                                                                             FILED
                                                                 United States Court of Appeals
                                          PUBLISH                        Tenth Circuit

                          UNITED STATES COURT OF APPEALS             December 20, 2013

                                                                     Elisabeth A. Shumaker
                                      TENTH CIRCUIT                      Clerk of Court



    FEDERAL DEPOSIT INSURANCE
    CORPORATION, as Receiver of First
    State Bank of Altus, Altus, Oklahoma,

         Plaintiff-Counter-Defendant-Appellee,

    v.
                                                      No. 12-6287
    MARK ARCIERO; WILLIAM
    NEWLAND; THOMPSON-DODSON
    FARMS, LLC; KEITH DODSON;
    GERALD RAY SMITH,*

     Defendants-Counter-Claimants-
     Appellants.



               APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE WESTERN DISTRICT OF OKLAHOMA
                           (D.C. No. 5:11-CV-00686-M)


Todd Taylor, Taylor & Strubhar, P.C., (Larry D. Derryberry and Rachel R. Shephard,
Derryberry & Naifeh, LLP, with him on the briefs), Oklahoma City, Oklahoma, for
Defendants – Counter-Claimants – Appellants.



*
 The appeal is abated as to Mark Arciero and Gerald Ray Smith because they are in
bankruptcy proceedings.
David L. Bryant, GableGotwals, Tulsa, Oklahoma, (John Henry Rule and Barabara M.
Moschovidis, GableGotwals, Tulsa, Oklahoma, and Leslie L. Lynch, GableGotwals,
Oklahoma City, Oklahoma, with him on the brief), for Plaintiff - Counter-Defendant –
Appellee.


Before HARTZ, O’BRIEN, and TYMKOVICH, Circuit Judges.


HARTZ, Circuit Judge.



       In an effort to save Quartz Mountain Aerospace, some of its investors and

directors took out large loans from First State Bank of Altus (the Bank) for the benefit of

the company. When the Bank failed in 2009, the Federal Deposit Insurance Corporation

(FDIC) took over as receiver and filed suit to collect on the loans. This appeal concerns

the challenge to those collection efforts by four of those liable on the notes (Borrowers).

Borrowers raised affirmative defenses to the FDIC’s claims and brought counterclaims,

alleging that the Bank’s CEO had assured them that they would not be personally liable

on any of the loans. The United States District Court for the Western District of

Oklahoma granted summary judgment for the FDIC because the CEO’s alleged promises

were not properly memorialized in the Bank’s records as required by 12 U.S.C.

§ 1823(e), a provision of the Financial Institutions Reform, Recovery, and Enforcement

Act of 1989, Pub. L. No. 101-73, 103 Stat. 183 (codified in scattered sections of 12, 18 &

31 U.S.C.).



                                             2
       Borrowers appeal on two grounds: (1) that the district court should not have

granted summary judgment before allowing them to conduct discovery, and (2) that the

district court should have set aside the summary judgment because they presented newly

discovered evidence of securities fraud by the Bank. We affirm the judgment below.

Borrowers did not support their request for discovery with any showing that discovery

could lead to evidence that would satisfy the requirements of § 1823(e); and their new

“evidence” was not admissible evidence and related to a legal theory that Borrowers

could have raised—but did not raise—before.

I.     BACKGROUND

       In 2008 the Bank’s CEO, Paul Doughty, asked Borrowers and others to take out

and guarantee large loans whose principal purpose was to invest money in Quartz

Mountain Aerospace so it could make payments on its loans from the Bank and stay in

business. Three of the Borrowers—Mark Arciero, William Newland, and Thompson-

Dodson Farms, LLC—signed separate $2.5 million notes; the fourth, Keith Dodson, did

not take out his own loan but guaranteed the Thompson-Dodson Farms note.

       Doughty prepared a credit memorandum that accompanied each promissory note.

It described where the loan proceeds would go, including that some of the funds would be

used to purchase life-settlement contracts that would serve as collateral for the loans.1



1
 Life-settlement contracts allow an investor to purchase a third party’s life-insurance
policy. The investor becomes responsible for premium payments and collects benefits
                                                                              Continued . . .
                                              3
The memorandum stated that because of those contracts the “proposed loan can be repaid

in full without the sale of outside assets,” Aplt. App., Vol. II at 268, and that “the credit

risk of advances under this line is fully assured by the atomized life insurance policies

used as collateral,” id. at 270. Borrowers claim that the credit memorandum and

Doughty’s assurances caused them to believe that the loans would not expose them to any

personal liability or financial risk.

       On July 31, 2009, the Bank was closed by the Oklahoma State Banking

Department, and the FDIC was appointed as receiver. The FDIC filed suit on June 16,

2011, to collect on the promissory notes. Borrowers did not dispute that they had not

repaid the loans, but asserted that they had no obligation to do so because Doughty’s

representations to them constituted fraudulent inducement. They also brought

counterclaims alleging that the Bank committed fraud; that Doughty breached his

fiduciary duties; that Doughty failed to exercise reasonable care; that the Bank breached

the implied covenant of good faith and fair dealing; that the FDIC had impaired

Borrowers’ collateral; and that the Bank, Doughty, and the FDIC violated the Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961‒1968.

        The FDIC moved for summary judgment, arguing that what Doughty told

Borrowers was irrelevant because § 1823(e) precludes the use of oral commitments as

defenses to FDIC claims. Borrowers nevertheless submitted affidavits saying that they

when the insured dies. Policies are generally purchased from individuals who are 65
years or older, with life expectancies of 3 to 12 years.

                                               4
had been told by Doughty that they would have no personal liability and that the loans

would be fully collateralized. They also requested a deferral of the ruling or denial of

summary judgment to allow for discovery. The district court rejected the request for

delay, saying that further discovery would not be helpful because the FDIC had already

provided Borrowers and the court with the only documents necessary to rule on the

FDIC’s motion, such as the Bank’s loan files and the minutes of the board of directors.

       The district court then granted summary judgment. It held that Borrowers had

“breached their obligations under the promissory notes” and that all their affirmative

defenses were barred by § 1823(e). Aplt. App., Vol. II at 342. It also dismissed

Borrowers’ counterclaims because (1) the claims based on prereceivership conduct had

not been administratively exhausted, (2) Borrowers had conceded their impairment-of-

collateral claim by not challenging the FDIC’s argument that Oklahoma does not

recognize such a claim, and (3) federal agencies are not subject to civil RICO liability.

       A little over a month later, the Oklahoma Department of Securities opened an

investigation into whether the Bank, Doughty, or Altus Ventures, LLC (an affiliate of the

Bank) had sold unregistered securities, including the life-settlement contracts associated

with the loans in this case. Borrowers moved for reconsideration of the order granting

summary judgment on the theory that the Department’s investigation was newly

discovered evidence that could support an affirmative defense not barred by § 1823(e).

The district court denied the motion because the newly discovered evidence was “merely

cumulative of other evidence that [Borrowers] had at the time of the briefing on [the
                                             5
summary-judgment] motion.” Aplt. App., Vol. II at 481. It noted that Borrowers had

previously known of (1) the credit memorandum prepared by Doughty and (2) an FDIC

publication that warned of investor risks inherent in life-settlement contracts, discussed

the applicability of federal securities laws to such contracts, and included a case study

describing how the use of life-settlement contracts as loan collateral contributed to a

community bank’s failure. See id. The court also said that because Borrowers already

“could have, and perhaps should have, raised the issue of whether the loans were

unregistered securities and, thus, were not agreements and were not subject to § 1823[,]

[Borrowers] may not raise this issue for the first time in a motion for reconsideration.”

Id. at 482.

II.    DISCUSSION

       A.     Section 1823(e)

       When the FDIC tries to collect on promissory notes acquired from a failed bank, it

regularly confronts defenses that “involve claims of misrepresentation or ‘secret

agreements’ between the bank and the obligor that are not present on the face of the asset

itself.” FDIC v. Oldenburg, 34 F.3d 1529, 1550 (10th Cir. 1994). The FDIC could be

handicapped in litigating such claims because its personnel lack first-hand knowledge of

the relevant events, and those who would have such knowledge—the failed bank’s

directors, officers, and employees—often have nothing personally at stake while their

loyalties may be to the bank customers rather than to the FDIC. “[T]o protect the FDIC


                                             6
and the funds it administers,” id., strict statutory requirements must be satisfied before

any agreement can limit the liability of a borrower or guarantor to the FDIC:

                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 by purchase or as receiver of any
       insured depository institution, shall be valid against the [FDIC] unless such
       agreement—
                (A) is in writing,
                (B) 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,
                (C) 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
                (D) has been, continuously, from the time of its execution, an
       official record of the depository institution.

12 U.S.C. § 1823(e)(1). The Supreme Court has read the word agreement broadly in

interpreting this provision. See Langley v. FDIC, 484 U.S. 86, 92–93 (1987). When a

party raises an affirmative defense based on an agreement with the bank, it has the burden

of showing that the agreement meets the requirements of § 1823(e)(1). See Oldenburg,

34 F.3d at 1551.

       With this statutory context in mind, we turn to Borrowers’ two issues on appeal.

       B.     Additional Discovery

       Borrowers argue that the district court erred when it denied their motion under

Fed. R. Civ. P. 56(d) to delay ruling on the FDIC’s motion for summary judgment until

discovery could be conducted. Rule 56(d) provides that “[i]f a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts essential to
                                               7
justify its opposition [to a motion for summary judgment], the court may: (1) defer

considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to

take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d) (until

December 2010, Rule 56(f)). The party requesting additional discovery must present an

affidavit that identifies “the probable facts not available and what steps have been taken

to obtain these facts. The nonmovant must also explain how additional time will enable

him to rebut the movant’s allegations of no genuine issue of material fact.” Trask v.

Franco, 446 F.3d 1036, 1042 (10th Cir. 2006) (brackets, citation, and internal quotation

marks omitted). We review a district court’s denial of a Rule 56(d) motion for abuse of

discretion. See id. We will not reverse unless the district court’s decision to deny

discovery “exceed[ed] the bounds of the rationally available choices given the facts and

the applicable law in the case at hand.” Valley Forge Ins. Co. v. Health Care Mgmt.

Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (internal quotation marks omitted).

       Borrowers have not identified any documents that discovery could uncover that

would establish a defense satisfying § 1823(e). To prove an agreement limiting their

liability, Borrowers would have to produce (1) a written agreement executed by the Bank

and one of the Borrowers and (2) Bank minutes approving the agreement. See 18 U.S.C.

§ 1823(e)(1). But no Borrower attested to signing such an agreement or gave any reason

to believe that such an agreement existed. And Borrowers do not claim that they are

missing any Bank minutes. Speculation cannot support a Rule 56(d) motion.


                                             8
          Borrowers state in their opening brief that they have identified people who “could

and likely would provide evidence which would ultimately bring this case outside of

12 U.S.C. § 1823(e).” Aplt. Br. at 18. But the brief does not go on to explain what that

evidence might be or how the evidence would create a defense not governed by

§ 1823(e). Indeed, the quoted sentence is the only reference to § 1823(e) in the opening

brief’s argument on the Rule 56(d) issue. Such an undeveloped assertion does not suffice

to preserve an issue for review. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.

2007) (“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant’s opening brief.”). And the slightly more

developed argument in Borrowers’ reply brief comes too late. See Cahill v. Am. Family

Mut. Ins. Co., 610 F.3d 1235, 1239 (10th Cir. 2010) (“We do not address arguments first

raised in [a] reply brief.”) We also note that Borrowers apparently did not support their

Rule 56(d) request in district court with a claim that they may have a defense not

controlled by § 1823(e); they do not point to any pleading where they raised such a claim,

nor have we found any discussion of such a claim in the Rule 56(d) pleadings. See Tele-

Communications, Inc. v. Comm’r, 104 F.3d 1229, 1232 (10th Cir. 1997) (“Generally, an

appellate court will not consider an issue raised for the first time on appeal.”) We hold

that the district court did not abuse its discretion in denying the request for Rule 56(d)

relief.

          Borrowers devote a section of their brief to the proposition that summary

judgment on their affirmative defenses was improper. But their only argument against
                                               9
the summary judgment is that their Rule 56(d) motion was denied. We understand the

argument as merely stating that if we agree with them on the Rule 56(d) motion, the

summary judgment must be set aside. Because we reject their Rule 56(d) argument, we

need say no more on this issue.

       C.     Newly Discovered Evidence

       Borrowers argue that the district court erred in denying their motion for

reconsideration based on newly discovered evidence. A party can seek relief based on

newly discovered evidence under either Fed. R. Civ. P. 59(e) or 60(b)(2). We have held

that relief from judgment under Rule 60(b)(2) is available if:

       (1) the evidence was newly discovered since the trial; (2) the moving party
       was diligent in discovering the new evidence; (3) the newly discovered
       evidence was not merely cumulative or impeaching; (4) the newly
       discovered evidence is material; and (5) . . . a new trial with the newly
       discovered evidence would probably produce a different result.

Dronsejko v. Thornton, 632 F.3d 658, 670 (10th Cir. 2011) (brackets and internal

quotation marks omitted). The required showing is the same whether judgment was

entered after a trial or on a motion for summary judgment. See id. (“Of course, in this

case the Plaintiffs sought relief from an order dismissing the case, not from the result of a

trial—but the required showing under Rule 60(b)(2) remains the same.”). We have often

expressed the requirements for relief under Rule 59(e) as including only the first two of

the above requirements. See Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144,

1153 (10th Cir. 2012) (“Where a party seeks Rule 59(e) relief to submit additional

evidence, the movant must show either that the evidence is newly discovered or if the
                                             10
evidence was available at the time of the decision being challenged, that counsel made a

diligent yet unsuccessful effort to discover the evidence.” (brackets and internal quotation

marks omitted)). But we have also recognized in the Rule 59(e) context that the newly

discovered evidence “must be of such a nature as would probably produce a different

result,” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195,

1213 (10th Cir. 2012) (internal quotation marks omitted), and it is well-settled that the

requirements for newly discovered evidence are essentially the same under Rule 59(e)

and 60(b)(2). See 11 Charles A. Wright, et al., Federal Practice and Procedure § 2859, at

387 (2012) (“The same standard applies to motions on the ground of newly discovered

evidence whether they are made under Rule 59 or Rule 60(b)(2).” (footnote omitted)).

We review the district court’s decision under either rule for abuse of discretion. See

Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th

Cir. 2002). Accordingly, we need not address the parties’ dispute about which rule

Borrowers made their motion under.

       Borrowers’ alleged newly discovered evidence is that the Oklahoma Department

of Securities opened an investigation into the Bank, its affiliate Altus, and Doughty for

selling unregistered securities, including the life-settlement contracts used to secure the

loan to Borrowers. According to Borrowers, this evidence supports claims and defenses

against the FDIC that would not be barred by § 1823(e) because they are based on

securities violations rather than agreements with the Bank.


                                             11
       Several of our fellow circuits have rejected such attempts to get around § 1823(e).

See FDIC v. Giammettei, 34 F.3d 51, 58 (2d Cir. 1994) (defenses based on the violation

of federal securities laws are subject to the requirements of § 1823(e)); Dendinger v. First

Nat’l Corp., 16 F.3d 99, 102 (5th Cir. 1994) (“[A]n oral misrepresentation by a lender to

a borrower, whether in violation of federal securities law or not, constitutes an unwritten

‘agreement’ that does not bind the FDIC under [§ 1823(e)].”); FDIC v. Investors Assocs.

X, Ltd., 775 F.2d 152, 156 (6th Cir. 1985). But see Adams v. Zimmerman, 73 F.3d 1164,

1168–69 (1st Cir. 1996) (claim based on violation of state securities-law registration

requirement does not rest on agreements subject to § 1823(e)). We need not reach that

issue, however, because evidence of the investigation does not satisfy the requirements

for newly discovered evidence.

       Newly discovered evidence must be admissible evidence to support relief under

Rule 59 or 60(b)(2). See Goldstein v. MCI WorldCom, 340 F.3d 238, 257 (5th Cir. 2003)

(it is “self evident” that newly discovered evidence must “be both admissible and

credible” (internal quotation marks omitted)); 11 Charles A. Wright, et al., supra, § 2808,

at 117 (“Newly discovered evidence must be admissible and probably effective to change

the result of the former trial.” (footnote omitted)). The existence of an investigation,

however, is not admissible evidence of alleged misconduct. The purpose of an

investigation is to determine whether misconduct has occurred. Evidence uncovered by

the investigation might be admissible, but Borrowers point to no such evidence. At most,

the opening of an investigation alerted Borrowers to the possibility that securities laws
                                             12
governed their transactions with the Bank and that they could bring claims under those

laws. But learning of a new legal theory is not the discovery of new evidence. Moreover,

as noted by the district court, Borrowers had previously been alerted to the possible

availability of the theory. Before the FDIC moved for summary judgment, Borrowers

had a credit memorandum describing the life-settlement contracts associated with their

loans and an FDIC publication that included an article listing the dangers of life-

settlement contracts, which mentioned the applicability of federal securities laws.

       We conclude that the district court did not abuse its discretion in denying

Borrowers’ motion to set aside the summary judgment because of alleged newly

discovered evidence.

III.   CONCLUSION

       We AFFIRM the judgment below.




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