In short: The borrowers lost. First Citizens bought a failed lender’s loans from the FDIC and used D’Oench Duhme to defeat lender-liability defenses. The borrowers argued the FDIC agreement required written FDIC consent first and none was produced. The trial court granted summary judgment, and the Third DCA affirmed without opinion in 2013.
The Facts
First Citizens Bank and Trust Company bought a failed lender’s loans from the FDIC and sued Say Flagler Investments, LLC and related parties in Miami-Dade circuit court. Two consolidated appeals followed (3D12-2619 and 3D12-2620). Because the Third District affirmed without an opinion, what follows is what the record and the arguments showed, as described for the oral argument, not appellate findings.
The borrowers raised lender-liability defenses. First Citizens answered with the D’Oench Duhme doctrine and 12 U.S.C. section 1823(e), which bar defenses based on agreements not in the failed bank’s written records. The borrowers pointed to the FDIC agreement: it required written FDIC consent before the buyer used those special powers. No written consent was produced, only testimony that an email giving consent existed.
The borrowers argued that left a fact issue, that the testimony about the email was hearsay and violated the best evidence rule, and that summary judgment was premature with discovery still outstanding. The bank argued the consent clause sat in the shared-loss agreement and governed only whether the FDIC would reimburse the bank’s losses, and that the D’Oench protections pass to assignees regardless.
The Decision
The Third District affirmed per curiam without opinion, so the summary judgment for First Citizens stood. The court did not say why. It may have accepted the bank’s reading that the consent clause affected only the bank’s reimbursement rights with the FDIC, concluded the protections passed to the buyer anyway, or found the borrowers’ defenses failed on other grounds.
A PCA is not precedent. It does not decide whether a loan buyer must prove FDIC consent before invoking D’Oench, and borrowers in later cases remain free to press the argument.
The Law
When the FDIC takes over a failed bank, the D’Oench, Duhme doctrine and 12 U.S.C. section 1823(e) generally bar borrowers from defending on side agreements or promises that are not in writing, approved by the bank’s board, and kept in its official records. Many courts, including Florida courts, have held that these protections pass to a private bank that buys the loan from the FDIC. Purchase and assumption and shared-loss agreements between the FDIC and the buyer can contain conditions, and whether those conditions limit the buyer’s rights against borrowers, or only govern the buyer’s relationship with the FDIC, depends on their wording.
On the evidence side, a party trying to prove what a writing says generally must produce the writing under Florida’s best evidence rule, section 90.952, unless an exception applies, and testimony about an out-of-court email offered for its truth raises hearsay issues under section 90.801. Since May 1, 2021, Florida Rule of Civil Procedure 1.510 follows the federal summary judgment standard, and a party claiming it needs more discovery must show specifically what it needs and why.
Current law (2026): Florida Rule of Civil Procedure 1.510 was amended effective May 1, 2021, to adopt the federal summary judgment standard; this 2013 case was decided under the prior standard. Sections 90.952 and 90.801 confirmed current.
Lessons
- If your loan came from a failed bank, demand the purchase and assumption agreement and any shared-loss agreement in discovery and read the conditions.
- If a condition such as FDIC consent matters, insist on the document itself, and object to testimony describing it.
- Defenses based on oral promises or undocumented side deals are especially weak against the FDIC and its loan buyers.
- If summary judgment is set before discovery is done, file a specific motion explaining what discovery is missing and why it matters.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above. (The channel has this argument posted twice; the other upload is here.)
Can a Bank Use the FDIC's Superpowers Without Its OK? | Say Flagler v. First Citizens, 3D12-2620
Go Deeper
- Florida's Summary Judgment Rule: How Rule 1.510 Ends Cases Without a Trial
- Foreclosure Standing on Appeal in Florida: Watch the Arguments Over Who Owns the Note
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
What is the D'Oench Duhme doctrine?
It is a federal doctrine, partly codified at 12 U.S.C. section 1823(e), that bars borrowers from using unwritten or unrecorded side agreements as defenses against the FDIC after it takes over a failed bank. Regulators must be able to rely on the bank’s written records. Many courts extend the protection to private banks that buy those loans.
Does a bank that bought a failed bank's loans need FDIC consent to use D'Oench?
It depends on the agreements and the court. In Say Flagler v. First Citizens, the borrowers argued the FDIC agreement required written consent and none was produced; the bank said that clause governed only FDIC reimbursement. The Third DCA affirmed without opinion, so the question was not decided.
Can testimony that an email exists prove what the email said in Florida?
Usually not by itself. Florida’s best evidence rule generally requires the original writing to prove its contents unless an exception applies, and an out-of-court statement offered for its truth is hearsay. Lawyers should object when a party describes a key document instead of producing it.
What does a per curiam affirmance (PCA) mean in Florida?
It means the appellate court upheld the trial court’s judgment with the single word affirmed and no opinion. The losing side gets no explanation, the ruling below stands, and the decision is not precedent for any legal point. In Say Flagler v. First Citizens, the PCA left the trial court’s result in place without endorsing any particular reason for it.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
