                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       ____________________

                           No. 96-50381
                         Summary Calendar
                        __________________


         KWP Financial I, Inc., A California Corporation,

                                        Plaintiff-Appellee.

                              versus

                         John C. Harlan,

                                        Defendant-Appellant.

            __________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                            (A-96-CV-42)
            __________________________________________

                         October 9, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Harlan appeals summary judgment on a promissory note and

guaranty, contending that his set-off claim was not properly

addressed, and that appellee’s evidence was insufficient as a

matter of law.

     Claims of set-off are affirmative defenses which must be

raised in defendant’s first responsive pleading, or they are lost.


     *
          Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
Davis v. Odeco, 18 F.3d 1237, 1245 (5th Cir.) cert. denied, 115

S.Ct. 78 (1994); Fed. R. Civ. P. 8(c).          Harlan did not raise set-

off in his answer; and, it appears, he never moved to amend to

include   set-off.     The   district   court    understandably   did   not

consider defendant’s set-off claim; and, as defendant never sought

leave to amend in the district court, we refuse to consider that

new issue on appeal. Harlan’s waiver of the set-off claim obviates

analysis of whether he satisfied Section 51.003 of the Texas

Property Code, regarding determination of fair market value of

foreclosed property.

     KWP Financial submitted proper summary judgment evidence which

satisfied the requirements of a prima facie case for collection on

a promissory note.     Harlan’s evidentiary objections fail because

the promissory note itself is verbal conduct which falls outside

the prescription against hearsay.       The other evidence submitted by

KWP financial is cognizable, and sufficient, under Texas law, for

proof of a claim on a promissory note.      See, e.g., Zarges v. Bevan,

652 S.W.2d 368 (Tex. 1983).



                                                              AFFIRMED
