
USCA1 Opinion

	




          October 7,1992                              _________________________          No. 92-1344                        FEDERAL DEPOSIT INSURANCE CORPORATION,                                 Plaintiff, Appellee,                                          v.                                PRITAM SINGH, ET AL.,                               Defendants, Appellants.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                            and Skinner,* District Judge.                                          ______________                              _________________________               Elizabeth G. Stouder, with  whom John S. Whitman, Richardson               ____________________             _______________  __________          &  Troubh, Allen J. Hrycay, and Reef, Jordan, Hrycay & Sears were          _________  _______________      ____________________________          on brief, for appellants.               Thomas A. Cox, with whom Mary Ann E. Rousseau and Friedman &               _____________            ____________________     __________          Babcock were on brief, for appellee.          _______                              _________________________                              _________________________          _______________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit Judge.  In this case, the district court                    SELYA, Circuit Judge.                           _____________          granted  summary judgment on a  guaranty in favor  of the Federal          Deposit Insurance Corporation  (FDIC).1   The guarantors  appeal.          We affirm  the judgment below  because, as a  matter of law,  the          guaranty  was free of ambiguity and the plaintiff was entitled to          summary  enforcement.  See, e.g., Garside v. Osco Drug, Inc., 895                                 ___  ____  _______    _______________          F.2d  46, 48-49  (1st Cir.  1990) (appellate  court may  affirm a          grant of summary judgment  on any independently sufficient ground          reflected in the record).          I.  BACKGROUND          I.  BACKGROUND                    On December  23,  1985, Bandon  Associates,  a  general          partnership, executed and delivered a promissory note   (the 1985          Note) in the principal amount of $1,050,000 to Patriot Bank, N.A.          As collateral, Bandon  gave the  bank a mortgage  on property  it          held in  Maine.  Both  the 1985 Note  and the mortgage  deed were          signed on Bandon's behalf by the four appellants as Bandon's sole          general  partners.  The  quartet also executed  and delivered, on          the same date, an  unconditional guaranty of Bandon's obligations          (the  Guaranty).   By  the terms  of  that document,  the signers          "jointly and severally  . . . unconditionally  guarantee[d]"  all          liabilities of Bandon Associates to Patriot Bank "now existing or          hereafter arising,  regardless  of  how they  arise  or  by  what                                        ____________________               1By  statute, cases  in  which  the  FDIC  is  a  party  are          ordinarily deemed to "arise under" the laws of the United States.          See  12 U.S.C.     1819(b)(2)(A) (Supp.  II  1990).   Hence,  the          ___          district court  possessed federal question  jurisdiction pursuant          to 28  U.S.C.     1331  (1988).    In  turn,  we  have  appellate          jurisdiction under 28 U.S.C.   1291 (1988).                                          2          agreement  or instruments  they may be  evidenced .  . .  ."  The          Guaranty did not refer specifically to the 1985 Note.                    On  April  6,  1987,  Bandon  entered  into  a  written          agreement  (the Agreement) with Patriot  Bank to revise the terms          of  the 1985 loan.   The arrangement involved  substituting a new          note (the 1987 Note) for the old note.  The 1987  Note was in the          same  face amount,  but provided  for a  fixed interest  rate, an          amortization schedule, and  a prepayment penalty.  It  was signed          by the four appellants on Bandon's behalf and "individually."  It          also contained an assurance  that the Bank would "look  solely to          its  [c]ollateral  for  satisfaction  of  the   [o]bligations  of          Borrower or under any documents or undertaking given  as security          herefor and not to the personal assets of any partner, General or          Limited."   At the same time, Bandon and Patriot jointly executed          an emendatory instrument (the  Amendment) which tied the security          instruments into the 1987 Note, reaffirmed them, and stated that:          "The Mortgage,  the Assignment,  the Guaranty, and  the Financing          Statement . . . shall remain in full force and effect and all the          terms thereof  are hereby ratified and confirmed,  by the parties          hereto."  Although Bandon and  its principals were represented by          counsel,  the bank's  lawyers  were the  chief architects  of the          documents.                    Soon thereafter,  Patriot Bank merged with  Bank of New          England  (BNE).   On  January 6,  1991,  the Comptroller  of  the          Currency determined that BNE was insolvent and appointed the FDIC          as receiver.   The New  Bank of New  England (NBNE) was  created,                                          3          chartered,  and duly designated as  a bridge bank.   The lender's          rights material to the Patriot/Bandon transactions were assigned,          in  relatively  rapid  succession,   from  Patriot  to  BNE  and,          eventually, to NBNE.                      Meanwhile,  Bandon  was  unable  to  meet  its  payment          obligations  under the  1987 Note.   On  February 13,  1991, NBNE          commenced  a civil action to foreclose the mortgage in the United          States  District   Court  for   the  District  of   Maine.     It          simultaneously  brought  an  action against  the  appellants,  as          individuals, alleging  that each  of  them was  liable under  the          Guaranty for Bandon's default.  While the cases were pending, the          FDIC  dissolved  NBNE and,  as  receiver,  became the  substitute          plaintiff in both actions.2                    In  time,  the  district   court  granted  the   FDIC's          dispositive motion in the  guaranty action, invoking the D'Oench,                                                                   ________          Duhme doctrine, see  D'Oench, Duhme & Co. v. FDIC,  315 U.S. 447,          _____           ___  ____________________    ____          460  (1942), and the statute that largely codifies the doctrine.3                                        ____________________               2The district court thereafter granted the FDIC's motion for          summary  judgment  in the  foreclosure  action.   Bandon  has not          appealed from that order.  We need not dwell upon it.               3The statute provides in pertinent part:                    No  agreement  which  tends  to  diminish  or                    defeat  the interest  of  the  [FDIC] in  any                    asset acquired  by it under  this section  or                    section   1821  of  this   title,  either  as                    security for a loan  . . . or as  receiver of                    any insured depository institution,  shall be                    valid   against   the   [FDIC]  unless   such                    agreement                           (1) is in writing,                                          4          This  doctrine   defines  the  limited  conditions   under  which          agreements may validly diminish or  defeat the FDIC's interest in          an asset it acquires.          II.  A THUMBNAIL SKETCH          II.  A THUMBNAIL SKETCH                    Appellants theorize that the non-recourse  provision in          the  1987  Note  conflicts   with  both  the  Guaranty  and   the          reaffirmation of  the Guaranty;  and that, under  applicable law,          the conflict  should be resolved in  favor of the 1987  Note.  In          their   view,  the   judgment  below   should  be   reversed  or,          alternatively, vacated and the  case remanded for trial regarding          the effect of the non-recourse provision.4                                        ____________________                         (2) was executed by  the depository                         institution and any person claiming                         an  adverse   interest  thereunder,                         including        the       obligor,                         contemporaneously      with     the                         acquisition  of  the  asset by  the                         depository institution,                         (3)  was approved  by the  board of                         directors    of    the   depository                         institution or  its loan committee,                         which  approval shall  be reflected                         in  the  minutes of  said  board or                         committee, and                         (4)  has  been, continuously,  from                         the  time  of  its   execution,  an                         official  record of  the depository                         institution.          12 U.S.C.    1823(e) (Supp. II  1990).  We set  forth the current          version, including  the 1989 amendments, see Pub.  L. No. 101-73,                                                   ___          103 Stat. 183, 256 (1989), as those amendments were comparatively          minor and do not impact upon the case before us.               4Appellants'  alternative  argument  seemingly reflects  the          possibility  that, if the instruments are not in direct conflict,          they are at least ambiguous.                                          5                    The yardstick  by which we must measure  the cogency of          appellants' contentions  is not in  doubt.  "Summary  judgment is          appropriate  when the record reflects 'no genuine issue as to any          material fact and . . . the moving party is  entitled to judgment          as a matter of law.'"  Rivera-Muriente v. Agosto-Alicea, 959 F.2d                                 _______________    _____________          349, 351 (1st Cir. 1992) (quoting  Fed. R. Civ. P. 56(c)).  When,          as here,  the district court has cranked up the machinery of Rule          56, and  disposed of a  case on  that basis, appellate  review is          plenary.  See  Allen v. Adage, Inc., ___ F.2d  ___, ___ (1st Cir.                    ___  _____    ___________          1992) [No. 91-2206, slip op. at 8]; Garside, 895 F.2d at 48.                                              _______                    Although a  dispute over the  meaning of a  contract is          often  a dispute about a  material fact, summary  judgment is not          necessarily foreclosed in such a situation.   See Allen, ___ F.2d                                                        ___ _____          at ___ [slip op. at 6].  In some circumstances, "[t]he words of a          contract may  be so clear themselves that reasonable people could          not differ over  their meaning."  Boston Five Cents  Sav. Bank v.                                            ____________________________          Secretary of Dep't of HUD,  768 F.2d 5, 8 (1st Cir.  1985).  This          _________________________          is  such   an  instance:    here,   long-standing  principles  of          Massachusetts contract law  compel us to  conclude that the  non-          recourse  provision in  the 1987  Note neither  trumps the  plain          language of the Guaranty nor creates an ambiguity in the contract          documents.          III.  ANALYSIS          III.  ANALYSIS                    We begin  by reviewing applicable  state law.   We then          apply  that law,  explain how  federal law  is supportive  of the          result that we reach,  and address appellants' remaining counter-                                          6          arguments.                                          A.                                          A.                                          __                    The instruments at issue here state that they are to be          governed  by,  and construed  in  accordance  with,  the  law  of          Massachusetts.   Under Massachusetts law,  when several  writings          evidence  a single  contract or  comprise constituent parts  of a          single  transaction,  they will  be read  together.   See Chelsea                                                                ___ _______          Indus., Inc. v. Florence,  260 N.E.2d 732, 735 (Mass.  1970); see          ____________    ________                                      ___          also Ucello v. Cosentino, 235 N.E.2d 44, 47 (Mass. 1968) (holding          ____ ______    _________          that  the   parties'  intent  "must  be  gathered   from  a  fair          construction  of the  contract  as a  whole  and not  by  special          emphasis upon any one part"); Chase Commercial Corp. v. Owen, 588                                        ______________________    ____          N.E.2d  705, 707 (Mass. App. Ct. 1992) (construing a guaranty and          contemporaneous  loan  and security  agreements  as  part of  one          transaction and reading them  together despite the fact that  the          guaranty did not incorporate the other documents by reference).                    "The question  of whether a contract  term is ambiguous          is one of law for the  judge."  Allen, ___ F.2d at ___  [slip op.                                          _____          at  6]; accord  Boston  Five  Cents Sav.  Bank,  768  F.2d at  8;                  ______  ______________________________          Jefferson Ins. Co.  v. Holyoke,  503 N.E.2d 474,  476 n.4  (Mass.          __________________     _______          App. Ct.), rev.  denied, 506 N.E.2d 146 (Mass. 1987).  A contract                     ____  ______          is  not ambiguous  simply  because litigants  disagree about  its          proper  interpretation.  See  Papago Tribal Util.  Auth. v. FERC,                                   ___  __________________________    ____          723  F.2d 950, 955 (D.C. Cir. 1983),  cert. denied, 467 U.S. 1241                                                _____ ______          (1984).   Rather, a contract, or a  set of documents which in the          ensemble comprise  a contract, is considered  ambiguous only when                                          7          the language "is reasonably  prone to different interpretations."          Fowler  v. Boise Cascade Corp., 948 F.2d  49, 54 (1st Cir. 1991).          ______     ___________________          Stated another  way, contract  language which "is  susceptible to          differing,  but nonetheless  plausible,  constructions .  . .  is          ambiguous."   Allen, ___ F.2d at  ___ [slip op. at  12]; see also                        _____                                      ___ ____          Fashion House,  Inc. v. K  Mart Corp., 892  F.2d 1076,  1083 (1st          ____________________    _____________          Cir. 1989).                                          B.                                          B.                                          __                    Notwithstanding   appellants'  unremitting   effort  to          overshadow the  Guaranty by  a  single-minded focus  on the  1987          Note's non-recourse provision, we discern no ambiguity here.  The          non-recourse provision  unequivocally refers to  the "Obligations          of  Borrower," namely, Bandon, and to the "personal assets of any              ________          partner."   (Emphasis  supplied.)   The  status of  guarantor  is          _______          obviously  not implicated either by the word "Borrower" or by the          allusion to "any partner."  Any  mention of, or reference to, the          appellants qua guarantors is conspicuously lacking.                       ___                    On  the other  hand, the  language of  the Guaranty  is          plain  as   a  pikestaff.     The  signatories   "unconditionally          guarantee[d]"   all  liabilities   "now  existing   or  hereafter          arising."   Nothing in the  document package  indicates that  the          parties later intended to nullify the Guaranty or to restrict its          sweep.  Indeed,  the parties took pains in  the 1987 Amendment to          reaffirm  the Guaranty,  thus  leaving it  in  full flower.    We          believe  that,  by  executing the  Guaranty  in  addition to  the          partnership  obligation,  and  by  thereafter  reaffirming  it in                                          8          conjunction  with  the  loan  rewrite,  the  appellants  incurred          liability in  two separate and  distinct capacities.   Cf., e.g.,                                                                 ___  ____          Fred T.  Ley & Co. v. Sagalyn,  19 N.E. 2d 687,  689 (Mass. 1939)          __________________    _______          (upholding  personal  liability  of  trustees  who   also  signed          guaranty of trust obligations as individuals).                    In an  effort to stem this  inexorable tide, appellants          invite  us to infer a  construction that would  render an express          clause  in the documents nugatory.   Such an  invitation flies in          the  teeth of  Massachusetts law,  which directs  courts to  give          reasonable  effect to  each  provision of  an agreement  wherever          feasible.  See J.A.  Sullivan Corp. v. Commonwealth, 494  N.E. 2d                     ___ ____________________    ____________          374,  378 (Mass.  1986); McMahon  v. Monarch  Life Ins.  Co., 186                                   _______     _______________________          N.E.2d 827, 830  (Mass. 1962).   "It is  a canon of  construction          that every  word and phrase of an instrument is if possible to be          given  meaning, and none is  to be rejected  as surplusage if any          other  course  is rationally  possible."   Tupper v.  Hancock, 64                                                     ______     _______          N.E.2d  441,  443  (Mass.  1946)  (citation  omitted).    Because          appellants' reading  of the  documents would render  the Guaranty          and  the reaffirmation of it surplusage    and would do so in the          utter  absence  of  any  manifest necessity  for  so  drastic  an          outcome5   we cannot accept it.                    Moreover,   Massachusetts   law   embraces  the   maxim                                        ____________________               5There are, of course, sound business reasons why a borrower          might want  to free prospective partners  from personal liability          even though existing  partners remain liable  as guarantors.   To          cite but  one  example,  doing  so would  obviously  enhance  the          partnership's ability to attract new partners to the venture, and          thus, to secure an infusion of fresh capital.                                          9          "expressio    unius    est   exclusio    alterius."       Chatham           ________________________________________________         _______          Pharmaceuticals, Inc. v. Angier Chem. Co., 196 N.E.2d 852, 854-55          _____________________    ________________          (Mass. 1964).  That maxim applies as forcibly to exceptions to an          obligation as  to  enumerations  of the  objects  embraced  by  a          contract.   See  id.    Here, the  Amendment  lists  a number  of                      ___  ___          particular alterations in  the security instruments  without once          mentioning  a nullification  or  diminution  of  the  liabilities          assumed under the Guaranty.  In these circumstances, the parties'          failure  to provide  expressly for  modification of  the Guaranty          leaves  us no  choice  but  to  give  effect  to  the  Guaranty's          provisions.  Courts should not attempt to "accomplish by judicial          fiat what  [a party] neglected  to achieve  contractually."   RCI                                                                        ___          Northeast Servs. Div.  v. Boston  Edison Co., 822  F.2d 199,  204          _____________________     __________________          (1st Cir. 1987).                    To recapitulate, the  non-recourse provision limits the          liabilities incurred under the 1987 Note by the appellants acting          as  partners of Bandon Associates; it does not limit the separate          and  distinct liabilities  incurred  by the  appellants in  their          capacities  as guarantors.    Taken  as  a  whole,  there  is  no          ambiguity; the  documents are  susceptible only to  one plausible          construction.  Hence, appellants'  suggestion that they  intended          the non-recourse provision to qualify the Guaranty is irrelevant.          See,  e.g., Fairfield 274-278  Clarendon Trust v.  Dwek, ___ F.2d          ___   ____  __________________________________     ____          ___, ___ (1st Cir. 1992) [No. 91-1729, slip op. at 6-7] (refusing          to subrogate  an unambiguous  contract provision to  the supposed          contemplation  of  the  parties;  applying   Massachusetts  law);                                          10          Appalachian  Power  Co. v.  FPC, 529  F.2d  342, 348  (D.C. Cir.)          _______________________     ___          (stating that a party  may not "reach outside  . . .  unambiguous          contracts for an argument  seeking to impart uncertainty"), cert.                                                                      _____          denied, 429 U.S. 816 (1976); Blakeley v. Pilgrim Packing Co., 340          ______                       ________    ___________________          N.E.2d 511, 514 (Mass. App. Ct. 1976) (similar).                                          C.                                          C.                                          __                    The continued enforceability of the Guaranty, according          to  its  tenor, is  not only  dictated by  state  law and  by the          incidence of clear and unambiguous language; it is also suggested          by  the  spirit,  if  not  the  letter,  of  the  D'Oench,  Duhme                                                            _______________          doctrine.6  As  we have  said, appellants' basic  thesis is  that          the  non-recourse provision of the 1987 Note implies an intent to          defenestrate  the  Guaranty.    We think  that  nullification  by          implication  transgresses the  principles animating  the D'Oench,                                                                   ________          Duhme doctrine,  both in its  common law and  statutory variants.          _____          That  doctrine  is  designed to  "help  the  FDIC accurately  and          speedily  determine an insolvent bank's value."  Bateman v. FDIC,                                                           _______    ____          ___ F.2d ___, ___ (1st Cir.  1992) [No. 91-1832, slip op. at 12];          accord  Commerce Federal Sav. Bank  v. FDIC, 872  F.2d 1240, 1245          ______  __________________________     ____          (6th Cir.  1989).   The doctrine  requires that  agreements which          would  diminish  or  defeat  the  FDIC's  interest  in any  asset          acquired by it must fulfill certain requirements.  See supra note                                                             ___ _____                                        ____________________               6While we agree with  our concurring brother that appellants          failed to  demonstrate either board or loan committee approval of          any modification of guarantor liability, we believe that the case          is  satisfactorily resolved on  the grounds previously discussed,          and  it is, therefore, unnecessary for us to consider the further          potential ground for affirming  summary judgment upon which Judge          Skinner rests his separate opinion.                                          11          3.  By making  the value of  bank assets readily apparent,  these          requirements  aid the FDIC in  fulfilling its mission.   "[I]t is          important  that  FDIC officials,  examining the  insolvent bank's          documents,  feel they can rely,  for valuation purposes, upon the          bank's documents as meaning what they  say."  Bateman ___ F.2d at                                                        _______          ___ [slip op. at 12].                    Guaranty obligations are assets  of the FDIC within the          meaning  of 12 U.S.C.  1823(e).   See FDIC  v. Virginia Crossings                                            ___ ____     __________________          Partnership,  909 F.2d 306, 312  (8th Cir. 1990);  FDIC v. P.L.M.          ___________                                        ____    ______          Int'l, Inc., 834  F.2d 248, 253  (1st Cir. 1987).   To allow  the          ___________          non-recourse provision inserted  in the 1987 Note  to nullify the          Guaranty by  implication, when the  non-recourse language appears          in a document separate  from the asset in  question and when  its          plain words on the surface suggest a far  more limited aim, would          undercut the  principle that  FDIC officials  should  be able  to          assess the value of an insolvent bank's assets from the "official          record[s]  of   the  depository   institution."    12   U.S.C.             1823(e)(4).                    Appellants'   proffer   of   extrinsic    evidence   to          demonstrate  the parties'  ostensible intentions falls  victim to          many of the same  considerations.  Such evidence, not  visible to          FDIC officials on  the face of the  documents to which they  must          refer in  determining  the value  of assets  they have  acquired,          should not, under the  D'Oench, Duhme rationale, be permitted  to                                 ______________          contribute  covertly to the diminution of these assets.  See FDIC                                                                   ___ ____          v. Merchants Nat.  Bank, 725  F.2d 634, 637  (11th Cir.)  (noting             ____________________                                          12          that  the  district  court  "correctly applied  Sec.  1823(e)  to          exclude  as irrelevant any evidence  not found in  the records of          the  bank and  not meeting  the statute's  strict requirements"),          cert.  denied, 469  U.S. 829  (1984); FDIC  v. Cardinal  Oil Well          _____  ______                         ____     __________________          Servicing Co., 837 F.2d  1369, 1372 (5th Cir. 1988)  (refusing to          _____________          considerexternalevidencethat didnotmeet 1823(e)'s requirements).7                                          D.                                          D.                                          __                    Appellants  advance   three  additional  asseverations.          None of them suffices to carry the day.                    First, using prior U.C.C.   3-119 as a springboard, and          noting that  Massachusetts  has adopted  the  Uniform  Commercial          Code, see Mass. Gen.  Laws. Ann. ch. 106 (West  1990), appellants                ___          urge  that, since a direct  contradiction exists between the 1987          Note and the Guaranty, the former, being a negotiable instrument,          should  be given  effect.8   The  fly  in the  ointment  is huge:                                        ____________________               7Reliance upon extrinsic  evidence is also  inappropriate in          light  of the longstanding common  law rule that  where, as here,          the contract is unambiguous, extrinsic evidence as to the meaning          of terms  and the intent of the parties should not be considered.          See, e.g., Fairfield, Etc.  Trust, ___ F.2d at  ___ [slip op.  at          ___  ____  ______________________          6]; Cardinal  Oil, 837 F.2d at  1371; Papago Tribal, 723  F.2d at              _____________                     _____________          955; Massachusetts Mun. Wholesale  Elec. Co. v. Town of  Danvers,               _______________________________________    ________________          577 N.E.2d 283, 289 (Mass. 1991); Blakeley, 340 N.E. 2d at 514.                                            ________               8The language  that appellants most cherish  is contained in          comment 3:                    If there is outright contradiction between [a                    separate    writing    and    a    negotiable                    instrument],  as where the note is for $1,000                    but the accompanying mortgage recites that it                    is for $2,000, the note  may be held to stand                    on its own feet and not to be affected by the                    contradiction.          U.C.C.   3-119 comment 3 (1964).  While the corresponding section                                          13          appellants'   exhortation  is   completely  dependent   upon  the          existence of  an "outright  contradiction" between the  1987 Note          and the Guaranty   and we see none.  To the exact contrary, there          is a perfectly natural reading which reconciles the documents and          renders   them  internally   consistent.     Thus,  the   law  of          Massachusetts demands  that we harmonize the  clauses rather than          strain to  create an imaginary conflict  between the non-recourse          provision and  the  reaffirmation of  the  Guaranty.   See  Truck                                                                 ___  _____          Drivers,  Local 42  v. International  Bhd. of  Teamsters, 482  F.          __________________     _________________________________          Supp.  266,  271 (D.  Mass.  1979) (preferring  to  read contract          clauses as if they are not in  conflict if such an interpretation          is  reasonably  possible);  McMahon,  186  N.E.2d  at  830  ("[A]                                      _______          contract  is to be construed to give  a reasonable effect to each          of its provisions if possible.").                    Next, appellants  claim that the loan  documents should          be construed against  the FDIC because  the lender drafted  them.          But,  this argument  is a  mere heuristic.   Documents  should be          construed against the drafter  only when the questioned language,          together with the circumstances surrounding its use, creates some          cognizable  uncertainty as  to intended  meaning.   See Merrimack                                                              ___ _________          Valley Nat'l Bank  v. Baird,  363 N.E.2d 688,  690 (Mass.  1977);          _________________     _____          Aldrich v. Bay  State Constr. Co., 72  N.E. 53, 54 (Mass.  1904);          _______    ______________________          see also  Shea v. Bay State  Gas Co., 418 N.E.2d  597, 602 (Mass.          ___ ____  ____    __________________                                        ____________________          of revised Article 3  (adopted after the documents at  issue here          were  drafted) does not retain  this comment, see  U.C.C.   3-117                                                        ___          (1990),  the prior  version still  persists in  the Commonwealth.          See Mass. Gen. Laws Ann. ch. 106,   3-119.          ___                                          14          1981) (stating that the rule of construction against the  drafter          "must give  way to the  primary and  inflexible rule that  . .  .          contracts . . . are to be construed so as to ascertain . .  . the          true  intention  of the  parties")  (citation omitted).    In the          absence of ambiguity, non-drafters gain no special advantage.                    Appellants' last argument completely  contradicts their          original premise.  Having unsuccessfully maintained that the 1987          Note and  the Guaranty  are irreconcilably inconsistent  with one                                                     ____________          another, they shift gears in  their reply brief, maintaining, for          the  first  time,  that   the  two  documents  are  unnecessarily          duplicative (in  other words, consistent  with one another).   To                                        __________          this end, they cite Seronick v. Levy, 527 N.E.2d 746, 749  (Mass.                              ________    ____          App.  Ct.), rev.  denied, 530  N.E.2d 797  (Mass. 1988),  for the                      ____  ______          broadcast  proposition that, where the makers of a note also sign          as   guarantors,  the   guaranty   is   surplusage  and,   hence,          unenforceable.  Because appellants signed both  the 1987 Note and          the  Guaranty, they argue, the Guaranty is excess baggage and the          FDIC cannot proceed against them under it.                      The  facts  of  this  case  fail  to  support  such  an          overgeneralized argument.  Because  the Guaranty operates to hold          appellants individually  responsible for Bandon's  liabilities to          the  mortgage lender while the  1987 Note blocks  recourse to the          personal  assets  of  partners  other than  the  appellants,  the          Guaranty  is  hardly  surplusage.    Moreover,  the  Guaranty  is                                          15          significantly broader  than the  1987 Note in  certain respects.9          We offer  two examples.  (1)  The Guaranty does not  refer to the          repayment of any specific liability in any specific  time period,          but rather was clearly meant to secure any liability running from                                                 ___          Bandon  to  the  bank.    Stated  another   way,  the  obligation          undertaken  under the Guaranty is not  bounded by the term of the          1987  Note    or any  specific note,  for that  matter.   (2) The          Guaranty,  unlike the 1987 Note, also obligates the guarantors to          deliver additional  collateral, presumably from  personal assets,          "at  such time  or times as  the [lender]  may deem  itself to be          insecure."   These  dissimilarities adequately  evince  that  the          Guaranty  is not  surplusage by  any stretch  of the  most active          imagination.   Cf. Ligran, Inc. v. Medlawtel, Inc., 432 A.2d 502,                         ___ ____________    _______________          505-06  (N.J. 1981) (holding  that although  a guaranty  is often          surplusage  when a  maker  also signs  as  guarantor, in  certain          limited and unusual situations, a maker may enlarge the scope, if          not the duration, of liability by signing as a guarantor).10                                         ____________________               9In  other  respects,  however,  the  Guaranty  is  slightly          narrower than the 1987  Note.  For example, the  Guaranty, unlike          the 1987  Note, specifically contemplates possible  revocation by          one or more of the guarantors.               10To  be sure,  certain  states have  laws that  prohibit or          limit  deficiency judgments  after foreclosure.   To  enforce the          policies  behind these  statutes,  courts have  frowned on  post-          foreclosure deficiency judgments against guarantors who were also          makers.  See, e.g.,  Westinghouse Credit Corp. v. Barton,  789 F.                   ___  ____   _________________________    ______          Supp. 1043, 1046 (C.D.Cal. 1992) (non-recourse nature of loan  to          partnership did  not separate guarantor from his normal status as          partner and principal obligor so as  to make him a true guarantor          outside the protection of California anti-deficiency  law); First                                                                      _____          Interstate Bank  v. Larson, 475  N.W.2d 538,  542-44 (N.D.  1991)          _______________     ______          (distinction between  obligors' joint liability  as partners  and          their joint  and several liability as  individual guarantors must                                          16          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go no further.  Where, as here, a "transaction          is  commercial,  the  principals  practiced  and  represented  by          counsel,  and the  contract itself  reasonably clear,  it  is far          wiser for a court to honor the parties' words than to imply other          and further promises out of thin air."  Mathewson Corp. v. Allied                                                  _______________    ______          Marine  Indus., Inc., 827 F.2d 850, 856 (1st Cir. 1987) (applying          ____________________          Massachusetts law).  On  that basis, we are fully  satisfied that          we should  not venture  to rewrite  the lender/borrower/guarantor          agreements  that  underlie  this  controversy.   We  are  equally          satisfied  that,  as  written,   the  agreements  are  clear  and          unambiguous.   Construed according  to their tenor,  they warrant          summary judgment in the FDIC's favor.          Affirmed.           Affirmed.          ________                                 Concurrence Follows                                          ____________________          give way  to the  force of  North Dakota's anti-deficiency  law).          Massachusetts,  however, has no such policy.  See Mass. Gen. Laws                                                        ___          Ann. ch. 244,  17B (West 1988).  Accordingly, we are particularly          reluctant to strip a bona fide guaranty of its intended effect.                                          17          SKINNER, District Judge, concurring.                    I concur in the  court's judgment, but write separately          because I am unable  to accept the court's conclusion  that there          is in fact no  conflict between the 1987 Note  and the Guarantee.          In  my  view  this  issue  should  not  be  resolved  without  an          evidentiary  hearing.   The result  adopted by  the court  can be          reached by a different route, however.                    Congress  opted  for  certainty  when  it  enacted  the          categorical recording scheme  embodied in   1823(e).   Langley v.                                                                 __________          FDIC, 484 U.S.  86, 95 (1987).   The scope  of a court's  inquiry          ____          into  the enforceability  of  an agreement  is  limited, and  the          court's conclusion depends entirely on the agreement's compliance          or  noncompliance  with the  statute.   See  id. at  94-95.   The                                                  ___  __          statute  provides that any  agreement that "tends  to diminish or          defeat  the  interest of  the [FDIC]  in  any asset  acquired" as          receiver is invalid against the FDIC, unless the agreement:                (1) is in  writing, (2) was executed by  the depository               institution and any person claiming an adverse interest               thereunder,  including  the obligor,  contemporaneously               with  the acquisition  of the  asset by  the depository               institution, (3) was approved by the board of directors               of the  depository institution  or its  loan committee,               which  approval shall  be reflected  in the  minutes of               said   board   or   committee,   and  (4)   has   been,               continuously,  from  the  time  of  its  execution,  an               official record of the depository institution.          12 U.S.C.A.   1823(e).          In  this case,  the district court  concluded correctly  that the          1985 Guaranty  was an "asset" of the FDIC within the meaning of            1823(e).   FDIC v. Virginia Crossings  Partnership, 909 F.2d 306,                     _______________________________________          312 (8th Cir. 1990); FDIC v. P.L.M. Int'l, 834 F.2d 248, 253 (1st                               ____________________          Cir.  1987).   Therefore,  in  order  to  defeat  or  impair  the                                          18          Guaranty, the appellants had the burden of demonstrating that the          1987 Agreement  and purported release  complied with each  of the          four  requirements of   1823(e).  FDIC v. Rivera-Arroyo, 907 F.2d                                            _____________________          1233, 1236 (1st Cir. 1990); P.L.M. 834 F.2d at 253.                                      _____               The  statute, among  other  things, requires  both that  the          board  or loan  committee  approve the  agreement  and that  such          approval  be reflected in the  minutes of the  board or committee          meeting.   12  U.S.C.    1823(e)(3).    Absent evidence  of  such          approval,  the  agreement  is  unenforceable  against  the  FDIC.          P.L.M., 834 F.2d at 253; FDIC v. Eagle Prop., 664  F. Supp. 1027,          _____                    __________________          1051   (W.D.  Tex.   1985)  (holding   subordination  certificate          unenforceable  in spite  of  general board  authorization because          minutes  do not  specifically approve  the certificate);  FDIC v.                                                                    _______          Gardner,  606  F.  Supp.  1484,  1488  (S.D.  Miss.  1985)  (side          _______          agreement   not   referenced   or  affirmatively   and   directly          acknowledged is unenforceable).                 The  record  is devoid  of  evidence  supporting appellants'          contention that the board or loan committee approved a release or          modification  of the  guarantors' liability.   At  oral argument,          appellants conceded that they  could point to no document  and no          affidavit to demonstrate the requisite approval.  But  the record          is  not  silent on  this issue.   Indeed,  far from  reflecting a          purported release, both the Loan  Committee Minutes and the  Loan          Approval  Sheet indicate  precisely  the opposite  understanding:          they  refer to the four  appellants, by name,  as "guarantors" of          the new  Note.    Moreover,  the  record  demonstrates  that  the          continuing personal guaranties of the appellants were significant          factors  in approving the loan.  A risk analysis report, attached                                          19          to  the loan approval sheet, twice mentions the "strength" of the          appellants' personal  guaranties as mitigating risk  factors.  It          is clear that no release of personal liability was authorized.                 There is no genuine  issue of material fact and  the FDIC is          entitled  to judgment as  a matter of  law.  I  therefore join in          affirming the judgment of the district court.                                          20
