* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designati on.

UNITED STATES COURT OF APPEALS Filed 1/2/97 FOR THE TENTH CIRCUIT

SHAFFER CLARK LEASING COMPANY, an Oklahoma general partnership, Plaintiff-Appellant,

v. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Heartland Federal Savings & Loan Association, Defendant-Appellee. No. 96-6105 (D.C. No. CIV-95-754-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Shaffer-Clark Leasing Company (Shaffer-Clark) appea ls from the district court’s order granting summary judgment against it in favor of the Federal Deposit Insurance Corporation (FDIC) on Shaffer-Clark’s complaint for declaratory judgment. We affirm. Shaffer-Clark acquired rights to a property in Ponc a City, Oklahoma, which it intended to use for the construction of a bank b uilding for Frontier Federal Savings and Loan Association (Frontier Federal). S haffer-Clark and Frontier Federal agreed that Frontier Federal would loan Sha ffer-Clark the necessary funds for construction of the bank building and would the n lease the building from Shaffer-Clark. In March 1981, Frontier Federal ent ered into an agreement to lease the building from Shaffer-Clark for a twenty- five year period. The lease payments were set at the amount needed for Shaffer- Clark to retire its costs, including indebtedness on a prospective constructio n loan. On June 16, 1981, Shaffer-Clark executed a promissory note for $400,0 00 in favor of Frontier Federal, representing the amount due on the constru ction loan. It also executed a mortgage and assignment of lease in favor of Fronti er Federal.-3-

In August 1988, the Federal Savings and Loan Insurance Corporation (FSLIC) determined that Frontier Federal was insolv ent. FSLIC was appointed receiver for Frontier Federal. It transferred the promissory note to Heartland Federal Savings and Loan Association (Heartland). FSLIC also notified Shaffer-Clark that it was repudiating the lease agr eement. Heartland subsequently went into receivership. Its receiver, the FDIC, so ld substantially all of Heartland’s assets to Commercial Federal Bank (Comm ercial). FDIC retained the promissory note, however, and notified Shaffer-Clark to make all future payments
to FDIC. Commercial now occupied the bank building. Since F SLIC had repudiated the lease, Shaffer-Clark was obligated to renegotiate lease payments with Commercial. The lease payments Commercial made und er the new agreement were insufficient to cover the payments due on the promissory note. Shaffer-Clark defaulted on the promissory note. Itthen filed this declaratory judgment action against FDIC, contending that the l ease agreement and the note were all part of the same transaction, that when FS LIC opted to discontinue the lease agreement, it also repudiated the promissory note, and that Shaffer-Clark was thereby released from its obligations under the note. FDIC counterclaimed to enforce the note.-4-

The district court granted summary judgment for FDI C, and entered judgment against Shaffer-Clark on the note. It fou nd that in order to prove that the lease was linked to the note, and to thereby di minish the FDIC’s interest in the note, Shaffer-Clark had to prove that the lease sat isfied the requirements of 12 U.S.C. § 1823(e), or some exception thereto. It fo und that the lease agreement had not been executed contemporaneously with the no te, and could therefore not satisfy these requirements. The district court als o rejected Shaffer-Clark’s argument, based on Howell v. Continental Credit Corp. , 655 F.2d 743 (7th Cir. 1981), that since the FDIC was seeking to recover o n the very obligation which Frontier Federal had breached, § 1823(e) did not ap ply. It reasoned that there was no recitation in the lease, note or accompanying do cuments of a linked, bilateral obligation between payments on the note and payment s on the lease. “We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court unde r Fed. R. Civ. P. 56(c).” Ingels v. Thiokol Corp. , 42 F.3d 616, 620 (10th Cir. 1994). Summary judgm ent is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We have carefully reviewed the district court’s ord er, the record and the applicable law. We conclude that summary judgment should be affirmed, for substantially the same reasons stated in the distri ct court’s order of March 1,-5-

1996. The judgment of the United States District C ourt for the Western District of Oklahoma is therefore AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge