 F.3d 34, 40(D.C.Cir.1995) (holding that FIRREA supplantedthe D'Oench doctrine); *1142DiVall Insured IncomeFund Ltd. Partnership v. Boatmen's FirstNat'l Bank, 69 F.3d 1398, 1402 (8th Cir.1995)(following the D.C. Circuit's holding in Murphythat FIRREA supplanted the D'Oench doctrine).Since the time of our decision, the Fourth Circuithas held that FIRREA does not displace theD'Oench doctrine. See Young v. FDIC, 103 F.3d1180, 1187 (4th Cir.1997) (following the holding inour en banc Motorcity decision that FIRREA doesnot abrogate the D'Oench doctrine). There is thus asplit in the circuits on this issue. See FDIC v.Houde, 90 F.3d 600, 605 n. 5 (1st Cir.1996) (notingthe split in the circuits).FN1. For a recitation of the facts underlyingthis case, see Motorcity of Jacksonville,Ltd. v. Southeast Bank N.A., 83 F.3d1317, 1321-22 (11th Cir.1996) (en banc).FN2. The panel decision was based on thefree standing tort exception to the D'Oenchdoctrine and did not address the preemptionissue discussed in our en banc decision.FN3. We also reaffirmed that the D'Oenchdoctrine is not limited by a specific assetrequirement, held that the free standing tortexception to the D'Oench doctrine does notapply to this case, and held that Motorcitydoes not have a viable state law claim. Id.at 1336, 1338, 1345.The Supreme Court granted certiorari in this case,vacated our judgment, and remanded this case for© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 4further consideration in light of Atherton v. FDIC,519 U.S. 213, 117 S.Ct. 666, 136 L.Ed.2d 656(1997). Hess v. FDIC, 519 U.S. 1087, 117 S.Ct.760, 136 L.Ed.2d 708 (1997).II. DISCUSSIONIn Atherton, the Resolution Trust Corporation(“RTC”) sued officers and directors of a federalsavings association (“bank”), which had gone intoreceivership with the RTC as receiver. Atherton,519 U.S. at ----, 117 S.Ct. at 669. The RTC claimedthat the bank's officers and directors had violatedthe legal standard of care which they owed to thebank. Id. The issue in Atherton was whether courtsshould look to state law, to federal common law, orto 12 U.S.C. § 1821(k), a provision of FIRREA, todetermine what the standard of care is for federalbank officers and directors. Id. The Court held thatstate law determines the standard of care so long asthe state standard is stricter than the gross negligencestandard set forth in § 1821(k). Id. at ----,117 S.Ct. at 674. The Court explained that §1821(k) sets a gross negligence floor which appliesif the state standard of care is less strict. Id.In reaching this conclusion, the Court first set §1821(k) “to the side” and asked “whether, werethere no such statute, federal common law wouldprovide the applicable legal standard.” Id. at ---- - ----, 117 S.Ct. at 669-70. The Court recognized thatit had articulated in Briggs v. Spaulding, 141 U.S.132, 11 S.Ct. 924, 35 L.Ed. 662 (1891), a federalcommon law corporate governance standard. Atherton,519 U.S. at ----, 117 S.Ct. at 670. However, theCourt noted that Briggs was decided long beforeErie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,82 L.Ed. 1188 (1938), held that there is no federalgeneral common law. Atherton, 519 U.S. at ----,117 S.Ct. at 670. The Court then addressed the issueof whether Briggs survived Erie, and held thatit did not. Id. After so holding, the Court examinedwhether the matter of corporate governance standardsfor federally chartered banks was one of thefew and restricted areas in which judicial creationof federal common law was justified. Id. Applyingpost-Erie jurisprudence, the Court characterized theissue as being whether the use of state law wouldconstitute a significant conflict with some federalpolicy or interest such that the creation of a federalcommon law rule would be appropriate. Id. TheCourt examined several asserted federal interestsand concluded that the use of state law would notsignificantly conflict with or pose a threat to any ofthese interests. Id. at ----, 117 S.Ct. at 673. TheCourt explained that “[t]he federal need [in thiscase] is far weaker than was present in what theCourt has called the ‘few and restricted instances' ...in which this Court has created a federal commonlaw.” Id. (quoting Milwaukee v. Illinois, 451 U.S.304, 313, 101 S.Ct. 1784, 1790, 68 L.Ed.2d 114(1981)).The Court thus overruled Briggs, declined to createa new federal common law rule, and concluded that“[t]here is no federal common law that would createa general standard of care applicable to thiscase.” Id. at ----, 117 S.Ct. at 674. Having concludedthat there was no applicable federal commonlaw, the Court then embarked on its only preemptionanalysis. The Court analyzed whether §1821(k) set the sole standard of care for federalbank officers and directors, thus preempting statelaw, or whether it merely set a floor guaranteeing atleast a gross negligence standard. Relying on thestatute's purpose and legislative history and on thesavings clause of § 1821(k), which states that“[n]othing in this paragraph shall impair or affectany right of the Corporation under other applicablelaw,” the Court held that the *1143 statute merelysets a gross negligence floor and that stricter statestandards are not preempted. Id. at ---- - ----, 117S.Ct. at 674-76.As the above discussion indicates, Atherton doesnot address the question of whether a federal statuteabrogates a previously established and longstandingfederal common law doctrine. It is truethat the Atherton facts implicated the preexistingfederal common law rule announced in Briggs.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 5However, rather than addressing whether § 1821(k)displaced the Briggs rule, the Court explicitly set §1821(k) to the side and addressed the different issueof whether Briggs survived Erie. After concludingthat Briggs did not survive, thus leaving no federalcommon law regarding the standard of care, theCourt obviously never reached or addressed any issueof statutory abrogation of federal common law.FN4 Thus, in Atherton, as in O'Melveny & Myers v.FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67(1994), the Court's analysis focused on determiningwhether to create federal common law.FN4. Consistent with this approach, Athertondoes not even cite United States v.Texas, 507 U.S. 529, 113 S.Ct. 1631, 123L.Ed.2d 245 (1993), the most recent SupremeCourt decision addressing whetherCongress intended to abrogate a preexistingand long-standing federal common lawdoctrine.[1][2] By contrast, the federal common law rule atissue in this case, the D'Oench doctrine, was firstarticulated by the Supreme Court in 1942, afterErie. The issue in this case therefore is not whetherthe D'Oench doctrine survived Erie, but ratherwhether Congress intended FIRREA to supplant thepreviously established and long-standing federalcommon law D'Oench doctrine. As explained in ourprevious en banc opinion, United States v. Texas,507 U.S. 529, 113 S.Ct. 1631, 123 L.Ed.2d 245(1993), applies in this context and provides a presumptionin favor of retaining existing federal commonlaw unless a statutory purpose to the contraryis evident. See id. at 534, 113 S.Ct. at 1634; Motorcity,83 F.3d at 1330-34.[3][4][5][6] In order to transform this case into onefor which the analysis of Atherton and O'Melveny isappropriate, this court would be required to overrulethe Supreme Court's decision in D'Oench,which we cannot do. “Federal district courts andcircuit courts are bound to adhere to the controllingdecisions of the Supreme Court.” Jaffree v. Wallace,705 F.2d 1526, 1532 (11th Cir.1983), aff'd,472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).The courts of appeals must follow Supreme Courtprecedent that has “direct application” in a case,even if it appears that the reasoning of the SupremeCourt precedent has been rejected in other cases.Rodriguez De Quijas v. Shearson/American Express,Inc., 490 U.S. 477, 484, 109 S.Ct. 1917,1921, 104 L.Ed.2d 526 (1989). See also FloridaLeague of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d457, 462 (11th Cir.), cert. denied, 519 U.S. 1010,117 S.Ct. 516, 136 L.Ed.2d 405 (1996). Only theSupreme Court has “the prerogative of overrulingits own decisions.” Rodriguez De Quijas, 490 U.S.at 484, 109 S.Ct. at 1922.Moreover, we detect no indications that D'Oench isripe for overruling. It is true that in its post-Eriejurisprudence, the Supreme Court has explainedthat the creation of federal common law is appropriateonly in the “ ‘few and restricted’ ” instanceswhere the use of state law would pose a significantthreat to or conflict with a federal policy or interest.O'Melveny, 512 U.S. at 87, 114 S.Ct. at 2055(quoting Wheeldin v. Wheeler, 373 U.S. 647, 651,83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963)).However, in D'Oench, the Court examined the FederalReserve Act and identified a significant federalinterest and policy which warranted the creation ofa federal common law rule:Public policy requires that a person who, for the accommodationof the bank, executes an instrumentwhich is in form a binding obligation, should be estoppedfrom thereafter asserting that simultaneouslythe parties agreed that the instrument should not beenforced.... Those principles are applicable here becauseof the federal policy evidenced in this Act toprotect [the FDIC] ... from misrepresentations madeto induce or influence the action of [the FDIC], includingmisstatements as to the genuineness or integrityof *1144 securities in the portfolios of bankswhich it insures.... It would be sufficient in thistype of case that the maker lent himself to a schemeor arrangement whereby the banking authority ...was or was likely to be misled.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 6D'Oench, 315 U.S. at 459-60, 62 S.Ct. at 680-81(citations and internal quotations omitted). FN5FN5. We reject Motorcity's attempt to limitD'Oench to its narrow facts-i.e., to casesinvolving a secret agreement related to aspecific asset. Rather, we think it is clearfrom the D'Oench opinion that the Courtapplied a broader principle of law to thespecific facts of that case. This reading isconfirmed by the long-standing and wellestablisheddecisions of the several courtsof appeals. Similarly, Motorcity's emphasison the fact that it had paid off its loan beforethe FDIC took over Southeast Bankmisconceives the federal policy of protectingthe FDIC from misrepresentations. Thebank examiners and the FDIC were misledfrom the moment Motorcity's written floorplan financing agreement appeared in thebank's records without the secret sideagreement on which Motorcity seeks torely.[7][8] For the foregoing reasons, we decline to acceptMotorcity's invitation to overrule D'Oench.With the D'Oench doctrine safely in place as along-standing federal common law rule, we concludethat the appropriate analysis for the statutoryabrogation issue presented in this case is that articulatedin United States v. Texas, and not that articulatedin Atherton and O'Melveny. We continue tobelieve that the analysis set forth in our prior enbanc opinion reflects the most reasonable readingof Congress's intent-i.e., that Congress did not intendFIRREA to displace the D'Oench doctrine, butrather intended to continue the harmonious, fortyyearcoexistence of the statute and the D'Oenchdoctrine. FN6FN6. Having resolved the issue for whichthis case was remanded by the SupremeCourt, we address in this footnote the severalother arguments asserted by the partieson remand. We reject Motorcity's argumentthat Congress intended the FederalDeposit Insurance Act of 1950 to abrogatethe D'Oench doctrine. Motorcity points tono indication, and our review has disclosedno indication, in the 1950 Act or its legislativehistory that Congress intended the1950 Act to displace the D'Oench doctrine.See Motorcity, 83 F.3d at 1332. See alsoFDIC v. McClanahan, 795 F.2d 512, 514n. 1 (5th Cir.1986) (“The discussion of [§1823(e) ] in the [1950 Act's] legislativehistory does not mention D'Oench, Duhme.”).Motorcity also contends that §1821(d)(2)(H) indicates that Congressintended for FIRREA to displace theD'Oench doctrine. Section 1821(d)(2)(H)provides that “[t]he Corporation, as conservatoror receiver, shall pay all validobligations of the insured depository institutionin accordance with the prescriptionsand limitations of this chapter.” 12U.S.C. § 1821(d)(2)(H). Motorcity contendsthat this provision supplants theD'Oench doctrine because the D'Oenchdoctrine is not a “limitation[ ] of thischapter.” We agree with the FDIC,however, that § 1821(d)(2)(H) does notindicate a congressional intent to displacethe D'Oench doctrine. Instead, §1821(d)(2)(H) assumes that the claims inquestion are valid and addresses only themanner in which valid claims are to bepaid. We think it is clear that the UnitedStates v. Texas test for statutory abrogationof federal common law has not beenmet. We are satisfied that it cannot besaid that there is an “evident” statutorypurpose to overcome the “ ‘presumptionfavoring the retention of long-establishedand familiar principles.’ ”United States v. Texas, 507 U.S. at 534,113 S.Ct. at 1634 (quoting IsbrandtsenCo. v. Johnson, 343 U.S. 779, 783, 72S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952)).© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343(Cite as: 120 F.3d 1140)Page 7Although not argued in its letter brief onremand, the FDIC has recently issued aStatement of Policy stating that 12U.S.C. §§ 1821(d)(9)(A) and 1823(e)should be interpreted in a manner consistentwith the policy concerns underlyingthe D'Oench doctrine. Accordingly,... these sections bar claims that do notmeet the enumerated recording requirementsset forth in section 1823(e), regardlessof whether a specific asset is involved,to the same extent as such claimswould be barred by the D'Oench doctrine.Statement of Policy Regarding FederalCommon Law and Statutory ProvisionsProtecting FDIC, as Receiver or CorporateLiquidator, Against UnrecordedAgreements or Arrangements of a DepositoryInstitution Prior to Receivership,62 Fed.Reg. 5984, 5984 (1997).But see Murphy v. FDIC, 61 F.3d 34, 38(D.C.Cir.1995); Thigpen v. Sparks, 983F.2d 644, 649 (5th Cir.1993); In re NBWCommercial Paper Litigation, 826F.Supp. 1448, 1464-65 (D.D.C.1992). Ofcourse, if the FDIC's position is correct,and if § 1821(d)(9)(A) applies to thiscase, then the FDIC would prevailwithout our needing to reach the preemptionissue.need not delve into an analysis of whetherFIRREA's application to this casewould pose a retroactivity problem. Cf.O'Melveny, 512 U.S. at 85-89, 114 S.Ct.at 2054-55 (declining to resolve the retroactivityquestion).*1145 III. CONCLUSIONHaving carefully reconsidered our decision in lightof Atherton, we REINSTATE our prior en bancopinion published at 83 F.3d 1317, and we REIN-STATE our judgment AFFIRMING the districtcourt's judgment granting the FDIC's motion to dismiss.C.A.11 (Fla.),1997.Motorcity of Jacksonville, Ltd. v. Southeast BankN.A.120 F.3d 1140, 11 Fla. L. Weekly Fed. C 343END OF DOCUMENTFinally, the FDIC has argued for the firsttime on remand that FIRREA cannot applyto this case because the alleged arrangementat issue occurred prior toFIRREA's enactment. Motorcity arguesthat FIRREA can apply to this case becausethe FDIC became the receiver forSoutheast Bank after FIRREA's enactment.Because we conclude that FIR-REA did not displace the D'Oench doctrine,and because we conclude that Motorcity'sclaims are D'Oench-barred, we© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.