PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL ENTERPRISES,
INCORPORATED,
Plaintiff-Appellee,
                                                                     No. 98-1786
v.

MARVIN J. BARNES; VICKY BARNES,
Defendants-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-97-534-3-19)

Argued: September 23, 1999

Decided: January 6, 2000

Before WIDENER and MICHAEL, Circuit Judges, and Frank
MAGILL, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Magill wrote the opin-
ion, in which Judge Widener and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Mortimer Meyer Weinberg, III, WEINBERG &
BROWN, Sumter, South Carolina, for Appellants. Theodore Von
Keller, BERRY, QUACKENBUSH & STUART, Columbia, South
Carolina, for Appellee. ON BRIEF: Mortimer Meyer Weinberg, Jr.,
WEINBERG & BROWN, Sumter, South Carolina, for Appellants.
OPINION

MAGILL, Senior Circuit Judge:

This case arises out of a suit by National Enterprises, Inc.
(National) against Robert J. Barnes and Vicky Barnes (Barneses) on
a personal guaranty executed by the Barneses to secure a note issued
by Mid-Carolina Mobile Homes, Inc. (Mid-Carolina). The Barneses
appeal the district court's1 holding that the federal statute of limita-
tions found in the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, 12 U.S.C. § 1821(d)(14),2 applies to
assignees of the Resolution Trust Corporation (RTC) and that the doc-
trine of D'Oench Duhme & Co., Inc. v. FDIC, 315 U.S. 447 (1942),3
and 12 U.S.C. § 1823(e),4 bars the Barneses' claims that a condition
_________________________________________________________________
1 The Honorable Dennis W. Shedd, United States District Judge for the
District of South Carolina.
2 The relevant language in 12 U.S.C. § 1821(d)(14) states:

          (14) Statute of limitations for actions brought by conservator or
          receiver

          (A) In general

          Notwithstanding any provision of any contract, the applica-
          ble statute of limitations with regard to any action brought
          by the Corporation as conservator or receiver shall be--

           (i) in the case of any contract claim, the longer of--

           (I) the 6-year period beginning on the date the claim
          accrues; or

           (II) the period applicable under State law .. . .

FIRREA mentions "the Corporation," which is defined in the statute
as the FDIC. See 12 U.S.C. § 1811. The statute gives the RTC the same
rights and powers as the FDIC. See 12 U.S.C. § 1441a(b)(4)(A).
3 The D'Oench doctrine prohibits claims based upon agreements which
are not properly reflected in the official books or records of a failed bank
or thrift. See Resolution Trust Corp. v. Allen , 16 F.3d 568, 574 (4th Cir.
1994).
4 Section 1823(e) essentially codifies the common law D'Oench doc-
trine, but the two remain separate and independent grounds for decision.
See Young v. FDIC, 103 F.3d 1180, 1187 (4th Cir. 1997).

                     2
precedent to liability on the note and guaranty had not been per-
formed. The Barneses also appeal the district court's award, under the
provisions of the note, of attorneys' fees, costs, and accrued interest.
We affirm.

I.

On July 18, 1985, Standard Federal Savings and Loan of Colum-
bia, South Carolina (Standard Federal), loaned Mid-Carolina
$1,200,000.06. The note represented a line of credit extended by Stan-
dard Federal to Mid-Carolina designed to allow Mid-Carolina to pur-
chase new mobile homes and place the homes on its lot for sale.
Standard Federal was to be repaid, pro tanto, from each sale. As part
of the security for the loan, Standard Federal required that the
Barneses provide a personal guaranty of the debt to Standard Federal.
The appellants executed the guaranty on July 18, 1985.

On August 5, 1987, Mid-Carolina declared bankruptcy pursuant to
Chapter 7 of the United States Bankruptcy Code. Although Mid-
Carolina's bankruptcy triggered a provision in the note making it
immediately due and payable, Standard Federal took no steps to
enforce the guaranty against the Barneses. On August 2, 1991, the
RTC placed Standard Federal into conservatorship. On December 15,
1992, National purchased the Mid-Carolina note from the RTC,
together with all instruments and documents securing the note.

On March 3, 1997, National filed suit against the Barneses, con-
tending that they were liable under the guaranty contract for
$233,477.24, the balance due under the note. The appellants defended
on the grounds that the applicable statute of limitations had run and
that conditions precedent to liability under the note and guaranty had
not been performed. On November 25, 1997, the district court denied
the appellants' motion for summary judgment, holding that the appli-
cable statute of limitations is the six-year federal statute of limita-
tions, 12 U.S.C. § 1821(d)(14(A), and not a three-year South Carolina
statute of limitations, S.C. Code Ann. § 530(1) (Supp. 1997). On May
4, 1998, the district court granted National's motion for summary
judgment, holding that the D'Oench doctrine defeated appellants'
defenses to liability. On February 22, 1999, the district court granted

                    3
appellee attorneys' fees of $17,080.00, costs of $150.00, and
$200,736.85 in accrued interest under the provisions of the note.

II.

Appellants raise the issue of whether in South Carolina the statute
of limitations applicable to the RTC when it acts as receiver also
applies to its assignees. Once the RTC placed Standard Federal into
conservatorship on August 2, 1991, the federal six-year statute of lim-
itations found in 12 U.S.C. § 1821(d)(14)(A) applied to all claims by
the RTC arising from its position as conservator. For the RTC, the
statute of limitations on the Barneses' guaranty contract began to run
as of August 2, 1991. See 12 U.S.C. § 1821(d)(14)(B)(i).5 National,
as assignee of the RTC, brought suit against the Barneses on the guar-
anty contract on March 3, 1997. The appellants argue that Section
1821(d)(14) is personal to the RTC and that a three-year South Caro-
lina statute of limitations, S.C. Code Ann. § 530(1) (Supp. 1997),
applies to the assignees of the RTC and bars National's action.

To determine which statute of limitations applies, the court must
look to South Carolina law. See Federal Fin. Co. v. Hall, 108 F.3d
46, 50 (4th Cir. 1997). In Hall, because Section 1821(d)(14) is silent
with respect to its application to the RTC's assignees, the court was
faced with the issue of whether to apply federal common law or state
law to the issue. The court held that courts must look to state law to
determine the statute of limitations governing the rights of assignees
of the RTC because no federal policy presented a sufficient justifica-
tion for a federal common law rule of decision. Id. at 48-49.

South Carolina law is clear that the right to sue under the statute
of limitations in Section 1821(d)(14) is not personal to the RTC and
_________________________________________________________________
5 12 U.S.C. § 1821(d)(14)(B) states:

           For purposes of subparagraph (A), the date on which the stat-
          ute of limitations begins to run on any claim described in such
          subparagraph shall be the later of-

           (i) the date of the appointment of the Corporation as conserva-
          tor or receiver; or

          (ii) the date on which the cause of action accrues.

                    4
is available to all assignees or transferees of the RTC. Twelfth RMA
Partners, L.P. v. National Safe Corp., 335 S.C. 635, 518 S.E.2d 44,
47 (Ct. App. 1999). Therefore, under South Carolina law, Section
1821(d)(14) applies to National's action against the Barneses and
National's suit is not time barred.6

III.

The appellants argue that Standard Federal7 failed to comply with
certain conditions precedent to liability under the note and guaranty.
They claim that the failure to comply with the conditions precedent
either voided the guaranty entirely or greatly reduced the amount of
appellants' liability pursuant to the guaranty. Appellants claim that
language on the face of the note indicating that repayment terms
would be governed by, among other things, "other repayment terms
as shown in manufacturer's repurchase agreements," created a duty
for Standard Federal that was a condition precedent to Mid-Carolina's
liability under the note. The appellants claim that Standard Federal's
duty, in the event that Mid-Carolina declared bankruptcy, would be
to use the repurchase agreements to call on the manufacturers of the
mobile homes in question to repurchase the mobile homes at invoice
price and then apply the proceeds to the note.

Appellants can only prevail if they establish the following: (1) that
their claims about the character and meaning of the repurchase agree-
ment clause are correct, and (2) that the D'Oench doctrine, as delin-
eated by the Supreme Court in D'Oench, Duhme & Co, Inc. v. FDIC,
315 U.S. 447 (1942), and its statutory equivalent, 12 U.S.C. § 1823(e),8
_________________________________________________________________
6 Appellants also argue that even if section 1821(d)(14) applies, the
note in question was a demand note and, consequently, the statute of lim-
itations began to accrue on July 18, 1985, the date of the note. Appel-
lants' characterization of the note as a demand note was introduced for
the first time on appeal and the argument is, therefore, deemed waived.
See Skipper v. French, 130 F.3d 603, 610 (4th Cir. 1997) (stating the rule
that "[o]rdinarily, for very good reasons, we do not decide issues on the
basis of theories first raised on appeal").
7 Because appellants' defenses are meritless, we need not decide appel-
lants' contention that National is not a holder in due course of the guar-
anty.
8 Congress has substantially codified the elements of the common-law
D'Oench doctrine in 12 U.S.C. § 1823(e), providing in pertinent part:

                    5
do not bar the action. Because the appellants cannot show that the
first prong of the analysis has been satisfied, we need not decide
whether the D'Oench doctrine would bar appellants' claims.9

The appellants are unable to produce any evidence indicating that
the repurchase agreements in question create the obligations that they
claim. Even if the vague reference in the note that"[o]ther repayment
terms as shown in manufacturers repurchase agreements" is sufficient
to satisfy the D'Oench doctrine's requirement that agreements be
properly reflected in the bank's records, the appellants have not pro-
duced the repurchase agreements in question. Marvin J. Barnes' self-
_________________________________________________________________

           No agreement which tends to diminish or defeat the interest of
          the Corporation in any asset acquired by it...as receiver of any
          insured depository institution [ ] shall be valid against the Corpo-
          ration 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.

9 There is also a serious question of whether, assuming that appellants'
representations about the repurchase agreements are valid, the guaranty
contract incorporates the repurchase agreements as a condition precedent
to liability. South Carolina courts have said that the rights and duties of
guarantors are distinct from the rights and duties of makers of notes and
a guaranty of payment is a contract separate and distinct from the origi-
nal note. See Citizens and Southern Nat'l Bank v. Lanford, 313 S.C. 540,
443 S.E.2d 549, 551 (1994) (holding that the guarantor was not a party
to the note and could not avail himself of defenses based on impairment
of collateral). Here, however, appellants have failed to produce sufficient
evidence indicating the existence of a condition precedent, and we need
not decide whether the condition precedent would apply to the guaranty
contract.

                    6
serving affidavit describing the content of the repurchase agreements
is not enough to defeat National's motion for summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (holding
that to withstand a motion for summary judgment, the non-moving
party must proffer sufficient evidence on which a reasonable jury
could find in its favor).

IV.

The appellants appeal the district court's award of attorneys' fees,
costs, and accrued interest under the provisions of the note10 on the
basis that National's failure to utilize the repurchase agreements voids
any obligations of appellants under the note and guaranty. Because
appellants' repurchase agreement defense is without merit, the district
court's award is affirmed.

CONCLUSION

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

AFFIRMED
_________________________________________________________________
10 The note provided, in pertinent part, that "[u]npaid principal and
interest due at maturity, or upon demand, shall bear interest at the rate
set forth above until paid in full. In the event that this Note is not paid
at maturity . . . the undersigned agrees to pay all costs and expenses of
the Holder in the collection of this Note, including reasonable attorneys'
fees."

                    7
