            Case: 16-10962   Date Filed: 08/02/2017   Page: 1 of 13


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 16-10962
                         ________________________

                 D.C. Docket No. 3:12-cv-00548-MCR-EMT



FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Gulfsouth Private Bank,

                                                   Plaintiff-Counter Defendant-
                                               Third Party Defendant-Appellee,

                                   versus

WILLIAM L. AMOS,

                                                Defendant-Third Party Plaintiff-
                                                  Counter Claimant-Appellant,


ZTF FAMILY LP, et al.,

                                                           Third Party Plaintiffs,


INNOVATION TREND SETTERS OF AMERICA LLC,


                                                                      Defendant,


JOSEPH STORY, et al.,
               Case: 16-10962      Date Filed: 08/02/2017      Page: 2 of 13




                                           Third Party-Counter Defendants-Defendants.

                              ________________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                           ________________________

                                     (August 2, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and
MOORE, * District Judge.

PER CURIAM:

       When the FDIC attempts to collect outstanding obligations in its role as the

receiver for a failed bank, a borrower’s defenses are somewhat limited. William

Amos ran up against those limitations when he was barred from asserting that a

note and a guaranty that he had signed were the product of fraud.

           I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       Amos, Joseph Story, and Roderic Wright created Innovation Trendsetters of

America, L.L.C., for the purpose of “develop[ing], marketing, and manag[ing] real

property.” As part of the company’s formation, Wright contributed to Innovation

property that he owned on Bayou Drive in Destin, Florida.

       About a month after Innovation was formed, Wright, as “managing

member” of the company, executed a promissory note under which GulfSouth

       *
        Honorable K. Michael Moore, Chief Judge, United States District Court for the
Southern District of Florida, sitting by designation.


                                              2
              Case: 16-10962    Date Filed: 08/02/2017    Page: 3 of 13


Private Bank would loan Innovation $4.151 million (the Innovation note). The

Innovation note was secured by the Bayou Drive property. Three days later Amos

signed a “continuing guaranty,” which provided that his “liabilities and

obligations” would be “unlimited” and would “include all present and future

written agreements between [Innovation] and [GulfSouth] . . . including, but not

limited to, the promissory note and agreements described below.” Below that

statement the guaranty contained a table in which several columns were left blank,

including the “interest rate” column and the “principal amount/credit limit”

column. But the “loan number” column listed the Innovation note’s loan number.

      Several months after that, Amos, on his own behalf, executed a promissory

note under which GulfSouth loaned him $200,000 (the Amos note). He originally

intended to use the proceeds of the loan to make interest payments on the

Innovation note. But he stopped making those payments after the FBI told him

that Wright was a “serial financial predator” and that Wright’s activities in

connection with Innovation might be fraudulent.

      GulfSouth filed a complaint in Florida state court alleging that Innovation

and Amos had defaulted on their respective notes and that Amos was a guarantor

of the Innovation note. While the litigation was pending, the Florida Office of

Financial Regulation closed GulfSouth and appointed the FDIC as the failed

bank’s receiver. Substituted in GulfSouth’s place as the plaintiff, the FDIC



                                          3
                Case: 16-10962       Date Filed: 08/02/2017       Page: 4 of 13


removed this case to federal court under 12 U.S.C. § 1819(b)(2)(B). After that, in

an amended answer Amos asserted six affirmative defenses attacking the validity

of the instruments and alleging that GulfSouth knew “of the fraudulent activities

being undertaken by [Wright].” He also brought a counterclaim for declaratory

relief seeking a judgment that the guaranty was “void and unenforceable due to the

fraudulent activities of Wright and GulfSouth.”

       The FDIC moved for summary judgment, which the district court granted in

part. The court concluded that the D’Oench doctrine barred Amos’ affirmative

defenses and counterclaim, and it ruled that Amos was directly liable for the Amos

note and liable as the guarantor of the Innovation note. See D’Oench, Duhme &

Co. v. FDIC, 315 U.S. 447, 62 S. Ct. 676 (1942). However, it allowed the question

of damages to proceed to a bifurcated trial: the amounts due on the Innovation

note and the Amos note would be determined by a jury, while the amount due on

the guaranty would be determined by the district court in a bench trial.

       Before those trials were held, Amos and Innovation entered into a short sale

agreement with the FDIC. 1 The FDIC agreed to cancel its mortgage on the Bayou

Drive property in exchange for Innovation selling the property. The agreement

provided that the sale price would be credited against the amount due on the

Innovation note (which would reduce Amos’ liability under the guaranty). It also

       1
         All of the agreements at issue in this appeal contained choice of law clauses providing
that they would be governed by Florida law.


                                                4
                Case: 16-10962       Date Filed: 08/02/2017        Page: 5 of 13


contained language that, according to Amos, suggested that he and Innovation

could use the property’s fair market value, instead of the sale price, as a credit

against their liability. The FDIC filed motions in limine seeking to exclude any

evidence of the Bayou Drive property’s fair market value, and the district court

granted those motions.

       After the trials, the jury found that the amount due on the Amos note was

$239,558 and the district court found Amos liable for $2,983,943 under the

guaranty. 2 This is Amos’ appeal.

           II. AMOS’ AFFIRMATIVE DEFENSES AND COUNTERCLAIM

       Amos first challenges the district court’s summary judgment order barring

his affirmative defenses and counterclaim. 3 “We review de novo a district court’s

grant of summary judgment and draw all inferences and review[ ] all evidence in

the light most favorable to the non-moving party.” Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks

omitted). “Summary judgment is properly granted when there is no genuine issue


       2
         Amos’ liability under the guaranty was equal to the principal and interest that was owed
on the Innovation note minus the credit from the short sale of the Bayou Drive property.
       3
          The FDIC contends that we lack jurisdiction to consider issues related to the Amos note
because he did not state in his amended notice of appeal that he was appealing from the district
court’s final judgment with respect to that note. But Amos did refer in the notice of appeal to the
district court’s summary judgment order on his defenses and counterclaim and the court’s order
on the FDIC’s motions in limine. Those orders are the only ones that Amos is challenging, so
his notice of appeal was not deficient and we have jurisdiction to consider all of the claims he
raises. See Fed. R. App. P. 3(c)(1)(B) (providing that a notice of appeal must “designate the
judgment, order, or part thereof being appealed”).


                                                 5
              Case: 16-10962    Date Filed: 08/02/2017    Page: 6 of 13


as to any material fact and the moving party is entitled to a judgment as a matter of

law.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225 (11th Cir. 2005)

(quotation marks omitted).

      The D’Oench doctrine holds that “in a suit against the maker of a note by a

federal deposit insurer, the maker is not allowed to raise a secret agreement

between the maker and the payee bank as a defense.” Bufman Org. v. FDIC, 82

F.3d 1020, 1023 (11th Cir. 1996). In layman’s terms, that means a borrower sued

by the FDIC can rely only on terms that appear on the face of the borrower’s note.

Any defense based on a “secret agreement” — that is, based on something not

appearing on the face of the note — is barred by the D’Oench doctrine.

      For example, in Langley v. FDIC, 484 U.S. 86, 108 S. Ct. 396 (1987), the

FDIC was the plaintiff in a lawsuit against two borrowers who had defaulted on a

note used to purchase some land. Id. at 88–90, 108 S. Ct. at 399–400. “[T]he

essence of [the borrowers’] defense against the note [was] that the bank made

certain warranties regarding the land, the truthfulness of which was a condition to

performance of their obligation to repay the loan.” Id. at 90–91, 108 S. Ct. at 401.

The borrowers contended that because the lending bank’s representations about the

land turned out to be false, they were released from their obligation. Id. at 88–91,

108 S. Ct. at 400–01. The Supreme Court disagreed, holding that the purported

“condition” — that the bank made warranties and they were truthful — was not



                                          6
             Case: 16-10962       Date Filed: 08/02/2017   Page: 7 of 13


apparent on the face of the note itself, so the D’Oench doctrine barred the

borrowers’ defense. See id. at 93, 96, 108 S. Ct. at 402–03.

      The D’Oench doctrine has been codified at 12 U.S.C. § 1823(e). That

subsection provides that:

      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).

      As an initial matter, we reject Amos’ contention that the FDIC did not

invoke the D’Oench common law doctrine because it cited only § 1823(e), not the

D’Oench decision, in its answer to Amos’ counterclaim. As we have explained,

“[t]he purposes of the statute and the common law rule [i.e. the D’Oench doctrine]

are the same, and this [C]ourt employs the same analysis under each.” Bufman, 82



                                           7
              Case: 16-10962     Date Filed: 08/02/2017    Page: 8 of 13


F.3d at 1024. There was no need for the FDIC to plead the common law D’Oench

doctrine in addition to the codification of the doctrine in § 1823(e).

       Amos also contends that the wrongful acts that excuse him from repayment

— Wright and GulfSouth’s allegedly fraudulent scheme — are outside the scope of

the term “agreement” in § 1823(e). At bottom, he is arguing that repayment of the

Amos note and the guaranty was conditioned on Wright and GulfSouth having

truthfully represented the loans’ financial context and what purpose the loans

would serve. But that “condition” for repayment does not appear anywhere on the

face of the Amos note or the guaranty. Just as the borrowers’ defense that

repayment was conditioned on truthful representations about the land was barred in

the Langley case, Amos’ defenses premised on Wright and GulfSouth’s

representations are barred in this case. See Langley, 484 U.S. at 90–91, 96, 108 S.

Ct. at 401, 403 (“A condition to payment of a note . . . is part of the ‘agreement’ to

which the writing, approval, and filing requirements of 12 U.S.C. § 1823(e)

attach.”).

       Amos next contends that “irregularities” in GulfSouth’s bank records did or

should have put the FDIC on notice that the notes and the guaranty were the

product of fraud. That contention fares no better than his other ones. The FDIC’s

knowledge, or lack of it, is irrelevant to the D’Oench inquiry. See id. at 95, 108 S.

Ct. at 403 (“An agreement that meets [the § 1823(e) requirements] prevails even if



                                           8
               Case: 16-10962   Date Filed: 08/02/2017    Page: 9 of 13


the FDIC did not know of it; and an agreement that does not meet them fails even

if the FDIC knew.”). It does not matter whether a bank inspector could have

deduced, based on GulfSouth’s records, that Amos was fraudulently induced into

executing the Amos note and the guaranty. What matters is that no writing that

meets § 1823(e)’s requirements excuses Amos from repayment. See id.

       In dicta in its Langley decision, the Supreme Court suggested that a defense

that “render[ed] the instrument entirely void,” such as “fraud in the factum,” would

not be subject to the D’Oench doctrine. Id. at 93, 108 S. Ct. at 402. Amos

contends that, under that dicta, two defenses he raised in the district court — fraud

in the factum and lack of actual authority — avoid the D’Oench bar. But even if

the D’Oench doctrine does not apply to those defenses, an issue we do not reach,

his contention still fails.

       The Supreme Court of Florida defined fraud in the factum as “[f]raud

occurring when a legal instrument as actually executed differs from the one

intended for execution by the person who executes it, or when the instrument may

have had no legal existence.” Browning v. Fla. Hometown Democracy, Inc., PAC,

29 So. 3d 1053, 1061 n.4 (Fla. 2010) (quoting Fraud in the Factum, Black’s Law

Dictionary (9th ed. 2009)). An example of that kind of fraud was involved in

Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998 (11th Cir. 1986).

There we held the plaintiffs’ allegations that the defendant told them they were



                                          9
               Case: 16-10962        Date Filed: 08/02/2017       Page: 10 of 13


opening a money market account but actually had them sign a contract for a

securities account amounted to fraud in the factum. See id. at 999–1001.

       Amos asserts that because certain terms, such as the principal amount, were

left blank on the guaranty, and because Wright misrepresented what Innovation

would do with the proceeds of the Innovation note, the guaranty was the product of

fraud in the factum. But Amos testified that he was familiar with guaranties in

general and that he knew he was signing a guaranty of a loan from GulfSouth to

Innovation. And the guaranty included the most important term: the loan number

of the Innovation note that was being guaranteed. That is a far cry from the

deception that constituted fraud in the factum in Cancanon. Summary judgment

against Amos was appropriate on his fraud in the factum defense.

       Amos also argues that the Innovation note was void because Wright lacked

actual authority to execute it. At the time the note was executed, Florida law

provided that in a “manager-managed company” a “member is not an agent of the

limited liability company for the purpose of its business solely by reason of being a

member.” Fla. Stat. § 608.4235(2)(a) (repealed 2015). Amos asserts that because

Innovation was a manager-managed company, Wright did not have authority to

execute the Innovation note, making it void. 4 The problem with that assertion is


       4
         We assume for the purposes of this argument that (1) a lack of actual authority renders a
contract void under Florida law; (2) if the Innovation note was void, that would also render the
Amos note and the guaranty void; and (3) an instrument that is void for lack of actual authority is


                                                10
               Case: 16-10962      Date Filed: 08/02/2017       Page: 11 of 13


that Innovation’s operating agreement expressly names Wright as the manager of

the company. 5 And the agreement gives the manager — that is, Wright — the

authority to “sign and deliver all contracts . . . and instruments which are

necessary, appropriate or convenient for . . . the furtherance of [Innovation’s]

purposes.” Because the record shows that Wright had authority to execute the

Innovation note, there was no genuine issue of material fact as to whether the note

was void for lack of actual authority. As a result, summary judgment was

appropriate regardless of whether the D’Oench doctrine barred this defense.

See D’Angelo, 422 F.3d at 1225.

                    III. THE FAIR MARKET VALUE EVIDENCE

       Amos also contends that the district court abused its discretion in granting

the FDIC’s motions in limine and excluding from the trials evidence of the Bayou

Drive property’s fair market value. “A district court’s ruling on the admissibility

of evidence is reviewed for abuse of discretion.” United States v. Masferrer, 514

F.3d 1158, 1162 (11th Cir. 2008).




not subject to the § 1823(e) requirements. We do not imply a view either way on any of those
issues.
       5
         As a technical matter, the operating agreement gives Wright the option of serving as
manager either “individually” or “through a Florida limited liability company.” No evidence in
the record indicates that he chose to act as manager through another entity, and he signed the
Innovation note as Innovation’s “managing member.”


                                              11
              Case: 16-10962     Date Filed: 08/02/2017    Page: 12 of 13


        The district court denied an out-of-time motion to designate an appraiser as

an expert on the property’s fair market value, concluding that there was no good

cause to modify the scheduling order after the time for designating an expert had

expired. Amos does not challenge that conclusion. He has therefore abandoned

any argument that the district court should have allowed him to present expert

testimony about the property’s fair market value. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014).

        After the district court ruled out the presentation of expert testimony, the

FDIC moved in limine to prohibit Amos from personally testifying as to the

property’s fair market value. In his response to that motion Amos argued that he

could provide lay testimony about fair market value. He acknowledged that at his

deposition he had admitted that he did not live in Destin or “know the market.”

But he pointed out that five years had passed since that deposition and asserted

that:

        Since [the deposition], Amos became manager of [Innovation], sold
        the [p]roperty to a third party . . . and wound-down the company.
        Contrary to [the FDIC’s] argument, this is an indication that Amos
        may be sufficiently familiar with the [p]roperty at issue, as well as its
        value on the date of [the] short sale. [The FDIC’s] argument ignores
        the possibility that Amos has had the time, inclination and
        provocation to understand the market property values, including at the
        time of the short sale . . . .




                                           12
              Case: 16-10962     Date Filed: 08/02/2017    Page: 13 of 13


(Citation and quotation marks omitted). Amos submitted no evidence, such as an

affidavit, that there was more than a “possibility” that he was “sufficiently familiar

with the [p]roperty.”

      The district court concluded that even if a landowner’s testimony about fair

market value is ordinarily admissible, Amos had provided “no factual basis” that

he “is sufficiently qualified . . . with sufficient knowledge or experience regarding

th[e] property to testify as to its value on the date of the short sale.” The ruling

preventing Amos from providing lay testimony on the issue was entirely

reasonable.

      AFFIRMED.




                                           13
