### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk May 17, 1999



### TO: ALL RECIPIENTS OF THE OPINION


### RE: 98-1021, FDIC v. Noel Filed on May 14, 1999 The slip opinion filed on May 14, 1999, contains a word processing error on page 14, footnote number 5. Please disregard the g ray shading around footnote number 5. A copy of the corrected page 14 is attached. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk

encl.

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 14 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Western Gulf Savings and Loan Association, a Texas savings and loan association, Plaintiff-CounterDefendant-Appellee,

v. WALLACE R. NOEL,

Defendant-CounterClaimant-Appellant. No. 98-1021

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D. Ct. No. 90-B-2066)
David M. Berrett, Barnett, Berrett, King & Southam, LLC, Aurora, Colorado (Scott Rothenberg, Law Offices of Scott Rothenberg, Bellaire, Texas, on the opening brief), appearing for Appellant. Maria Beatrice Valdez, Counsel, Federal Deposit Ins urance Corporation, Washington, DC (Ann S. DuRoss, Assistant General Co unsel, and Lawrence Richmond, Acting Senior Counsel, Federal Deposit In surance Corporation, Washington, DC, and James R. Miller and Paul R. Woo d, Miller & Welch, LLC, Denver, Colorado, with her on the brief), appearing for Appellee.

Before TACHA , HENRY , and MURPHY , Circuit Judges.- 2 -

TACHA , Circuit Judge.

The Resolution Trust Corporation (“RTC”), as receiv er for Western Gulf Savings and Loan Association, brought this action a gainst Wallace R. Noel for breach of a promissory note, deceit, and other clai ms arising out of a failed real estate transaction. Noel asserted numerous defense s and counterclaims against the RTC. The Federal Deposit Insurance Corporation (“FDIC”) statutorily succeeded the RTC and moved for summary judgment, a rguing that the D’Oench, Duhme & Co. v. FDIC , 315 U.S. 447 (1942), doctrine barred defendant’s affirmative defenses and counterclaims. The distri ct court granted its motion, holding that Noel breached the promissory note as amatter of law. The FDIC’s claims for deceit and other tort causes of action w ere tried to a jury. The jury found in favor of the FDIC, and the court entered f inal judgment in accordance with the jury verdict and rejected defendant’s moti on for new trial or judgment as a matter of law. Defendant appeals from these orde rs. We affirm. I. Background In 1982, Noel bought a piece of undeveloped property near the Colorado State University campus in Fort Collins, Colorado, which he sought to develop. Soon after purchasing the land, Noel met Ray Pogue, who presented himself as a developer with contacts at several institutions that could arrange financing for the- 3 -

development of Noel’s land. Noel entered into an a greement to form University Courts Partnership Ltd. (“University Courts”), a li mited partnership consisting of Mile High Mortgage and Investment Company of Colora do, Inc. (“Mile High”), Noel, and others. Mile High, the general partner, owned a 50% interest, Noel, a limited partner, owned 25%, and various other limit ed partners cumulatively owned 25%. Western Gulf Service Corporation (“WGSC ”) owned 51% of Mile High, while Pogue owned the other 49%. WGSC was a subsidiary of Western Gulf Savings and Loan Association (“Western Gulf”). In 1983, Pogue and Noel applied for a $2.5 million construction loan from Western Gulf. Pogue sent Western Gulf Noel’s finan cial statement, showing a net worth in excess of $5 million, asking that Western Gulf “add this ‘strength’ to the documents [it] had on University Courts.” Appellan t’s App., Vol. II, tab A3. The loan closed on May 25, 1983. Mile High, through it s executive vice-president Pogue, signed the note for University Courts as its general partner. Noel signed the note both as a limited partner of University Co urts and in his individual capacity. At the closing, Pogue and Noel entered i nto an written agreement in which Pogue agreed to indemnify Noel for any liabil ity Noel might incur on the note. Western Gulf, however, never released Noel f rom liability on the note. Shortly after the closing, University Courts paid N oel $610,000 out of the loan proceeds for his land.- 4 -

Although payable to Mile High, Mile High immediatel y assigned the note to Western Gulf. In October 1983, WGSC bought Pogu e’s 49% share in Mile High. Mile High thus became a wholly-owned subsidi ary of Western Gulf. When the promissory note became due on May 25, 1984 , Western Gulf extended the note, over Noel’s objection, until Nov ember 25, 1984, and again to May 25, 1985. According to the terms of the note, Western Gulf did not need Noel’s permission to extend the payment date. Univ ersity Courts did not pay the note, and it went into default. By mid-1985, Weste rn Gulf took control of the property. It also ceased the operations of WGSC an d Mile High. In March 1990, Western Gulf foreclosed on the property. It bid $8 63,655.90 at the foreclosure sale, leaving a deficiency of $2,552,799.13 on the note. On November 8, 1990, the RTC was appointed receiver of Western Gulf, and it filed this lawsuit against Noel on November 21, 1990. Thus began this lawsuit ’s lengthy sojourn through the court system. RTC’s original complaint alleged one claim based on the promissory note, and another claim for unjust enrichment based on th e fact that Noel received the benefit of a $2.5 million loan without repaying it. Noel filed an answer, asserting several affirmative defenses, including his right t o set-off or recoupment, and five counterclaims. The RTC amended its complaint on Ju ly 27, 1992, adding four claims based on false representation, non-disclosur e and concealment, civil1 The amended complaint also contained a new claim for breach of the covenant of good

faith and fair dealing. This claim was later dismissed when the RTC confessed Noel’s motion to dismiss that particular claim. - 5 - conspiracy to commit false representation, and civi l conspiracy to commit nondisclosure and concealment. 1 The RTC premised these new allegations on Noel’s deposition testimony in which he stated thatwhen he signed the note, he did not intend to ever make payments. Noel filed a motion to dismiss, arguing that the st atute of limitations barred the fraud claims, the unjust enrichment claims were unfounded, and RTC’s claim against him based on the promissory note was subjec t to set-off because he was entitled to indemnification from Western Gulf, whic h he claimed acted as the alter ego of Mile High. The district court granted summa ry judgment in favor of Noel. In an unpublished order and judgment, we affirmed t he district court’s dismissal of the RTC’s unjust enrichment claims, but reversed the district court’s grant of summary judgment on the RTC’s fraud claims and Noel ’s claims based on the alter ego doctrine, holding that genuine issues of material fact precluded summary judgment. See Resolution Trust Corp. v. Noel , No. 94-1195, 1995 WL 490293, at *4 (10th Cir. Aug. 16, 1995). We also noted that t he district court order contained no mention of D’Oench, Duhme & Co. v. FDI C , 315 U.S. 447 (1942).
See id. On remand, the FDIC, RTC’s statutory successor, fil ed a motion for- 6 -

summary judgment, asserting that the D’Oench doctrine and 12 U.S.C. § 1823 barred Noel’s counterclaims and affirmative defense s. The common law D’Oench doctrine and its statutory codification, 12 U.S.C. § 1823, prohibit claims based on agreements not reflected in the official records of a failed bank or savings and loan institution. Noel responded that his counterc laims and affirmative defenses met the requirements of D’Oench . On June 17, 1996, the district court granted summary judgment in favor of the FDIC on its promis sory note claim. It held that Noel could not use the alter ego doctrine against t he FDIC because the FDIC was not culpable for Western Gulf’s behavior and no ine quity would result from it recovering. It further held that D’Oench and 12 U.S.C. § 1823(e) barred his counterclaims and defenses, despite Noel’s argumentthat a bank regulator would have been on notice that Noel had legal claims agai nst Western Gulf, because none of the documents proffered by Noel met the § 1 823(e) requirements. Noel moved for reconsideration, which the district court denied on April 25, 1997. The court, on motion by Noel, clarified its summary judgment order, noting that Noel’s motion for clarification was, “i n essence, a thinly veiled third motion for reconsideration of [its] June 17, 1996, order.” Dist. Ct. Order at 3 (May 13, 1997). It stated that it had granted the FDIC’s motion for summary judgment on Noel’s counterclaims for breach of fidu ciary duty and accounting and dissolution of partnership. It also dismissed Noel’s counterclaim for punitive2Noel had previously withdrawn his other two counterclaims for fraud and fraud in the

inducement. - 7 - damages, 2 leaving for trial the FDIC’s claims for fraud and conspiracy. The FDIC’s remaining claims proceeded to trial, and the jury returned a verdict in favor of the FDIC for $2,552,779.13. Th e court entered judgment in accordance with the jury verdict. Noel subsequentl y moved for judgment as a matter of law, for new trial, and to alter or amend the judgment. Noel again argued that the district court erred in granting su mmary judgment on the FDIC’s promissory note claim and attendant dismissal of No el’s defenses and counterclaims. He argued, in part, as he did in hi s motion for reconsideration of the summary judgment order, that the court ignored evidence of the FDIC’s involvement with Western Gulf in acts that form the basis for his claims predicated on the alter ego doctrine. Noel also as serted that the district court erroneously applied § 1823(e) retroactively. In hi s reply brief to this motion, Noel, for the first time, argued that D’Oench does not apply to the FDIC in its receivership capacity. The court denied Noel’s mot ion. Noel timely filed his notice of appeal. He argues on appeal that the district court erred when it applied § 1823(e) to this case. He further argues that the common law D’Oenchdoctrine does not apply to the FDIC in its receive rship capacity. In his reply brief on appeal, he asserts that if the D’Oench doctrine does apply, his alter ego/breach of fiduciary duty count erclaim meets its requirements.- 8 -

II. Waiver “[A] federal appellate court [will] not consider an issue not passed upon below.” Singleton v. Wulff , 428 U.S. 106, 120 (1976). Consequently, when a litigant fails to raise an issue below in a timely fashion and the court below does not address the merits of the issue, the litigant h as not preserved the issue for appellate review. See Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 722-23 (10th Cir. 1993) (recognizing that an “untimely mot ion . . . is not sufficient to preserve an issue for appellate review,” and not ad dressing on appeal an issue that defendant raised for the first time below in a post -trial motion); Melton v. City of Oklahoma City , 879 F.2d 706, 718 n.15 (10th Cir. 1989) (finding issue that party did not properly raise before district court until Motion for Judgment N.O.V. was not properly preserved for appeal); Burnette v. Dre sser Indus., Inc. , 849 F.2d 1277, 1285 (10th Cir. 1988) (declining to address a rguments on appeal not considered below because litigant first raised them in a motion for reconsideration). In this case, Noel failed to tim ely present the issue of whether the D’Oenchdoctrine applies to the FDIC as receiver to the di strict court. Noel did not argue that the D’Oench doctrine does not apply to the FDIC when it acts in its receivership capacity until his reply brief in support of a motion for new trial, judgment as a matter of law, and to alter or amend judgment. He filed this motion after completion of the trial and nearly sev enteen months after the district- 9 -

court entered summary judgment pursuant to the D’Oe nchdoctrine. Moreover, Noel did not even raise this issue in his initial b rief in support of his post-trial motion; he waited until his replybrief. The district court, not surprisingly, did not address the merits of this issue in its one-pag e order denying Noel’s motion.
See Dist. Ct. Order (Dec. 19, 1997). Noel argues that despite his tardiness in raising i t below, we should not preclude this argument because it stems from two op inions, Atherton v. FDIC , 117 S. Ct. 666 (1997), and Ledo Fin. Corp. v. Summe rs , 122 F.3d 825 (9th Cir. 1997), issued after the court’s ruling on summary j udgment. In Ledo , the Ninth Circuit, relying on the principles enunciated in O’ Melvany & Myers v. FDIC , 512 U.S. 79, 83-85 (1994) and Atherton , 117 S. Ct. at 673, concluded that “no unique federal interest exists to justify application of f ederal common law.” Ledo , 122 F.3d at 829. Thus, it held that the common law D’O enchdoctrine does not apply to the FDIC as receiver. See id. Noel argues that we should follow the reasoning of the Ninth Circuit. Although new law often justifies an untimely motion , this exception does not apply in this case. Even assuming, without dec iding, that Atherton changed the legal landscape in applying the common law D’Oe nchdoctrine and even if we were to accept the Ninth Circuit reasoning, Noel co uld have raised these arguments in the district court prior to June 1996. Related arguments regarding- 10 -

the vitality of D’Oench as it applies to the FDIC in its receivership capa city have been argued since O’Melveny & Myers v. FDIC , 512 U.S. 79 (1994). See Motorcity of Jacksonville, Ltd. v. Southeast Bank , 83 F.3d 1317, 1327, 1329-30 (11th Cir. 1996) (en banc), vacated by Hess v. FDIC , 519 U.S. 1087 (1997); DiVall Insured Income Fund Ltd. Partnership v. Boat men’s First Nat’l Bank of Kansas City , 69 F.3d 1398, 1401-03 (8th Cir. 1995); Murphy v. FDIC , 61 F.3d 34, 38-40 (D.C. Cir. 1995). Indeed, the Ninth Circuit in Ledo explicitly relied, in part, on O’Melvany & Myers . See Ledo , 122 F.3d at 828-29. The Supreme Court issued O’Melveny & Myers on June 13, 1994, two years prior to the district court’s grant of summary judgment in this case. No el has no excuse for failing to timely raise this argument. Moreover, even if we accepted Noel’s argument, he h as failed to assert any reason for his failure to include this argument in his initial post-verdict motion. Both decisions upon which Noel purportedly relies w ere issued months before he filed his motion for new trial, judgment as a matte r of law, and to alter or amend judgment. In choosing not to assert this argument until his reply, Noel precluded a response by the FDIC and prevented reasoned consi deration by the district court. Therefore, we hold that Noel has waived the argument that the D’Oench common law doctrine does not apply to the FDIC as r eceiver.
III. 12 U.S.C. § 1823(e) and D’Oench- 11 -

Noel argues that the district court erred in granti ng FDIC’s motion for summary judgment by retroactively applying 12 U.S.C . § 1823(e) and rejecting his argument that the D’Oench doctrine does not bar his defenses and counterclaims because they arise from documents con tained in the records of Western Gulf. We review de novo the district court ’s grant of summary judgment, construing the factual record and the rea sonable inferences drawn from it in the light most favorable to the nonmoving party. See, e.g. , Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). In deciding t he appropriateness of summary judgment, “[w]e are not limited to the grounds upon which the trial court relied but may base summary judgment on any proper grounds found in the record to permit conclusions of law.” Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc. , 131 F.3d 874, 882 (10th Cir. 1997) (internal quot ation marks and citation omitted)). Thus, we “affirm the district court’s decision to grant summary judgment if the record contains any basis t o do so.” Morgan v. Hilti,
Inc. , 108 F.3d 1319, 1321 (10th Cir. 1997) (quoting Jon es v. Unisys Corp. , 54 F.3d 624, 628 (10th Cir. 1995)). Noel contends that the district court erred by retr oactively applying the requirements of 12 U.S.C. § 1823(e) to this case. We agree. Prior to the Financial Institutions Reform, Recovery, and Enforc ement Act (“FIRREA”) amendments in 1989, § 1823(e) applied only to the F DIC in its corporate capacity.3 In his opening brief, Noel states that “if the common law permutation of 1823(e), that

is, D’Oench Duhmeapplies to Noel’s claims, then Noel is not entitled to relief herein.” Appellant’s Br. at 15. Although we could appropriately consider the argument regarding whether Noel can meet the requirements of D’Oench waived for not arguing, indeed conceding, it in his opening brief, seeState Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994), we reach the merits of his argument. Noel vigorously argued to the district court tha t his defenses and counterclaims met the requirements of D’Oench . He further asserted this argument in his reply brief, characterizing his opening brief concession as error. Given the par ticular circumstances of this case, including the thorough examination of the argument by the FD IC contained in the record, we do not deem this argument waived.

4To the extent that Noel may have desired us to consider affirmative defenses and counterclaims beyond the alter ego/breach of fiduciary duty claim, we decline to do so. Noel did not argue in his opening brief, nor his reply brief, that he could meet the requirements of the common law D’Oench

doctrine with respect to additional counterclaims and other defenses originally raised in his answer. Thus, he has waived those issues on appeal. See, e.g. , Mhoon , 31 F.3d at 984 n.7 (finding waiver when defendant fails to raise issue in opening brief). - 12 - We have previously held that “the 1989 statute’s extension to the FDIC as receiver of section 1823(e)’s provisions . . . does not apply retroactively.” Oklahoma Radio Assocs. v. FDIC , 987 F.2d 685, 690 (10th Cir. 1993). Because the conduct of the parties and the agreements at is sue here took place prior to 1989, the district court erred in applying § 1823(e ) to this case. Nevertheless, we may affirm the district court’s grant of summary ju dgment if § 1823(e)’s common law counterpart, the D’Oench doctrine, bars defendant’s claim. 3 On appeal, Noel argues that Western Gulf, as an alt er ego of Mile High, breached the fiduciary duties articulated in Univer sity Court’s partnership agreement. 4 He asserts that the records of Western Gulf conta ined the partnership agreement and other documents sufficient to preclud e the D’Oenchdoctrine from barring his breach of fiduciary duty claim. He als o argues that the FDIC cannot- 13 -

assert the D’Oenchdoctrine because Western Gulf was acting under an operating agreement with RTC when Western Gulf breached the p artnership agreement. The federal common law D’Oench doctrine, first set forth by the Supreme Court in D’Oench, Duhme & Co. v. FDIC , 315 U.S. 447 (1942), “prohibits claims based upon agreements which are not properly reflec ted in the official books or records of a failed bank or thrift.” Young v. FDIC , 103 F.3d 1180, 1187 (4th Cir.) (internal quotation marks omitted), cert deni ed , 118 S. Ct. 329 (1997). In D’Oench , the FDIC sued the maker of a demand note payable to Bellville Bank and Trust Company, a failed institution. The makerdefended against the claim by presenting receipts for the notes which indicated a n agreement between the maker and bank that the bank would not call the notes forrepayment. In concluding that the maker could not raise a “secret” agreement with the bank to defend against the FDIC’s suit, the Court recognized a “federal policy to protect [the FDIC] and the public funds which it administers against misrepres entations as to the securities or other assets in the portfolios of the banks which [ it] insures or to which it makes loans.” D’Oench , 315 U.S. at 457. Therefore, the Supreme Court st ated: The test [for the doctrine’s applicability] is whet her the note was designed to deceive the creditors or the public aut hority[,] or would tend to have that effect. It would be sufficient i n this type of case that the maker lent himself to a scheme or arrangem ent whereby the banking authority on which respondent relied in ins uring the bank was or was likely to be misled. D’Oench , 315 U.S. at 460; accord Oklahoma Radio Assocs. , 987 F.2d at 691.5 We recognize that several courts, relying on FIRREA’s enactment and/or the Supreme

Court’s opinions in O’Melveny & Myers v. FDIC , 512 U.S. 79 (1994), and Atherton v. FDIC , 117 S. Ct. 666 (1997), have found that the D’Oench common law doctrine no longer applies to the FDIC in its receivership capacity. SeeLedo Fin. Corp. v. Summers , 122 F.3d 825 (9th Cir. 1997); DiVall Insured Income Fund Ltd. Partnership v. Boatmen’s First Nat’l Bank of Kansas City , 69 F.3d 1398 (8th Cir. 1995); Murphy v. FDIC , 61 F.3d 1995. Because Noel waived this argument, we do not address the issue and assume for the purposes of this case only the applicability of the common law D’Oench doctrine. - 14 - Since 1942, federal courts have expanded the common law doctrine beyond the narrow facts of D’Oench , applying it, for example, to the FDIC as receiver and to other federal banking agencies. 5 See, e.g. , Castleglen, Inc. v. Resolution Trust Corp. , 984 F.2d 1571, 1576 (10th Cir. 1993); Motorcity o f Jacksonville, Ltd. v. Southeast Bank , 83 F.3d 1317, 1325 (11th Cir. 1996) (en banc) (ci ting cases), vacated byHess v. FDIC , 519 U.S. 1087 (1997). While the purpose underlying the D’Oenchdoctrine, to “permit regulators to accurately appr aise the assets of savings institutions by allowing the regu lators to rely on the assets’ face value,” Castleglen , 984 F.2d at 1577, has remained constant during it s evolution, “its focus has shifted from the fraudulent, illegal , or secret character of the debtor’s acts to the effect the acts have on the re gulatory agency’s ability to evaluate quickly and accurately a savings instituti on’s assets,” id. at 1576. Bank examiners must often conduct these evaluations and decide the course of the bank’s fate overnight. See Langley v. FDIC , 484 U.S. 86, 91-92 (1987). The design of the D’Oenchdoctrine thus “favors the interests of depositors and creditors of a failed bank, who cannot protect them selves from secret agreements,- 15 -

over the interests of borrowers, who can.” Bell & Murphy & Assocs. v. Interfirst Bank Gateway, N.A. , 894 F.2d 750, 754 (5th Cir. 1990); see also Motorcity , 83 F.3d at 1325. Given the overarching purposes behind the doctrine, courts have consistently held that inferences that an examiner could feasibly draw from a failed institution’s written records are insufficie nt to preclude the operation of D’Oench . See Resolution Trust Corp. v. Allen , 16 F.3d 568, 575 (4th Cir. 1994) (“Enforcement of agreements which must be inferred from written recorded agreements is forbidden under D’Oench Duhme; explicitwritten documentation is required.” (emphasis added)); Community Bank of the Ozarks v. FDIC , 984 F.2d 254, 257 (8th Cir. 1993) (“Neither section 1823(e) nor D’Oench is satisfied by inferences drawn from a bank’s records.”); Clay v. FDIC , 934 F.2d 69, 72 (5th Cir. 1991) (asserting that “where bank documents on ly raise an ‘inference’ of a secret agreement, such an inference is insufficientto support a judgment where the FDIC is one of the parties involved in the banktransfer”). Indeed, this circuit has indicated that suggestive evidence arising from the bank’s written records is insufficient to bar the operation of D’Oench . See Castleglen , 984 F.2d at 1578- 79. In short, the FDIC has no duty to scour a fail ed institution’s documents for inferences and hidden duties supporting defenses orcounterclaims that might prevent the FDIC from collecting the full value of an otherwise facially valid- 16 -

instrument. In this case, Noel contends that the written record s of Western Gulf contain information upon which he bases his alter ego/breac h of fiduciary duty claim. In order for Noel to prevail, we must find a genuine i ssue of material fact as to whether the records would indicate to a bank examin er that Western Gulf had duties and liabilities arising out of the University Courts’ partnership agreement. In his response to FDIC’s renewed motion for summary judgment, Noel argued that documents from the permanent loan file show th at Western Gulf (1) closed Mile High in 1985; (2) took over the property throu gh in substance foreclosure; (3) did not maintain Mile High’s corporate existenc e; (4) listed the University Court’s property in the Board of Directors’ minutes and books as real estate owned; and (5) had been advised in an official meet ing that Noel may have claims against it. He asserts, “Each of these points may well satisfy the requirements of D’Oench . Each was sufficient to put the regulators on not ice of Noel’s claims. The totality of the records is sufficient to preven t summary judgment.” Appellant’s Reply Br. at 15. However, the logical deductions which a bank examin er would have had to make to conclude that the FDIC could not recover th e full value of Noel’s facially valid note due to his alter ego/breach of fiduciary duty claim are far from straightforward. The bank examiner would, at a min imum, have to determine that- 17 -

Western Gulf acted as an alter ego to Mile High and therefore had continuing duties stemming from the University Courts’ partner ship agreement. The written documentation to which Noel points to advance such a determination is scattered throughout various letters, ledgers, minutes, and o ther records. In fact, nowhere in the record can we find one written agreement ind icating any possibility of Western Gulf’s liability under the partnership agre ement. The agreement itself does not reference Western Gulf, and Noel points to no document which clearly shows that Western Gulf, through Mile High, had a c ontinuing involvement in University Courts. The documents to which Noel refers, at best, make o nly scattered references to University Courts. The “Real Estate Owned” lists and summaries prepared monthly as part of Western Gulf’s financia l statements indicate that Western Gulf owned University Courts. Other record s show the status of the loan to Mile High and Noel. The Board of Directors’ min utes from November 13, 1986, indicate that Mile High was inactive, but notdissolved. Minutes from December 15, 1988, indicate that Mile High existed at that time but that it would automatically dissolve at the end of the year if Co lorado tax returns were not filed. The minutes also state: Mr. Noel is a 50% partner [in University Courts], h owever we have not heard anything from him in years. Mr. White st ated that apparently foreclosure has not occured [sic] previo usly due to concern that Mr. Noel could have legal causes of ac tion against- 18 -

[University Courts]. Mr. White went on to state th at he was of the opinion that Western Gulf should automatically let Mile High Mortgage dissolve, then Western Gulf could start fo reclosure proceedings. Appellant’s App., Vol. II, tab E4. However, none o f these records clearly suggest that Mile High was actually dissolved or that Weste rn Gulf acted as an alter ego to Mile High or had an obligation under the Univers ity Courts’ partnership agreement. Furthermore, we have carefully reviewed the other documents in the record, and find that none would sufficiently put t he FDIC on notice that Noel had a breach of fiduciary duty claim against Wester n Gulf because it acted as an alter ego to Mile High. In any event, the FDIC simply had no duty to ferret out and piece together, from vague, scattered reference s of various unrelated writings, the information necessary to draw such conclusions. Indeed, even when the documents were neatly presented to us in the record , we had difficulty piecing together a legal theory suggesting that Western Gul f could not recover the full value of Noel’s facially valid note because he was entitled to a set-off. Placing an affirmative duty on bank regulators to engage in a similarly tortured analysis runs counter to the purpose of the D’Oench doctrine – to allow examiners to accurately and quickly appraise a bank’s assets. T herefore, we hold, as a matter of law, that this scattered evidence is insufficien t to prevent the D’Oench doctrine’s application. See Allen , 16 F.3d at 575; Clay , 934 F.2d at 72-73. Finally, Noel asserts that the D’Oench doctrine does not bar his alter- 19 -

ego/breach of fiduciary duty claim because federal regulators instigated, or at least condoned, Western Gulf’s breaches of the part nership agreement. The Federal Savings and Loan Insurance Corporation (“FS LIC”) entered into an operating agreement with Western Gulf in February 1 985. Shortly after entering the operating agreement, Western Gulf classified th e University Court’s property as real estate it owned, and it ceased the operatio ns of Mile High, the general partner to University Courts. Noel deduces, “In ot her words, it appears that the action which constituted a breach of the general pa rtner’s duties was taken at the direction of the federal regulatory authority.” Supplemental Submission in Opposition to Plaintiff’s Renewed Motion for Summary Judgment, at 2. He further argues that an October 8, 1986 letter from Western Gulf to the Federal Home Loan Bank of Dallas shows that Western Gulf ac ted according to a federal regulator’s instructions. That letter touted, as acost-saving measure, the closure of “the Western Gulf Service Corporation loan origi nation office in Denver.” Appellant’s Supp. App. tab 5. Noel claims this obv iously references Mile High as it was the only office maintained by Western Gulf i n Denver. Finally, at a board meeting during the time Western Gulf operated underthe agreement with FSLIC, the board discussed Mile High. The board decided t hat despite Mile High’s present inactivity, it might have a future need forthe corporation. Noel acknowledges the board conducted no discussion rega rding Mile High’s status as- 20 -

the general partner of University Courts or the fid uciary obligations it may have owed Noel. Noel thus argues that because Western Gulf entered into an operating agreement with FSLIC and the actions giving rise to Noel’s claims occurred while the operating agreement was in effect, we can inferthat Western Gulf acted at the behest of federal regulators in allegedly breaching the partnership agreement between Mile High and Noel. Under this theory, sum mary judgment is inappropriate because “[i]t would be manifestly unj ust to allow FDIC to invoke D’Oenchto shield itself from the actions of its predecess ors in interest.” Supplemental Submission in Opposition to Plaintiff’ s Renewed Motion for Summary Judgment, at 5. The language of the operating agreement, however, r efutes Noel’s implication that federal regulators instigated or c ondoned Western Gulf’s alleged breaches of fiduciary duty. It states, “Nothing in this paragraph shall require the Association to breach or abrogate any legally bindi ng written contractual commitments outstanding on or before the effective date of this Agreement.” Appellant’s Supp. App. tab 5. Noel relies solely o n the fact that Western Gulf had entered into this operating agreement with FSLI C to show FSLIC complicity in the alleged breaches. We refuse to impute Weste rn Gulf’s actions to FSLIC when the language of its agreement with Western Gul f explicitly states that- 21 -

Western Gulf should not breach any agreements in an effort to comply with the regulations. Moreover, we cannot impute to FSLIC a ny responsibility for the closure of Mile High. The cited letter does not ob viously reference Mile High. It refers only to a loan origination office in Denver. This is insufficient to put FSLIC on notice that the reference pertained to Mil e High. Finally, even though the Western Gulf’s board discussed the inactivity o f Mile High at a meeting during the period it acted under the FSLIC operatin g agreement, the board did not mention that it had any continuing liability under the University Courts’ partnership agreement. Therefore, even assuming th at the FDIC could not assert the D’Oenchdoctrine if it were instrumentally involved in the actions of the financial institution, we find no evidence here that the FDIC instructed Western Gulf to breach any fiduciary duties that may have b een owed to Noel. Hence, Noel’s final argument also fails. Accordingly, we AFFIRM the district court’s grant o f summary judgment.