                                                      [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                        MARCH 17, 2011
                                 No. 10-12615
                                                          JOHN LEY
                           ________________________        CLERK

                   D. C. Docket No. 2:08-cv-00681-CEH-DNF

OCEAN BANK,
a Florida state banking corporation,

                                                          Plaintiff-Counter-
                                                        Defendant-Appellee,

                                       versus

FIRST FLORIDA BANK,
a Florida state banking corporation,

                                                        Defendant-Counter-
                                                        Claimant-Appellant.

ROYAL PALM BANK OF FLORIDA,
a Florida state banking corporation,

                                                        Defendant-Counter-
                                                                 Claimant.

                           ________________________

                                 No. 10-12616
                           ________________________

                   D. C. Docket No. 2:08-cv-00681-CEH-DNF
OCEAN BANK,
a Florida state banking corporation,

                                                                          Plaintiff-Counter-
                                                                        Defendant-Appellee,

                                            versus


FIRST FLORIDA BANK,
a Florida state banking corporation,

                                                                         Defendant-Counter-
                                                                                  Claimant,


ROYAL PALM BANK OF FLORIDA,
a Florida state banking corporation,

                                                                         Defendant-Counter-
                                                                         Claimant-Appellant.


                               ________________________

                      Appeals from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                      (March 17, 2011)

Before MARCUS and ANDERSON, Circuit Judges, and ALBRITTON,* District
Judge.

PER CURIAM:
_______________
*Honorable William Harold Albritton III, United States Senior District Judge for the Middle
District of Alabama, sitting by designation.

                                               2
      After oral argument, and careful consideration, we conclude that the

judgment of the district court is due to be affirmed, although perhaps upon grounds

somewhat different from those relied upon by the district court.

      Most importantly, we conclude that the parties’ Participation Agreements

confer priority payment rights to Ocean Bank, and that these rights apply to the

distribution of proceeds from the sale of the property by the participating banks

following their repossession thereof. The Participation Agreements expressly

provide in Section 8C that principal payments—“either during the term of the Loan

or during any post-maturity period” (emphasis added)—shall be subject to Ocean

Bank’s priority rights. The position that Ocean Bank retains its priority rights even

after the property is repossessed by foreclosure is bolstered by paragraph 9(C) of

the same Participation Agreements, which provides: “[T]he proceeds of all

collateral directly securing payment of the Loan . . . shall be applied to the full

payment of the Loan as provided in Section 8 above.”

      Even if there were some ambiguity with respect to the foregoing

Participation Agreements, the record evidence of the parties’ conduct provides

overwhelming proof that the parties understood that the priority rights of Ocean

Bank continued past repossession and applied to the proceeds of the sale of the




                                           3
property.1 The Appellants argue that the record contains disputed issues of

material fact, but their argument fails for lack of evidence. The deposition

testimony to which the Appellants cite neither denies that Ocean Bank maintained

its priority after a foreclosure, nor denies that the other two banks confirmed this

understanding to Ocean Bank. The stricken affidavits upon which Appellants

would like to rely were properly rejected as conclusory by the district court, and

likewise provide no grounds for reversal.

       Appellants also argue that no equitable lien could arise on the property

unless the Appellant banks owed a debt to Ocean Bank.2 However, Appellants cite

no cases for the proposition that parties who are competing for priority must owe

debts to one another before any one of them may claim a lien on the collateral. A

debt was clearly owed to Ocean Bank as the unpaid lender in the underlying

transaction, just as a debt was owed to the Appellant banks. The fact that the

property was collateral for the loan makes it proper for Ocean Bank to claim an

equitable lien. Accordingly, Appellants have no good argument against the


       1
               Any issues with respect to whether or not Ocean Bank had the right to sell the
repossessed property are moot. Appellants raised the issue only with respect to whether the oral
agreement relied upon by the district court allowed for a sale, and we do not rely upon this oral
agreement.
       2
              Appellants’ argument that no equitable lien could arise without a written
agreement is moot because we find that the written Participation Agreements provided the basis
for a lien.

                                                 4
imposition of the lien.

        Because we do not rely on the district court’s theory that there was a new

oral agreement, Appellants’ arguments that the relief exceeded the pleadings and

that there was no consideration to support the formation of a new agreement are

moot.

        For the foregoing reasons, the judgment of the district court is

        AFFIRMED.




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