A little over a month later, the Oklahoma department of securities opened an 8 describing how the use of life-settlement contracts as loan collateral contributed to a were not properly memorialized in the bank's records as required by 12 u.s.c. dodson farms, LLCs"signed separate $2.5 million notes; the fourth, keith dodson, did derryberry & naifeh, llp, with him on the briefs), Oklahoma city, Oklahoma, for borrowers made their motion under. publish brief's argument on the rule 56(d) issue. such an undeveloped assertion does not suffice 3 title, either as security for a loan or by purchase or as receiver of any 2011, to collect on the promissory notes. borrowers did not dispute that they had not business. three of the borrowers' mark arciero, william newland, and thompson- we conclude that the district court did not abuse its discretion in denying any agreement can limit the liability of a borrower or guarantor to the fdic: the applicable law in the case at hand.' valley forge ins. co. v. health care mgmt. 5 entered after a trial or on a motion for summary judgment.
See id. ('of course, in this party raises an affirmative defense based on an agreement with the bank, it has the burden evidence was not merely cumulative or impeaching; (4) the newly governed their transactions with the bank and that they could bring claims under those granted summary judgment before allowing them to conduct discovery, and (2) that the borrowers was irrelevant because § 1823(e) precludes the use of oral commitments as tenth circuit had been told by doughty that they would have no personal liability and that the loans availability of the theory. before the fdic moved for summary judgment, borrowers of securities opened an investigation into the bank, its affiliate altus, and doughty for newly discovered evidence under either fed. r. civ. p. 59(e) or 60(b)(2). we have held result,â devon energy prod. co., l.p. v. mosaic potash carlsbad, inc., 693 f.3d 1195, would be fully collateralized. they also requested a deferral of the ruling or denial of previously known of (1) the credit memorandum prepared by doughty and (2) an fdic community bank's failure. see id. the court also said that because borrowers already borrowers appeal on two grounds: (1) that the district court should not have (d.c. no. 5:11-cv-00686-m) (c) was approved by the board of directors of the depository discovered evidence is material; and (5) . . . a new trial with the newly the district court denied the motion because the newly discovered evidence was âmerely the above requirements. see somerlott v. cherokee nation distribs., inc., 686 f.3d 1144, liability, borrowers would have to produce (1) a written agreement executed by the bank marks omitted)). but we have also recognized in the rule 59(e) context that the newly 7 relief. and 60(b)(2). see 11 charles a. wright, et al., federal practice and procedure § 2859, at was diligent in discovering the new evidence; (3) the newly discovered could have raisedâ"but did not raiseâ"before. newly discovered evidence must be admissible evidence to support relief under discovered evidence of securities fraud by the bank. we affirm the judgment below. at 117 (ânewly discovered evidence must be admissible and probably effective to change discovered evidence that could support an affirmative defense not barred by § 1823(e). summary-judgment] motion.â aplt. app., vol. ii at 481. it noted that borrowers had the implied covenant of good faith and fair dealing; that the fdic had impaired 31 u.s.c.). 12 used as collateral,â id. at 270. borrowers claim that the credit memorandum and (b) was executed by the depository institution and any person (fdic) took over as receiver and filed suit to collect on the loans. this appeal concerns representations to them constituted fraudulent inducement. they also brought âevidenceâ was not admissible evidence and related to a legal theory that borrowers 2007) (â[w]e routinely have declined to consider arguments that are not raised, or are quotation marks omitted). the required showing is the same whether judgment was district court should have set aside the summary judgment because they presented newly alleging that the bankâs ceo had assured them that they would not be personally liable contemporaneously with the acquisition of the asset by the depository franco, 446 f.3d 1036, 1042 (10th cir. 2006) (brackets, citation, and internal quotation interpreting this provision. see langley v. fdic, 484 u.s. 86, 92â"93 (1987). when a a. section 1823(e) § 1823(e), a provision of the financial institutions reform, recovery, and enforcement provided borrowers and the court with the only documents necessary to rule on the years or older, with life expectancies of 3 to 12 years. computerized thermal imaging, inc. v. bloomberg, l.p., 312 f.3d 1292, 1296 n.3 (10th in 2008 the bankâs ceo, paul doughty, asked borrowers and others to take out 12 u.s.c. § 1823(e).â aplt. br. at 18. but the brief does not go on to explain what that life-settlement contracts allow an investor to purchase a third partyâs life-insurance reconsideration based on newly discovered evidence. a party can seek relief based on borrowers devote a section of their brief to the proposition that summary iii. conclusion 13 issue, however, because evidence of the investigation does not satisfy the requirements institution or its loan committee, which approval shall be reflected in the borrowersâ motion to set aside the summary judgment because of alleged newly for the western district of Oklahoma credibleâ (internal quotation marks omitted)); 11 charles a. wright, et al., supra, § 2808, claiming an adverse interest thereunder, including the obligor, and likely would provide evidence which would ultimately bring this case outside of case the plaintiffs sought relief from an order dismissing the case, not from the result of a had a credit memorandum describing the life-settlement contracts associated with their v. with the loans in this case. borrowers moved for reconsideration of the order granting fiduciary duties; that doughty failed to exercise reasonable care; that the bank breached * policy. the investor becomes responsible for premium payments and collects benefits diligent yet unsuccessful effort to discover the evidence.â (brackets and internal quotation department, and the fdic was appointed as receiver. the fdic filed suit on june 16, âcould have, and perhaps should have, raised the issue of whether the loans were tenth circuit trialâ"but the required showing under rule 60(b)(2) remains the same.â). we have often of showing that the agreement meets the requirements of § 1823(e)(1). see oldenburg, on july 31, 2009, the bank was closed by the Oklahoma state banking of federal securities laws are subject to the requirements of § 1823(e)); dendinger v. first minutes of said board or committee, and (a) is in writing, that the district court did not abuse its discretion in denying the request for rule 56(d) 12 u.s.c. § 1823(e)(1). the supreme court has read the word agreement broadly in ii. discussion mountain aerospace so it could make payments on its loans from the bank and stay in appellate court will not consider an issue raised for the first time on appeal.â) we hold Oklahoma city, Oklahoma, with him on the brief), for plaintiff - counter-defendant â" and guarantee large loans whose principal purpose was to invest money in quartz see fdic v. giammettei, 34 f.3d 51, 58 (2d cir. 1994) (defenses based on the violation defenses to fdic claims. borrowers nevertheless submitted affidavits saying that they farms, llc; keith dodson; bank) had sold unregistered securities, including the life-settlement contracts associated and the funds it administers,â id., strict statutory requirements must be satisfied before (1) the evidence was newly discovered since the trial; (2) the moving party delay, saying that further discovery would not be helpful because the fdic had already used to purchase life-settlement contracts that would serve as collateral for the loans.1 1213 (10th cir. 2012) (internal quotation marks omitted), and it is well-settled that the dronsejko v. thornton, 632 f.3d 658, 670 (10th cir. 2011) (brackets and internal the company. when the bank failed in 2009, the federal deposit insurance corporation natâl corp., 16 f.3d 99, 102 (5th cir. 1994) (â[a]n oral misrepresentation by a lender to affidavit that identifies âthe probable facts not available and what steps have been taken act of 1989, pub. l. no. 101-73, 103 stat. 183 (codified in scattered sections of 12, 18 & publication that warned of investor risks inherent in life-settlement contracts, discussed hartz, circuit judge. defendants-counter-claimants- controlled by § 1823(e); they do not point to any pleadeding where they raised such a claim, need say no more on this issue. not been administratively exhausted, (2) borrowers had conceded their impairment-of- the district court then granted summary judgment. it held that borrowers had discovery âexceed[ed] the bounds of the rationally available choices given the facts and several of our fellow circuits have rejected such attempts to get around § 1823(e). borrowers argue that the district court erred when it denied their motion under considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to agreementâ" discovered evidence. official record of the depository institution. december 20, 2013 doughty prepared a credit memorandum that accompanied each promissory note. not take out his own loan but guaranteed the thompson-dodson farms note. moschovidis, gablegotwals, tulsa, Oklahoma, and leslie l. lynch, gablegotwals, before hartz, oâbrien, and tymkovich, circuit judges. mark arciero; william evidence might be or how the evidence would create a defense not governed by insured depository institution, shall be valid against the [fdic] unless such handicapped in litigating such claims because its personnel lack first-hand knowledge of united states court of appeals in an effort to save quartz mountain aerospace, some of its investors and the appeal is abated as to mark arciero and gerald ray smith because they are in continued . . . judgment on their affirmative defenses was improper. but their only argument against institution, gerald ray smith,* 10 borrowers have not identified any documents that discovery could uncover that federal deposit insurance fed. r. civ. p. 56(d) to delay ruling on the fdicâs motion for summary judgment until it described where the loan proceeds would go, including that some of the funds would be agreementsâ between the bank and the obligor that are not present on the face of the asset [borrowers] may not raise this issue for the first time in a motion for reconsideration.â however, is not admissible evidence of alleged misconduct. the purpose of an laws. but learning of a new legal theory is not the discovery of new evidence. moreover, plaintiff-counter-defendant-appellee, summary judgment must be set aside. because we reject their rule 56(d) argument, we borrowers raised affirmative defenses to the fdicâs claims and brought counterclaims, itself.â fdic v. oldenburg, 34 f.3d 1529, 1550 (10th cir. 1994). the fdic could be borrowersâ counterclaims because (1) the claims based on prereceivership conduct had evidence was available at the time of the decision being challenged, that counsel made a b. additional discovery directors took out large loans from first state bank of altus (the bank) for the benefit of 1 borrowers argue that the district court erred in denying their motion for would establish a defense satisfying § 1823(e). to prove an agreement limiting their bankruptcy proceedings. defendants â" counter-claimants â" appellants. argument as merely stating that if we agree with them on the rule 56(d) motion, the directors, officers, and employeesâ"often have nothing personally at stake while their evidence, the movant must show either that the evidence is newly discovered or if the borrowersâ alleged newly discovered evidence is that the Oklahoma department elisabeth a. shumaker 4 c. newly discovered evidence rule 59 or 60(b)(2). see goldstein v. mci worldcom, 340 f.3d 238, 257 (5th cir. 2003) newland; thompson-dodson corporation, as receiver of first i. background appellee. we review the district courtâs decision under either rule for abuse of discretion. see the result of the former trial.â (footnote omitted)). the existence of an investigation, when the fdic tries to collect on promissory notes acquired from a failed bank, it [fdic] in any asset acquired by it under this section or section 1821 of this the relevant events, and those who would have such knowledgeâ"the failed bankâs mut. ins. co., 610 f.3d 1235, 1239 (10th cir. 2010) (âwe do not address arguments first Oklahoma granted summary judgment for the fdic because the ceoâs alleged promises discovered evidence âmust be of such a nature as would probably produce a different requirement does not rest on agreements subject to § 1823(e)). we need not reach that discovery could be conducted. rule 56(d) provides that â[i]f a nonmovant shows by personal liability or financial risk. a borrower, whether in violation of federal securities law or not, constitutes an unwritten december 2010, rule 56(f)). the party requesting additional discovery must present an to preserve an issue for review. see bronson v. swensen, 500 f.3d 1099, 1104 (10th cir. borrowers did not support their request for discovery with any showing that discovery expressed the requirements for relief under rule 59(e) as including only the first two of âbreached their obligations under the promissory notesâ and that all their affirmative 1153 (10th cir. 2012) (âwhere a party seeks rule 59(e) relief to submit additional âagreementâ that does not bind the fdic under [§ 1823(e)].â); fdic v. investors assocs. influenced and corrupt organizations act (rico), 18 u.s.c. §§ 1961â'1968. id. at 482. united states court of appeals no agreement which tends to diminish or defeat the interest of the § 1823(e). indeed, the quoted sentence is the only reference to § 1823(e) in the opening the memorandum stated that because of those contracts the âproposed loan can be repaid regularly confronts defenses that âinvolve claims of misrepresentation or âsecret inadequately presented, in an appellantâs opening brief.â). and the slightly more to believe that such an agreement existed. and borrowers do not claim that they are that relief from judgment under rule 60(b)(2) is available if: 11 settlement contracts, which mentioned the applicability of federal securities laws. securities violations rather than agreements with the bank. cumulative of other evidence that [borrowers] had at the time of the briefing on [the marks omitted). we review a district courtâs denial of a rule 56(d) motion for abuse of summary judgment on the theory that the departmentâs investigation was newly we affirm the judgment below. 1168â"69 (1st cir. 1996) (claim based on violation of state securities-law registration borrowersâ collateral; and that the bank, doughty, and the fdic violated the racketeer against the fdic that would not be barred by § 1823(e) because they are based on unregistered securities and, thus, were not agreements and were not subject to § 1823[,] discovered evidence would probably produce a different result. summary judgment to allow for discovery. the district court rejected the request for rule 56(d) request in district court with a claim that they may have a defense not loans and an fdic publication that included an article listing the dangers of life- collateral claim by not challenging the fdicâs argument that Oklahoma does not the summary judgment is that their rule 56(d) motion was denied. we understand the when the insured dies. policies are generally purchased from individuals who are 65 387 (2012) (âthe same standard applies to motions on the ground of newly discovered discretion. see id. we will not reverse unless the district courtâs decision to deny investigation into whether the bank, doughty, or altus ventures, llc (an affiliate of the partners, ltd., 616 f.3d 1086, 1096 (10th cir. 2010) (internal quotation marks omitted). affidavit or declaration that, for specified reasons, it cannot present facts essential to and one of the borrowers and (2) bank minutes approving the agreement. see 18 u.s.c. appellants. requirements for newly discovered evidence are essentially the same under rule 59(e) 6 todd taylor, taylor & strubhar, p.c., (larry d. derryberry and rachel r. shephard, communications, inc. v. commâr, 104 f.3d 1229, 1232 (10th cir. 1997) (âgenerally, an the fdic moved for summary judgment, arguing that what doughty told developed argument in borrowersâ reply brief comes too late. see cahill v. am. family loyalties may be to the bank customers rather than to the fdic. â[t]o protect the fdic him to rebut the movantâs allegations of no genuine issue of material fact.â trask v. could lead to evidence that would satisfy the requirements of § 1823(e); and their new take discovery; or (3) issue any other appropriate order.â fed. r. civ. p. 56(d) (until (d) has been, continuously, from the time of its execution, an clerk of court x, ltd., 775 f.2d 152, 156 (6th cir. 1985). but see adams v. zimmerman, 73 f.3d 1164, with this statutory context in mind, we turn to borrowersâ two issues on appeal. defenses were barred by § 1823(e). aplt. app., vol. ii at 342. it also dismissed state bank of altus, altus, Oklahoma, to obtain these facts. the nonmovant must also explain how additional time will enable 2 selling unregistered securities, including the life-settlement contracts used to secure the loan to borrowers. according to borrowers, this evidence supports claims and defenses the applicability of federal securities laws to such contracts, and included a case study fdicâs motion, such as the bankâs loan files and the minutes of the board of directors. the challenge to those collection efforts by four of those liable on the notes (borrowers). cir. 2002). accordingly, we need not address the partiesâ dispute about which rule counterclaims alleging that the bank committed fraud; that doughty breached his no. 12-6287 missing any bank minutes. speculation cannot support a rule 56(d) motion. (it is âself evidentâ that newly discovered evidence must âbe both admissible and 9 the investigation might be admissible, but borrowers point to no such evidence. at most, for newly discovered evidence. on any of the loans. the united states district court for the western district of as noted by the district court, borrowers had previously been alerted to the possible in full without the sale of outside assets,â aplt. app., vol. ii at 268, and that âthe credit risk of advances under this line is fully assured by the atomized life insurance policies § 1823(e)(1). but no borrower attested to signing such an agreement or gave any reason 34 f.3d at 1551. evidence whether they are made under rule 59 or rule 60(b)(2).â (footnote omitted)). filed david l. bryant, gablegotwals, tulsa, Oklahoma, (john henry rule and barabara m. doughtyâs assurances caused them to believe that the loans would not expose them to any the opening of an investigation alerted borrowers to the possibility that securities laws raised in [a] reply brief.â) we also note that borrowers apparently did not support their recognize such a claim, and (3) federal agencies are not subject to civil rico liability. investigation is to determine whether misconduct has occurred. evidence uncovered by repaid the loans, but asserted that they had no obligation to do so because doughtyâs appeal from the united states district court nor have we found any discussion of such a claim in the rule 56(d) pleadedings. see tele- borrowers state in their opening brief that they have identified people who âcould justify its opposition [to a motion for summary judgment], the court may: (1) defer
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