Full opinion text
ANDERSON, Circuit Judge: I. INTRODUCTION In this decision, we consider whether the district court correctly granted a motion to dismiss in favor of appellee Federal Deposit Insurance Corporation (“FDIC”) based upon the D’Oench doctrine. See D’Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). For the reasons that follow, we affirm the judgment of the district court. II. FACTS This case arises from the banking relationship of appellants Motorcity of Jacksonville, Ltd., Motorcity of Jacksonville, Inc., and David S. Hess (collectively “Motoreity”) with the financial institution of Southeast Bank, N.A. (“Southeast”). We assume the following allegations from Motorcity’s pleadings to be true for purposes of resolving the FDIC’s motion to dismiss. In 1986, Motorcity and Southeast negotiated a floor plan financing agreement, under which Southeast agreed to lend Motoreity funds to purchase inventory for its used car dealership. During the negotiations, Motoreity orally informed Southeast that appellant David Hess and other Motoreity investors lacked experience in running a car dealership and planned to operate the dealership as absentee owners. Southeast orally assured Motoreity that its personnel were experienced with floor plan financing and that “the bank ‘knew what it was doing.’ ” R2-58 Ex. 1 ¶ 14. Of particular concern to both Southeast and Motoreity were “out-of-trust” sales, which occur whenever a dealership fails to use the proceeds from the sale of a vehicle to repay the loan designated for that vehicle. Continued unchecked, such out-of-trust sales could pose a threat to a dealership’s financial viability. Motoreity and Southeast executed a written floor plan financing agreement in June 1987. Pursuant to the floor plan financing agreement, Southeast retained the right to audit Motorcity’s records. Southeast hired an independent contractor to audit Motoreity on a monthly basis. Through these audits, Southeast allegedly discovered a pattern of out-of-trust sales at the dealership: rather than repaying the floor plan loans, Motorcity’s managers were using the sales proceeds from vehicles to pay themselves unearned bonuses. Although Southeast or its auditor sent summary audit reports to Motoreity, the bank failed to disclose these out-of-trust sales to Motoreity. In February 1989, Motoreity learned from its newly-hired general manager that the dealership was out-of-trust more than $400,-000. Motoreity immediately notified Southeast of the situation. Southeast demanded immediate payment for the entire out-of-trust amount, but Motoreity was unable to meet the bank’s demand. Southeast took possession of Motorcity’s collateral, including the dealership itself and $375,000 in certificates of deposit. Motoreity repaid all of its loans to Southeast by April 1990. III. PROCEEDINGS BELOW Motoreity sued Southeast and one of its employees in Florida state court, alleging breach of fiduciary duty, breach of oral contract, and negligence. Less than a year later, in September 1991, the Office of the Comptroller of the Currency declared Southeast insolvent and appointed the FDIC as receiver for the failed bank. The FDIC was substituted for Southeast as defendant in the state court action, and the FDIC removed the case to federal court. Motoreity amended its complaint to state a claim only for breach of written contract. The district court dismissed this amended complaint for failure to state a claim upon which relief could be granted. The court found that the floor plan financing agreement gave Southeast the right, but not the duty, to audit Motoreity; thus Southeast was under no contractual obligation to inform Motoreity of the out-of-trust sales. The court further ruled that the D’Oench doctrine and 12 U.S.C. § 1823(e)(1) required any agreement between a failed financial institution and its customer to be in writing; consequently, any claims for breach of oral contract were barred. Finally, the court held that the D’Oench doctrine also foreclosed Motorcity’s putative tort claims. The court reasoned that “[t]he genesis of this action is the Southeast floor plan financing agreement, whose written provisions do not support a breach of contract claim against the FDIC. No amount of artful pleading, including further amendments to the complaint, can alter this result.” R2-52-8. Motorcity moved for a rehearing and for leave to amend its complaint to add tort claims for negligence and for breach of fiduciary duty to notify. The district court denied both motions. In its omnibus order, the court reiterated that the D’Oench doctrine barred all oral contract claims, including those claims recast as tort actions by “ ‘artful pleading.’” R2-67-1-2. On appeal, a panel of this court held that Motorcity’s state law tort claims for negligence and for breach of fiduciary duty were free standing torts, not barred by the D’Oench doctrine. Motorcity of Jacksonville, Ltd. v. Southeast Bank, N.A., 39 F.3d 292 (11th Cir.1994). The FDIC’s petition for en banc hearing was granted, thus vacating the panel opinion. 58 F.3d 589 (11th Cir.1995). IV. STANDARD OF REVIEW Motorcity appeals solely the district court’s denial of its motion to file a second amended complaint to add its proposed tort claims. Our review standard for a district court’s denial of a motion to amend a complaint is abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir.1989). After a responsive pleading has been filed, subsequent amendments are permissible only with leave of court, which “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This liberal policy of allowing amendments under Rule 15(a) “circumscribes the exercise of the district court’s discretion; thus, unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” Shipner, 868 F.2d at 407; see also Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir.1993) (holding that “a justifying reason must be apparent for denial of a motion to amend”) (emphasis added). In this case, the district court denied Motorcity’s motion to amend based on the court’s legal determination that Motorcity’s proposed tort claims were barred by the D’Oench doctrine. The futility of a proposed amended complaint can be a justifiable reason for denying leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Moore, 989 F.2d at 1131. When a district court denies leave to amend a complaint because of futility, we review de novo. Keweenaw Bay Indian Community v. State, 11 F.3d 1341, 1348 (6th Cir.1993); see also In re Geri Zahn, Inc., 25 F.3d 1539, 1542 (11th Cir.1994) (explaining that the applicability of the D’Oench doctrine is a question of law, subject to de novo review); Freer v. Dugger, 935 F.2d 213, 216 (11th Cir.1991) (“Regarding the standard of review, conclusions of law by the district court are not binding on appellate courts and this court is free to substitute its judgment for the district court’s on matters of law.”) Accordingly, we review de novo the district court’s determination that Motorcity’s tort claims are barred by the D’Oench doctrine and its statutory counterpart, 12 U.S.C. § 1823(e)(1). V. DISCUSSION Our analysis begins with an examination of the D’Oench doctrine’s origins and with the leading ease itself, D’Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). In that case, the Supreme Court created a federal common law doctrine of estoppel to protect the FDIC from defenses raised by debtors based on “secret agreements” with failed banks. D’Oench involved a securities dealer who sold a bank some bonds which later became worthless. To prevent the past due bonds from appearing among the assets of the bank, the dealer executed a demand note with the bank and entered into a separate agreement with the bank that the note would not be called for payment. The FDIC later acquired the note in a purchase and assumption transaction. When the FDIC demanded payment on the note, the maker defended on the basis of the side agreement with the bank, in which the bank promised not to call the note for payment. Id. at 454, 62 S.Ct. at 678. The lower courts applied Illinois state law and held that the FDIC was entitled to recover on the note as a “holder in due course.” Id. at 455, 62 S.Ct. at 678. The Supreme Court rejected the lower courts’ use of state law and instead created a federal common law rule by drawing an analogy to provisions of the Federal Reserve Act, which “reveal[ed] a federal policy to protect [the FDIC] and the public funds which it administers against misrepresentations as to the securities or other assets in the portfolios of the banks which [the FDIC] insures or to which it makes loans.” Id. at 457, 62 S.Ct. at 679. The Court held that a “secret agreement” outside the documents contained in the bank’s records would not operate as a defense against a suit by the FDIC on the note. Id. at 459, 62 S.Ct. at 680. Significantly, the Court added that the maker of the note did not have to intend to deceive anyone; it was sufficient “that the maker lent himself to a scheme or arrangement whereby the banking authority ... was likely to be misled.” Id. at 460, 62 S.Ct. at 681. Eight years later, Congress partially codified the holding in D’Oench as section 2(13)(e) of the Federal Deposit Insurance Act of 1950, 64 Stat. 873, 889, as amended, 12 U.S.C. § 1823(e)(1), which provided: No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank. Thus, “[t]he statute makes the common law principle both more encompassing and more precise.” FDIC v. O’Neil, 809 F.2d 350, 353 (7th Cir.1987). By allowing the FDIC to rely on the records of the bank, the specific recording requirements of § 1823(e) enable the FDIC to determine quickly whether to engage in a purchase and assumption transaction, or whether to liquidate the failed bank and pay off insured deposits. The Supreme Court explained: [This] evaluation, in particular, must be made “with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services.” Neither the FDIC nor state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions. Langley v. FDIC, 484 U.S. 86, 91-92, 108 S.Ct. 396, 401, 98 L.Ed.2d 340 (1987) (quoting Gunter v. Hutcheson, 674 F.2d 862, 865 (11th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982) (citations omitted)). In addition to requiring an alleged agreement to appear in the bank’s records, § 1823(e) requires the agreement to “have been executed ‘contemporaneously’ with the making of the note and to have been approved by officially recorded action of the bank’s board or loan committee.” Id. at 92, 108 S.Ct. at 401. The Court explained: These ... requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure. Id. However, it is “clear that the D’Oench doctrine applies even where the customer is completely innocent of any bad faith, recklessness, or negligence.” Baumann v. Savers Fed. Sav. & Loan Ass’n, 934 F.2d 1506, 1515 (11th Cir.1991), cert. denied, 504 U.S. 908, 112 S.Ct. 1936, 118 L.Ed.2d 543 (1992). Thus, § 1823(e) and the D’Oench doctrine encourage “banks and their customers [to] include the entire extent of their obligations in the bank’s records.” Id.; see also Bell & Murphy & Assoc. v. Interfirst Bank Gateway, N.A., 894 F.2d 750, 754 (5th Cir.) (“The D’Oench, Duhme doctrine ... favors the interests of depositors and creditors of a failed bank, who cannot protect themselves from secret agreements, over the interests of borrowers, who can.”), cert. denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990); In re NEW Commercial Paper Litigation, 826 F.Supp. 1448, 1461-62 (D.D.C.1992) (describing D’Oench and § 1823(e) as “a regime that places the risk on borrowers if they do not get all of the terms of their agreements in writing”). As originally enacted in 1950, § 1823(e)(1) paralleled the facts of the D’Oench case itself: it applied only to the FDIC in its corporate capacity when it purchased bank assets from its receivership division. Vernon v. BTC, 907 F.2d 1101, 1105 (11th Cir.1990). However, the federal policy expressed in the D’Oench decision “applies in virtually all cases where a federal depository institution regulatory agency is confronted with an agreement not documented in the institution’s records.” OPS Shopping Ctr., Inc. v. FDIC, 992 F.2d 306, 308 (11th Cir.1993) (quoting Baumann, 934 F.2d at 1510). Courts therefore applied the federal common law D’Oench doctrine to protect certain entities not covered by the language of § 1823(e)(1)—including, for example, the FDIC as receiver, the Federal Savings and Loan Insurance Corporation (“FSLIC”), and transferees of assets (such as bridge banks) from banking regulatory agencies. See, e.g., FSLIC v. Two Rivers Assocs., Inc., 880 F.2d 1267, 1274, 1276-77 (11th Cir.1989) (holding that the federal common law D’Oench doctrine protects the FSLIC and the FDIC in both receiver and corporate capacities); Newton v. Uniwest Fin. Corp., 967 F.2d 340, 347 (9th Cir.1992) (extending the D’Oench doctrine to a private bank, as the FSLIC’s successor-in-interest in a note); Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 49 (1st Cir.1991) (per curiam) (citing cases for the proposition that “courts have consistently applied the [D’Oench] doctrine to those situations where the FDIC was acting in its capacity as receiver”); Kilpatrick v. Riddle, 907 F.2d 1523, 1528 (5th Cir.1990) (extending the D’Oench doctrine to the FDIC’s assignee, a bridge bank), cert. denied sub nom. Rogers v. FDIC, 498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991); Porras v. Petroplex Sav. Ass’n, 903 F.2d 379, 381 (5th Cir.1990) (extending the D’Oench doctrine’s protection to transferees of assets from the FSLIC in purchase and assumption transactions); FDIC v. First Nat'l Fin. Co., 587 F.2d 1009, 1012 (9th Cir.1978) (rejecting the argument that the D’Oench doctrine does not apply to the FDIC as receiver). Courts also applied the D’Oench bar to secret agreements between borrowers and a subsidiary of the failed financial institution under the regulatory agency’s control. See Victor Hotel Corp. v. FCA Mortg. Corp., 928 F.2d 1077, 1083 (11th Cir.1991); Robinowitz v. Gibraltar Sav., 23 F.3d 951, 956 (5th Cir.1994) (holding that D’Oench applies to secret side agreements made by subsidiaries and sub-subsidiaries of the failed institution in receivership), cert. denied, — U.S. -, 115 S.Ct. 725, 130 L.Ed.2d 630 (1995); Sweeney v. RTC, 16 F.3d 1, 4 (1st Cir.) (per curiam) (holding that the D’Oench doctrine extends to claims involving a wholly owned subsidiary of the failed financial institution in receivership), cert. denied, — U.S. -, 115 S.Ct. 291, 130 L.Ed.2d 206 (1994); Oliver v. RTC, 955 F.2d 583, 585-86 (8th Cir.1992) (holding that the “D’Oench doctrine extends broadly to cover any secret agreement adversely affecting the value of a financial interest that has come within the RTC’s control as receiver of a failed financial institution” including the financial interest of a wholly-owned subsidiary). Furthermore, as originally enacted, § 1823(e)(1) generally applied only to preclude defenses raised by borrowers to avoid repaying their loans. Thigpen v. Sparks, 983 F.2d 644, 647-48 (5th Cir.1993). Courts applied the federal common law D’Oench doctrine to bar the assertion of affirmative claims against the FDIC, including claims sounding in tort. See RTC v. Dunmar Corp., 43 F.3d 587, 595 (11th Cir.) (en bane) (holding that “D’Oench bars defenses and affirmative claims whether cloaked in terms of contract or tort, as long as those claims arise out of an alleged secret agreement” (quoting Timberland, 932 F.2d at 50)), cert. denied sub nom. Jones v. RTC, — U.S. -, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); Beighley v. FDIC, 676 F.Supp. 130, 132 (N.D.Tex.1987) (“To allow a claim against the FDIC asserting the very grounds that could not be used as a defense to a claim by the FDIC is to let technicality stand in the way of principle.”), on reh’g, 679 F.Supp. 625 (N.D.Tex.1988), aff'd, 868 F.2d 776 (5th Cir.1989). In Dun-mar, we reiterated this circuit’s D’Oench rule, which reflects the judicial extensions of the doctrine over the years: In a suit over the enforcement of an agreement originally executed between an insured depository institution and a private party, a private party may not enforce against a federal deposit insurer any obligation not specifically memorialized in a written document such that the agency would be aware of the obligation when conducting an examination of the institution’s records. Id. at 593 (quoting OPS, 992 F.2d at 308 and Baumann, 934 F.2d at 1515). In the wake a mounting crisis in the banking and thrift industry, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183, inter alia, “to give the FDIC power to take all actions necessary to resolve the problems posed by a financial institution in default.” FDIC v. Wright, 942 F.2d 1089, 1095-96 (7th Cir.1991) (quoting H.R.Rep. No. 54(1), 101st Cong., 1st Sess. 330, reprinted in 1989 U.S.Code Cong. & Admin.News 126), cert. denied, 504 U.S. 909, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992). FIRREA substantially codified several of the significant common law developments in the D’Oench doctrine, expanding the applicability of § 1823(e) to the FDIC in its receivership capacity, to the newly-created Resolution Trust Corporation (RTC) in either its corporate or receivership capacity, and to bridge banks. FIRREA also added 12 U.S.C. § 1821(d)(9)(A), which explicitly extends the protection of § 1823(e) to affirmative claims against the banking authority. It provides that “any agreement which does not meet the requirements set forth in § 1828(e) ... shall not form the basis of, or substantially comprise, a claim against the receiver or the Corporation.” The substance of § 1823(e)— i.e., the range of secret agreements prohibited by the statute — was left untouched. Motoreity makes several arguments in its effort to prevent the application of the D’Oench doctrine to its claims against the FDIC. First, Motoreity argues that the federal common law D’Oench doctrine has been preempted by statute and that therefore the FDIC must rely exclusively on §§ 1821(d)(9)(A) and 1823(e)(1), the statutory cousins of the D’Oench doctrine. Second, Motoreity argues that §§ 1821(d)(9)(A) and 1823(e)(1) bar only those claims that impair the FDIC’s interest in a specific bank asset. Because Motoreity paid off its loan to Southeast before the FDIC’s appointment as receiver, Motoreity argues that these statutory provisions do not apply to its claims. Third, Motoreity argues that its claims against the FDIC are “free standing tort claims,” which are not barred by the D’Oench doctrine. Finally, even if the D’Oench doctrine prevents any reliance on oral agreements or representations, Motoreity suggests that its state law tort claims are still viable. We address each of Motoreity’s arguments in turn. A. Has the Federal Common Law D’Oench Doctrine Been Preempted by Statute? We first address Motorcity’s argument that the federal common law D’Oench doctrine has been preempted by statute. In Murphy v. FDIC, 61 F.3d 34 (D.C.Cir.1995), the D.C. Circuit recently held that the Supreme Court’s reasoning in O’Melveny & Myers v. FDIC, — U.S. -, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994), leads “ineluctably” to the conclusion that the common law D’Oench doctrine has been preempted. Id. at 38; see also DiVall Insured Income Fund Ltd. Partnership v. Boatmen’s First Nat’l Bank of Kansas City, 69 F.3d 1398, 1402 (8th Cir.1995) (following Murphy’s reasoning and holding that the federal holder in due course and D’Oench doctrines have been preempted). We disagree with the analysis of the D.C. and the Eighth Circuits and hold that the federal common law D’Oench doctrine has not been preempted by statute. Our analysis of the preemption issue begins with a discussion of the effect of federal statutes on the federal common law, in light of the role that the federal common law plays in our system. In Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-19, 10 L.Ed. 865 (1842), the Supreme Court held that, in the absence of a state statutory or constitutional provision, federal courts sitting in diversity should not apply a state court’s common law decisions. Rather, federal courts should fashion their own federal common law rules by consulting “the general principles and doctrines of ... jurisprudence.” Id. at 19. Almost a century later, in Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-23, 82 L.Ed. 1188 (1938), the Supreme Court expressly overruled Swift, holding unconstitutional the federal common law regime created by that decision. Writing for the Court, Justice Brandéis flatly declared: “There is no federal general common law.” The Court explained that the Swift doctrine represented an unconstitutional invasion by the federal courts into the powers “reserved by the Constitution to the several states.” Id. at 79-80, 58 S.Ct. at 823. However, the holding in Erie did not destroy all types of federal common law. Since Erie, the Supreme Court “has recognized the need and authority in some limited areas to formulate what has come to be known as ‘federal common law.’ ” Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981). In particular, federal courts have created and applied federal common law when necessary to protect certain “uniquely federal interests.” Boyle v. United Technologies Corp., 487 U.S. 500, 504, 108 S.Ct. 2510, 2514, 101 L.Ed.2d 442 (1988) (holding that federal common law governs the tort liability of a helicopter manufacturer to a deceased pilot, where the manufacturer supplies the helicopters to the federal government); see also United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-27, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979) (holding that the priority of liens stemming from federal lending programs is a matter of federal common law); Howard v. Lyons, 360 U.S. 593, 597, 79 S.Ct. 1331, 1333-34, 3 L.Ed.2d 1454 (1959) (creating a federal common-law privilege that protects federal officers from libel and defamation suits arising out of statements made in the course of duty); Clearfield Trust Co. v. United States, 318 U.S. 363, 366, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943) (holding that the rights and duties of the United States on commercial paper which it issues are governed by federal law and that “[i]n the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.”). Courts often examine the policies expressed by Congress in statutes in order to identify those “uniquely federal interests” that make necessary the development of federal common law. See, e.g., Kimbell Foods, 440 U.S. at 727, 99 S.Ct. at 1458 (describing federal common law as a means to “fill the interstices of federal legislation”); United States v. Little Lake Misere Land Co., Inc., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973) (refusing to apply state law to abrogate federal government contracts to acquire land for public use, in part because doing so “would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act and indeed all other federal land acquisition programs”). In these cases, the use of federal common law effectuates congressional intent and resembles the task of statutory interpretation. The D’Oench case itself is a leading example of the Court’s use of federal statutes to identify those “uniquely federal interests” that require the creation of federal common law. See D’Oench, 315 U.S. at 456-57, 62 S.Ct. at 679 (analyzing statutory provisions that “reveal a federal policy to protect [the FDIC] and the public funds which it administers against misrepresentations as to the securities or other assets in the portfolios of the banks which [the FDIC] insures”). Because the application of federal common law is so closely tied to congressional intent, the task of determining whether a particular federal statute displaces existing federal common law requires courts to inquire carefully into the purposes of the legislation. Courts must be mindful that “the federal lawmaking power is vested in the legislative, not the judicial branch of government,” Northwest Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 95, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981), and that federal common law is often merely a “necessary expedient” in instances in which “Congress has not spoken to a particular issue.” City of Milwaukee v. Illinois, 451 U.S. 804, 313-14, 101 S.Ct. 1784, 1790-91, 68 L.Ed.2d 114 (1981) (“Milwaukee II”) (emphasis added). Accordingly, courts should not require from Congress “the same sort of evidence of a clear and manifest purpose” to preempt as they require in considering whether a federal statute displaces state law. Id. at 316-17, 101 S.Ct. at 1792. At the same time, “Statutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 1634, 123 L.Ed.2d 245 (1993) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952)). Therefore, although “Congress need not ‘affirmatively proscribe’ the common law doctrine at issue,” its purpose to preempt existing federal common law at a minimum must be “evident.” Texas, 507 U.S. at 534, 113 S.Ct. at 1634-35. In Murphy, without mentioning the presumption that federal common law principles survive the enactment of federal legislation, the D.C. Circuit held that FIRREA’s comprehensive nature caused the federal common law D’Oench doctrine to disappear. 61 F.3d at 40. The court reached this startling conclusion by relying almost exclusively on certain language in the Supreme Court’s decision in O’Melveny & Myers v. FDIC, — U.S. -, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). We disagree with Murphy’s reliance on O’Melveny. In O’Melveny, the FDIC as receiver for a failed savings and loan (S & L) brought a malpractice lawsuit against the S & L’s former law firm, stating causes of action under California law for professional negligence and breach of fiduciary duty. Id. at -, 114 S.Ct. at 2052. The FDIC alleged that the law firm failed to inform the S & L of the illegal acts of the S & L’s controlling officers. Id. The law firm defended by arguing that, under California law, knowledge of the conduct of the S & L’s controlling officers must be imputed to the S & L, and hence to the FDIC, which, as receiver, stood in the S & L’s shoes. The FDIC urged the Supreme Court to create a new federal common law rule to govern the imputation of knowledge to the FDIC. See id. The Supreme Court began by stating that it “would [not] adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left to the disposition provided by state law.” Id. at -, 114 S.Ct. at 2054. The Court analyzed 12 U.S.C. § 1821(d)(2)(A)(i), as amended by FIRREA, which defines the powers and duties of the FDIC as receiver by providing that the FDIC “shall ... by operation of law, succeed to — all rights, titles, powers, and privileges of the insured depository institution....” The Court construed § 1821(d)(2)(A)(i) as an exclusive grant of rights to the FDIC as receiver and thus held that it could not be “supplemented or modified by federal common law.” Id. To support this conclusion, the Court listed several “provisions of FIRREA which specifically create special federal rules of decision regarding claims by, and defenses against, the FDIC as receiver.” Id. The statute having carved out specific areas of federal interest to be subject to federal rules, the Court inferred “[ijnclusio unius, exclusio alterius." Id. Although O’Melveny never mentions the D’Oench doctrine directly, the Court included one of D’Oench’s statutory cousins— § 1821(d)(9)(A) — in its list of special federal rules of decision. In Murphy, the D.C. Circuit concluded that the Supreme Court “necessarily decided the D’Oench question” by including § 1821(d)(9)(A) in this list. 61 F.3d at 39. The court in Murphy explained that “the inclusion of § 1821(d)(9) in the FIRREA implies the exclusion of overlapping federal common law defenses not specifically mentioned in the statute — of which the D’Oench doctrine is one.” Id. We believe that Murphy erred in relying on O’Melveny. The question presented in O’Melveny was whether the federal courts should create a new federal common-law doctrine in an area in which Congress had not expressed any special concern, nor indicated that a special federal rule of decision should govern. In this case, the question presented is not whether a new rule should be invented, but whether Congress intended to abrogate the previously-established federal common-law D’Oench doctrine, which doctrine operates in an area of special federal concern as recognized by Congress, the Supreme Court, and the lower federal courts. The O’Melveny analysis does not apply to this question’ We believe that United States v. Texas, 507 U.S. 529,113 S.Ct. 1631,123 L.Ed.2d 245 (1993), rather than O’Melveny, provides the appropriate guidance for courts in their efforts to determine whether Congress intended that FIRREA abrogate the previously-established and longstanding federal common-law D’Oench doctrine. Just a year before O’Melveny, the Supreme Court in Texas addressed the question of whether Congress intended to abrogate a pre-existing and longstanding federal common-law doctrine. There, the Court held that the previously-established federal common-law doctrine was presumed to survive unless a congressional intent to the contrary was evident. The Court expressly rejected the argument that the “presumption favoring retention of existing law is appropriate only with respect to state common law.” The Court explained: [Tjhere is no support in our cases for the proposition that the presumption has no application to federal common law.... “[Cjourts may take it as a given that Congress has legislated with an expectation that the [common law] principle will apply except “when a statutory purpose to the contrary is evident.’ ” Id. at 534, 113 S.Ct. at 1634-35 (quoting Astoria Fed. Sav. and Loan Ass’n v. Solimi-no, 501 U.S. 104, 108, 111 S.Ct. 2166, 2170, 115 L.Ed.2d 96 (1991) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952))). Motorcity attempts to overcome the presumption that the federal common law D’Oench doctrine survived FIRREA by arguing that Congress’ “evident” purpose was to displace the D’Oench doctrine. Motorcity points out that FIRREA is a comprehensive piece of legislation, and contends that §§ 1821(d)(9)(A) and 1823(e)(1) displace the D’Oench doctrine because those statutes “speak directly” to some of the questions previously addressed by the federal common law. In ascertaining whether the purpose of FIRREA was to eliminate the D’Oench doctrine, Motorcity is correct in suggesting that we should attach significance to the comprehensiveness of the statutory scheme, and give full recognition to the fact that federal common law is subject to the paramount authority of Congress. Milwaukee II, 451 U.S. at 313, 101 S.Ct. at 1791. In some cases, the application of federal common law might interfere with a statutory scheme that is comprehensive in scope. See, e.g., id. at 317, 326, 101 S.Ct. at 1792, 1797 (describing the 1972 amendments to the Federal Water Pollution Control Act as a “comprehensive regulatory program supervised by an expert administrative agency” and explaining at length that the federal common law rule in question “would be quite inconsistent with this scheme”); Northwest Airlines, 451 U.S. at 97, 101 S.Ct. at 1583-84 (explaining that the enactment of a “comprehensive legislative scheme including an integrated system of procedures for enforcement” indicates that Congress’ omission of a particular remedy was deliberate and declining to “fashion new remedies that might upset carefully considered legislative programs”). More precisely, federal courts are not free to contradict a congressional policy choice that “speaks directly” to a particular question previously answered by federal common law. See Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581 (1978) (holding that, although. “Congress has never enacted a comprehensive maritime code,” federal courts may not award “loss of society” damages under general maritime law because the Death on the High Seas Act expressly prohibits recovery of such damages). Thus, “the question whether a previously available federal common-law action has been displaced by federal statutory law involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law.” Milwaukee II, 451 U.S. at 315 n. 8, 101 S.Ct. at 1792 n. 8. Applying this analysis, several considerations persuade us that Congress in enacting FIRREA in 1989 did not intend to preempt the federal common law D’Oench doctrine. In §§ 1821(d)(9)(A) and 1823(e)(1), Congress specifically carved out as an area of special federal concern the area involving the protection of the FDIC from secret or oral agreements. Thus, the proper question to ask is whether Congress intended §§ 1821(d)(9)(A) and 1823(e)(1) to eliminate the entire body of federal common law known as the D’Oench doctrine. As noted above, United States v. Texas, 507 U.S. 529, 534-36, 113 S.Ct. 1631, 1635, 123 L.Ed.2d 245 (1993) reaffirmed the principles that Congress legislates against the background of the existing common law, and that Congress has legislated with an expectation that that law will apply except when a statutory purpose to the contrary is evident. Id. at 534, 113 S.Ct. at 1635. In Texas, the long-established federal common law was that all parties, including states, who owed contractual debts to the federal government were obligated to pay prejudgment interest. The statute at issue, the Debt Collection Act of 1982, codified that obligation with respect to private debtors and made the obligation more specific and more onerous. The statute expressly defined the “persons” subject to the statute, and expressly excluded state and local governments and agencies. 31 U.S.C. § 3701(c). The Supreme Court rejected the argument that Congress intended to preempt the preexisting federal common law, thus relieving states of their obligation under pri- or law to pay prejudgment interest. The Court held that the statute did not “speak directly” to the obligation of the states, but rather was intended to reach only the obligations of private debtors. The Court was influenced by the evident purpose of the statute — to increase the efficiency of the government’s debt collections. The contrary reading “would have the anomalous effect of placing delinquent States in a position where they had less incentive to pay their debts.” Id. at 537, 113 S.Ct. at 1636. The Court rejected that interpretation, which would undermine the evident purpose of the statute. Similarly, the question in the instant case is whether or not it is “evident” that Congress intended to preempt the longstanding federal common law D’Oench doctrine. There is no indication in the statute or the legislative histories of either the 1950 or the 1989 acts that Congress intended to preempt the federal common law. See FDIC v. McClanahan, 795 F.2d 512, 514 n. 1 (5th Cir.1986) (noting that the legislative history of the 1950 act does not mention the D’Oench decision and concluding that Congress did not preempt D’Oench by enacting § 1823(e)); In re NBW Commercial Paper Litigation, 826 F.Supp. 1448, 1459 (D.D.C.1992) (noting that the legislative history of FIRREA is “scant” with respect to the D’Oench doctrine and finding no indication that Congress intended to preempt it). Just as it had done in 1950, Congress in FIRREA incorporated parts of the evolving common law D’Oench doctrine, e.g., its application in both the corporate and receivership capacities, and its application to affirmative claims as well as defenses. Although the legislative history with respect to these two sections of the mammoth FIRREA is sparse, what little there is suggests that Congress intended no change in existing law. See, e.g., H.R.Rep. No. 54(1), 101st Cong., 1st Sess. 332, reprinted in 1989 U.S.Code Cong. & Admin.News 128 (describing FIRREA’s addition of § 1821(d)(9)(A): “In general [FIRREA] provides, as the FDI Act presently provides, that no agreement can form the basis of a claim against the Corporation or the conservator or receiver unless it is in writing and properly approved and maintained in the records of the institution.”) (emphasis added); id at 335, 1989 U.S.Code Cong. & Admin.News 131 (describing the provision of FIRREA allowing the FDIC in its receivership capacity to invoke § 1823(e) as a clarification of prior law). Significantly, neither FIRREA in general, nor §§ 1821(d)(9)(A) and 1823(e)(1) in particular, comprehensively address the substance of the federal common law D’Oench doctrine. The particular argument that Motorcity raises in this ease — i.e., that §§ 1821(d)(9)(A) and 1823(e)(1) do not bar claims based on oral agreements with a failed bank if the borrower’s loan is repaid before the FDIC takes over — reflects an issue which was not addressed at all by Congress in 1989. Congress did not focus on the range of secret agreements with respect to which the FDIC would be afforded protection. Rather, in this regard, the only relevant language is in § 1823(e)(1), which Congress merely carried over from the statute originally enacted in 1950. We therefore see no indication either in the language of the statute itself or in the legislative history that Congress undertook a comprehensive examination of the federal common law D’Oench doctrine, or made any attempt to address comprehensively that vast doctrine. “[S]ueh reticence while contemplating an important and controversial change in existing law is unlikely.... At the very least, one would expect some hint of a purpose to work such a change, but there was none.” Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 266-67, 99 S.Ct. 2753, 2759-60, 61 L.Ed.2d 521 (1979). Congress’ purpose in passing FIRREA was to strengthen the FDIC’s long-established right to protect itself from secret agreements executed by failing banks. See Gibson v. RTC, 51 F.3d 1016, 1020 (11th Cir.1995) (“Congress enacted FIRREA in 1989 in response to the growing crisis in the nation’s banking and savings and loan industries.”). One important goal of FIRREA was “to give the FDIC power to take all actions necessary to resolve the problems posed by a financial institution in default.” FDIC v. Wright, 942 F.2d 1089, 1095-96 (7th Cir.1991) (quoting H.R.Rep. No. 54(1), 101st Cong., 1st Sess. 330, reprinted in 1989 U.S.Code Cong. & Admin.News 126), cert. denied, 504 U.S. 909, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992). The coexistence of the common law D’Oench doctrine and the statutory scheme presents no inconsistency with this purpose. Indeed, the history of the interaction between the D’Oench common law and the statute strongly indicates that Congress did not intend preemption. The statute at issue began in 1950 as a partial codification of the D’Oench case. Subsequently, just as the D’Oench decision itself was a common law rule fashioned to fill the interstices of federal statutes, courts continued to apply the common law D’Oench doctrine beyond the confines of the statutory language in order to fulfill Congress’ purposes in enacting § 1823(e)(1). Thereafter, in the intervening forty years, the common law D’Oench doctrine and the cases under the statute evolved together, each drawing upon the other. The Supreme Court in Langley v. FDIC, 484 U.S. 86, 92-93, 108 S.Ct. 396, 402, 98 L.Ed.2d 340 (1987), interpreted the statute broadly in order to serve the purpose of the common law D’Oench ease. Since the creation of § 1823(e)(1) in 1950, innumerable cases in every circuit court of appeals have held that the common law D’Oench doctrine and the statute continued to apply and complement each other. Thus, in 1989, when Congress addressed this special area of federal concern as a small part of the overall crisis in the banking industry, Congress was looking at forty years of harmonious coexistence of the common law doctrine and the statute. When Congress merely carried over the substance of the § 1823(e)(1)' language, we believe that the most reasonable reading of the congressional intent is that Congress codified parts of the evolving D’Oench common law, left the state of the law unchanged, and left in place both the statute and the federal common law D’Oench doctrine to fill in the inevitable gaps left by the statutory language. See Inn at Saratoga Assocs. v. FDIC, 60 F.3d 78, 82 (2d Cir.1995) (adhering to the common law D’Oench doctrine to fill in a gap left by the statute because failing to do so “would undercut an important purpose of [the D’Oench ] doctrine — allowing the FDIC to rely on a bank’s records when insuring the bank”); NEW Commercial Paper, 826 F.Supp. at 1460-61 (“While both D’Oench and the statutory provisions protect similar interests of the government, each is capable of a somewhat independent interpretation, ... so that they do not completely overlap. It is this added protection given by D’Oench, which Congress has neither codified nor demonstrated any intent to repudiate, that remains viable in the interstices of FIRREA.... D’Oench can best be described as a safety net which Congress has left to insure that the specific wording of the statute does not prevent the true application of Congress’ policies.”). The common law doctrine has served the important function of filling the inevitable gaps left by the statutory language. We conclude that it is even clearer in this ease than in Texas that Congress did not intend to preempt the prior federal common law D’Oench doctrine. Texas held that the statute did not “speak directly” to the issue, notwithstanding the fact that the statute addressed the area of the government’s debt collection and addressed prejudgment interest in particular, and notwithstanding the fact that Congress expressly excluded states from the operation of the statute. In the instant case, no language in the statute refers directly to the common law D’Oench doctrine. The only language in the statute even relevant to the issue presented by Mo-torcity — the range of oral agreements with respect to which the FDIC will be protected — is found in § 1823(e)(1), and its language was merely carried over intact from prior law. As in Texas, our conclusion is supported by the evident purpose of FIRREA — to enhance the FDIC’s ability, to address the problems created by the increasing number of financial institutions in default. As in Texas, Motorcity’s construction would have the “anomalous effect” of undermining the purposes of FIRREA. Specifically, Motorcity’s interpretation seeks to take advantage of oral agreements, evading the statute and D’Oench merely because Motorcity has paid off its loan. Such an interpretation would undermine the core purpose of both the D’Oench doctrine and its statutory cousins, i.e., allowing the FDIC to make its necessary decisions and evaluations, which sometimes must be made with lightning speed, by relying on the written bank records. For the foregoing reasons, we therefore hold that neither FIRREA, nor the Federal Deposit Insurance Act of 1950, preempted the federal common law D’Oench doctrine. B. Can Motorcity Avoid the D’Oench Doctrine if it Repaid its Loans to Southeast Prior to Bringing this Lawsuit? Our conclusion that the D’Oench doctrine has not been preempted by statute is reinforced by an examination of Motorcity’s argument that §§ 1821(d)(9)(A) and 1823(e)(1) are inapplicable because Motorcity repaid its loan to Southeast before the FDIC was appointed receiver. Pointing to § 1823(e)(l)’s reference to an “agreement which tends to diminish or defeat the [FDIC’s] interest ... in any asset acquired by it,” Motorcity contends that § 1823(e)(1) does not bar any claims against the FDIC that do not affect the value of a specific asset of the bank, such as a note, acquired by the FDIC. Because it repaid its note, Motorcity argues that there is no longer any specific asset to which the alleged oral agreements relate. See Murphy v. FDIC, 61 F.3d 34, 37 (D.C.Cir.1995) (holding that § 1823(e) applies only when the FDIC’s interest in a specific asset would be impaired by the alleged secret agreement); Inn at Saratoga Assocs. v. FDIC, 60 F.3d 78 (2d Cir.1995) (holding that a promise to make a loan is not covered by § 1823(e) because a promise is not an “asset”); John v. RTC, 39 F.3d 773, 776-77 (7th Cir.1994) (“Section 1823(e) requires an identifiable ‘asset’ which is acquired by the bank and then transferred to the regulatory agency, and to which the unenforceable agreements must relate.”); Murphy v. FDIC, 38 F.3d 1490, 1500 (9th Cir.1994) (en banc) (holding that § 1823(e) does not apply to a claim relating to a letter of credit; a letter of credit is a liability, not an asset); Thigpen v. Sparks, 983 F.2d 644, 648-49 (5th Cir.1993) (analyzing both §§ 1821(d)(9)(A) and 1823(e) and concluding that these statutes are limited by a “specific asset” requirement); FDIC v. Bracero & Rivera, Inc., 895 F.2d 824, 830 (1st Cir.1990) (where a note was discharged by the payment and cancellation of the underlying debt before the FDIC ever obtained it, the note was not an “asset” protected by § 1823(e)) (dicta); Commerce Federal Sav. Bank v. FDIC, 872 F.2d 1240, 1246 (6th Cir.1989) (where the indebtedness secured by a deed of trust is extinguished by operation of law before the FDIC acquires the failed bank, the FDIC has acquired no asset and therefore may not invoke § 1823(e)). In light of our holding that the federal common law D’Oench doctrine has not been preempted, we need not decide whether §§ 1821(d)(9)(A) or 1823(e)(1) are limited to claims that impair the FDIC’s interest in a specific asset. See Brookside Assocs. v. Rifkin, 49 F.3d 490, 495 (9th Cir.1995) (declining to address the extent to which § 1823(e) is limited by a specific asset requirement because the common law D’Oench doctrine is not so limited). Instead, we reaffirm the principle that the common law D’Oench doctrine is not limited to claims relating to a specific asset of the bank that has been acquired by the FDIC. RTC v. Dunmar Corp., 43 F.3d 587, 594-95, 597 (11th Cir.) (en bane) (holding that, regardless of whether a specific asset is involved, D’Oench applies to claims or defenses that relate to ordinary banking transactions), cert, denied sub nom. Jones v. RTC, — U.S. -, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); OPS Shopping Ctr., Inc. v. FDIC, 992 F.2d 306, 309 (11th Cir.1993) (rejecting the argument that the common law D’Oench doctrine is limited by a specific asset requirement). Other circuits are in agreement on this issue. See, e.g., Inn at Saratoga Assocs. v. FDIC, 60 F.3d 78, 82 (2d Cir.1995) (rejecting the argument that the D’Oench doctrine is limited by an “asset” requirement, because such a requirement “would undercut an important purpose of that doctrine — allowing the FDIC to rely on a bank’s records when insuring the bank”); Brookside Assocs. v. Rifkin, 49 F.3d 490, 496 (9th Cir.1995) (“[W]e hold that the common-law [D’Oench \ doctrine applies to bar suit even when the RTC does not acquire a specific asset whose value is affected by the alleged secret agreement.”); Jackson v. FDIC, 981 F.2d 730, 734-35 (5th Cir.1992) (holding that claims that do not diminish or defeat the FDIC’s interest in any specific asset are nevertheless D’Oench barred, in light of the “established purpose of the [D’Oench ] doctrine” to protect the FDIC’s reliance on the bank’s records); Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 49-50 (1st Cir.1991) (per curiam) (“D’Oench protects the FDIC from Timberland’s affirmative claims which are based upon an alleged oral agreement to lend money in the future.”); Hall v. FDIC, 920 F.2d 334, 339 (6th Cir.1990) (“D’Oench is important for allowing banking authorities to determine exactly what a bank’s assets and liabilities are ... [and] may therefore be invoked even where FDIC does not have ‘an interest in an asset.’ ”), cert. denied, 501 U.S. 1231, 111 S.Ct. 2852, 115 L.Ed.2d 1020 (1991). Motorcity’s argument, that repaying a loan before filing tort claims precludes the FDIC from invoking the D’Oench doctrine, would result in absurdity. For example, suppose that a plaintiff wished to bring tort claims against the FDIC on the basis of alleged oral representations made by the faded bank in connection with the negotiation of the plaintiffs loan, and suppose that the alleged oral representations contradict the written loan terms. This hypothetical plaintiffs claims would fall within the core of the D’Oench doctrine and would be barred. See In re Geri Zahn, Inc., 25 F.3d 1539, 1544 (11th Cir.1994). Under Motorcity’s argument, however, the plaintiff could circumvent the D’Oench bar simply by paying off the balance of his or her loan before filing suit, leaving the FDIC without an interest in a specific asset. Such a result would seriously undermine the policies of the D’Oench doctrine: to protect the bank examiners who rely on the bank’s records in assessing the bank’s condition, to protect the FDIC’s ability to insure deposits, and to place the burden on borrowers to make sure that all of the terms of their loan agreements are in writing. The Ninth and Sixth Circuits have held that the D’Oench doctrine cannot be avoided by repaying a loan before filing suit. In Brookside, the plaintiff brought fraud claims against the RTC, as receiver for a failed bank, alleging that the bank’s officials misrepresented the appraised value of some condominiums. 49 F.3d at 490. In reliance on the alleged misrepresentations, the plaintiff purchased the condominiums, executing a nonrecourse note and first deed of trust in favor of the bank. The plaintiff defaulted on its loan, and the bank foreclosed on the condominiums. Six months later, the RTC took over the failed bank. At that time, the plaintiffs note and deed of trust were no longer on the bank’s books because they had been extinguished by the foreclosure sale. The plaintiff argued that the D’Oench doctrine did not apply, because the fraud claims did not diminish the RTC’s interest in a specific asset it had acquired from the bank. The Ninth Circuit squarely rejected the plaintiffs argument: [T]o strip the banking authority of D’Oench, Duhme protection [in this situation] would give debtors a message: If you relied on unrecorded representations when you borrowed from the bank, wait until your note is extinguished — or extinguish it. yourself by paying it off — before you file suit. It does not make sense, in light of D’Oench, Duhme policy, to allow the doctrine’s applicability to hinge on a procedural technicality easily manipulable by debtors. Id. at 496. Similarly, in Hall, the plaintiffs sued the FSLIC as receiver of a failed bank (“Commerce”), seeking damages arising out of Commerce’s breach of an unwritten agreement to advance additional funds on the plaintiffs’ loan. 920 F.2d at 334. Approximately three years before Commerce fell into receivership, the plaintiffs secured a loan from another bank and repaid the Commerce loan. The plaintiffs argued that, because they owed Commerce nothing when the FSLIC took it over, the FSLIC had no interest in any specific Commerce asset and thus the D’Oench doctrine did not apply. The Sixth Circuit rejected the plaintiffs’ argument: There are ... instances where FDIC no longer has an interest in an asset, but where the logic of D’Oench should still apply to protect FDIC. For example, an obligor and a bank in receivership might have mutual breach of contract claims growing out of loan documents in the bank’s records. The obligor, anticipating a suit by FDIC, might quickly pay off the note in an attempt to block FDIC’s resort to the D’Oench doctrine. Under these circumstances, the fact that the obligor paid off the debt so as that FDIC did not have “an interest in an asset” should not prohibit FDIC from invoking D’Oench. Id. at 339. Because the common law D’Oench doctrine has not been preempted, and because the common law D’Oench doctrine is not limited by a specific asset requirement, Motorcity’s repayment of its loan does not preclude the application of the D’Oench bar. We now turn to the application of the D’Oench doctrine to Motorcity’s proposed tort claims. C. Application of D’Oench; Are Motorcity’s Claims “Free Standing” Torts? The gravamen of Motorcity’s complaint is that Southeast should have notified Motorei-t/s absentee owners that out-of-trust sales were occurring at the automobile dealership. Motorcity does not argue that Southeast breached the written floor plan financing agreement. As the district court found, the written agreement imposes no duty on Southeast to monitor the dealership for the benefit of Motorcity and no duty to inform Motorcity of any out-of-trust sales. Motorcity does not challenge the district court’s reading of the written contract; rather, Motorcity relies primarily on alleged oral agreements and representations that Southeast would monitor the business not only for its own benefit but also for the benefit of Motorcity’s absentee owners. However, because the FDIC was entitled to rely on the bank’s records to ascertain the extent of the bank’s contractual obligations pursuant to the floor plan financing arrangement, D’Oench prevents Motorcity from offering extrinsic evidence to alter or to explain the written loan terms. FSLIC v. Two Rivers Assocs., Inc., 880 F.2d 1267, 1276 (11th Cir.1989) (refusing to consider extrinsic evidence to interpret loan terms, because such evidence was not reflected in the bank’s records); FDIC v. Merchants Nat’l Bank of Mobile, 725 F.2d 634, 639 (11th Cir.) (reject ing the use of extrinsic evidence not meeting the requirements of § 1823(e), including “intent of the parties” and the “surrounding circumstances,” to determine whether the bank’s participation in a loan was guaranteed by the Farmers Home Administration), cert. denied, 469 U.S. 829, 105 S.Ct. 114, 83 L.Ed.2d 57 (1984); FDIC v. Bay Street Dev. Corp., 32 F.3d 636, 639-40 (1st Cir.1994) (“[O]f course, extrinsic evidence of additional [loan] terms is inadmissible against FDIC.”); RTC v. Daddona, 9 F.3d 312, 319 (3rd Cir.1993) (“[N]ot only does the existence of the agreement have to appear plainly on the face of an obligation, but the basic structure of that agreement — its essential terms — must also appear plainly on the face of that obligation.”); Community Bank of the Ozarks v. FDIC, 984 F.2d 254, 257 (8th Cir.1993) (“Neither section 1823(e) nor D’Oench is satisfied by inferences drawn from a bank’s records.”). Thus barred from any contract claim based on either written or oral agreements, Mo-torcity argues that its proposed claims against the FDIC are tort claims that are not related to the floor plan financing agreement. Specifically, Motorcity contends that Southeast breached an alleged fiduciary duty to notify Motorcity of the out-of-trust sales discovered in the course of Southeast’s audits, and that Southeast acted negligently by conducting its audits in an unreasonable and incompetent fashion. Motorcity argues that these two claims fall within the “narrow exception” to the D’Oench doctrine for “free standing tort claims.” In re Geri Zahn, 25 F.3d 1539, 1543 (11th Cir.1994). The D’Oench doctrine bars all claims — even those sounding in tort — that are “sufficiently intertwined with regular banking transactions, such that exclusion of the alleged ‘secret agreement’ accords with the underlying policies of D’Oench.” Id. at 1543; OPS Shopping Ctr. v. FDIC, 992 F.2d 306, 310 (11th Cir.1993). In other words, a tort claim involving any “scheme or arrangement whereby the banldng authority is likely to be misled” cannot be asserted against the banldng authority. RTC v. Dunmar Corp., 43 F.3d 587, 593 (11th Cir.) (en banc), cert. denied sub nom. Janes v. RTC, — U.S. -, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also Langley v. FDIC, 484 U.S. 86, 92-93, 108 S.Ct. 396, 402, 98 L.Ed.2d 340 (1987) (explaining that the term “agreement” in § 1823(e) should be interpreted broadly to comport with the policies underlying the common law D’Oench doctrine). In Langley, for example, the borrower attempted to defend against a note that had been acquired by the FDIC by arguing that the note had been procured by the bank’s oral misrepresentations about the acreage of the mortgaged property, the extent of the mineral deposits, and the presence of preexisting mineral rights leases. Id. at 89, 108 S.Ct. at 400. Because these alleged fraudulent misrepresentations of fact occurred during discussions surrounding an ordinary banking transaction and involved matters that should have been included in the documents contained in the bank’s records, the Supreme Court held that the misrepresentations constituted “agreements” under § 1823(e)(1). Thus, the Langleys’ fraud defense was barred, notwithstanding the fact that it sounded in tort. Id. at 96, 108 S.Ct. at 403. Dunmar involved a borrower’s tort claims arising from a failed S & L’s oral representations that it would lend additional monies to the borrower, extend the time for payment of a loan, and permit a qualified buyer to assume the borrower’s mortgage. 43 F.3d at 587. Because “the nature of each alleged oral agreement or representation relates to regular banking transactions and should have been documented in the bank records,” we held that the D’Oench doctrine barred the borrower’s tort claims. Id. at 595. Similarly, In re Geri Zahn involved claims of fraud, wrongful dishonor, and intentional interference with a business relationship. 25 F.3d at 1539. These claims arose out of agreements and misrepresentations alleged to have oc-eurred during loan negotiations, and they contradicted the express terms of the loan documentation. We held that the claims fell “well within the core of the D’Oench bar,” becau