concurring in part and dissenting in part:
To the extent that the court affirms the judgment of the district court, I concur; however, I respectfully dissent from that portion of the majority opinion which reverses the judgment of the district court. There are at least two aspects of the majority opinion with which I disagree.
First, so far as I understand the facts of this case, and also the language of the majority opinion, I can discern no difference — i.e., a difference which has legal significance in the application of the D’Oench1 bar — between the claims which the majority opinion permits to proceed and the claims which the majority opinion holds are D’Oench-h&rred. To the best of my understanding, the claims are identical. The claims differ only in two respects, neither of which has legal significance with respect to the application of the D’Oench doctrine. The permitted claims are asserted against RTC in its capacity as receiver, while the barred claims are asserted against RTC in its corporate capacity. The law is well established, and the majority opinion does not suggest otherwise, that the D’Oench bar applies in both capacities,2 and thus this is not the distinction which the majority is drawing. The only other difference I can discern is that the barred claims were asserted in the context of defenses to the effort of RTC to collect on a note, while the permitted claims were asserted as claims in the nature of a setoff. However, the majority opinion does not suggest that this fact carries legal significance, and I am aware of no case law suggesting that the D’Oench bar applies only to bar defenses to a note.3 Therefore, this cannot be the distinc*1019tion that the majority is drawing. Thus, the only differences which I can discern between the claims that the majority permits to proceed and the claims that the majority holds are D’Oench-barred are differences which have no legal significance. The majority opinion does not suggest that these two differences have any legal significance; rather, the majority opinion indicates that the reason for its refusal to apply the D’Oench bar is that the claims at issue are tort claims. However, if it is true that the tort claims at issue here are not D’Oench-barred, as the majority holds in one part of its opinion, then I cannot understand why the majority holds in another part of its opinion that those same claims are D’Oench-barred when asserted as a defense to the effort to collect on the note.
Second, and wholly apart from the apparent logical inconsistency, above discussed, I respectfully disagree with the rationale of the majority opinion that the D’Oench doctrine does not bar tort claims.4 In my judgment, the Supreme Court has held that the D’Oench doctrine does bar tort claims. In Langley v. FDIC, 484 U.S. 86, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987), the Supreme Court applied 12 U.S.C. § 1823(e) (codifying the D’Oench doctrine) to bar a claim based upon an oral misrepresentation by a banking official, notwithstanding the fact that the claim sounded in tort. The claim was for fraud; that is, that the misrepresentation was fraudulently made. In Langley, the alleged fraudulent misrepresentations were made during discussions which were part of ordinary banking transactions and which culminated in a land purchase, a note and a mortgage.
Similarly in this case, the misconduct of which Jones complains involves negotiations and discussions concerning the bank’s approval of persons or entities to assume part of Jones’ mortgage indebtedness. It is apparent from the statement of facts in the majority opinion that Jones’ claims are based upon negotiations between the bank officials, on the one hand, and, on the other hand, Jones and the persons proposing to purchase Jones’ property and assume Jones’ indebtedness with the bank. The background of Jones’ claim is that Jones wanted to sell the property and needed to do so to escape the burden of the debt, that Jones had potential purchasers who were willing to assume Jones’ indebtedness, and that certain concessions by the bank were needed including in particular the bank’s approval of the assumption by the potential purchasers. It is clear to me, from the facts recited by the majority, and from the briefs and the complaints, that the gist of Jones’ claim is that the bank officials strung him along, leading him to believe that the bank’s approval would be forthcoming, and then pulled the rug out from under Jones’ feet by refusing at the last minute to approve assumption of the loans. This ease is analogous to Langley in that the instant tort claims are intertwined with oral representations which Jones asserts led him to believe New Freedom would permit assumption of his mortgage indebtedness.
The First Circuit has also squarely rejected the position adopted today by the majority:
This conclusion is not altered by the fact that some of the claims asserted by Timberland sound in tort. The district court correctly held that D’Oench bars defenses and affirmative claims whether cloaked in terms of contract or tort, as long as those
*1020claims arise out of an alleged secret agreement. ... To allow the plaintiff to assert tort claims based on the oral agreement would circumvent the very policy behind D’Oench, and therefore, D’Oench is generally said to apply to tort claims. See Beighley [v. Federal Deposit Insurance Corporation], 868 F.2d [776] at 784. Although not decided under D’Oench, the Supreme Court’s decision in Langley v. FDIC supports this conclusion by holding that § 1823(e) bars fraud claims that are premised upon an oral agreement. 484 U.S. 86, 93, 108 S.Ct. 396, 402, 98 L.Ed.2d 340 (1987). We therefore conclude that D’Oench applies with equal force to tort claims arising out of secret agreements.
Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 50 (1st Cir.1991) (footnotes omitted). The tort claims asserted in Timberland (negligent misrepresentation, deceit, and breach of fiduciary duty) arose out of negotiations concerning additional loans, a context analogous to the claims in this case.
A number of other courts have held that D’Oench bars tort claims in similar situations. See McCullough v. FDIC, 987 F.2d 870 (1st Cir.1993) (D’Oench barred claim that bank liable for failing to disclose order requiring removal of hazardous waste from property); Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571 (10th Cir.1993) (D’Oench barred tort claim arising out of misrepresentations made during contract negotiations); In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332 (1st Cir.1992) (tort claims based on illegal kickback scheme barred by D’Oench); Oliver v. Resolution Trust Corp., 955 F.2d 583 (8th Cir.1992) (D’Oench barred tort claim for breach of fiduciary duty based on violation of oral side agreements regarding loan).5
It might be argued that Astrup v. Midwest Federal Sav. Bank, 886 F.2d 1057 (8th Cir.1989), supports the majority’s position in this case. In that case, Golden Pine was a subsidiary of First Federal Savings & Loan Association. First Federal (the bank) was prohibited by relevant regulations from engaging in real estate development; therefore the real estate project at issue was undertaken by its subsidiary, Golden Pine. Golden Pine and Astrup entered into a joint venture involving development of a 36-unit condominium project. The bank held the mortgage on the property. The notes and mortgage held by the bank called for interest at the market rate, but Astrup apparently claimed that Golden Pine, acting as the bank’s alter ego, was to provide financing at rates below the market. Id. at 1058 n. 2. Apparently, Astr-up also asserted that Golden Pine agreed to assume Astrup’s portion of the mortgage, and that Golden Pine breached its fiduciary duty to Astrup, as a joint venturer, by fraudulently entering into a transaction involving discriminatory interest rates. Id. at 1059-60. There was a jury verdict against Golden Pine. The district court granted a judgment notwithstanding the verdict with respect to the contract claims; the Eighth Circuit, relying upon the D’Oench doctrine, affirmed. However, the district court denied judgment notwithstanding the verdict with respect to the tort claims. The Eighth Circuit also affirmed this ruling, stating that the D’Oench doctrine affords no protection against tort claims, whether for personal injuries in an automobile collision, or for securities violations, “or for fraudulently entering into transactions involving discriminatory interest rates, such as the agreements alleged by plaintiff in the case at bar.” Id. at 1060. I note that the Eighth Circuit cited no precedent for its holding.
It would also appear that Astrup is distinguishable from the instant case; unlike this case, Astrup did not involve a tort arising out of ordinary banking transactions. Rather, in Astrup, the tort arose out of the nonbanking *1021business operation conducted by Golden Pine. The business transaction was apparently structured in this manner precisely because the bank could not under the relevant regulations engage in the real estate development business. Indeed, the D’Oench policy itself derived from the “federal policy to protect ... the public funds which it [the federal banking authority] administers against misrepresentations as to the securities or other assets in the portfolios of the banks which respondent insures.” D’Oench, 315 U..S. at 457, 62 S.Ct. at 679. That policy would not seem to be implicated at all in Astrup, because it seems clear that Golden Pine would have no depositors insured by the federal banking authority. By contrast, the tort claims in this case arise out of the discussions and representations allegedly made to Jones during negotiations concerning the assumption of Jones’ indebtedness by potential purchasers of the collateral. Thus, I submit that Astrup provides no support for the majority’s holding that the instant tort claims (which I submit are intertwined with oral discussions conducted during ordinary banking transactions) escape the D’Oench bar.
I also submit that it would undermine the purposes behind the D’Oench doctrine to fail to apply the doctrine here. First, it would undermine the purpose designed to permit bank examiners to rely on a bank’s records in evaluating the fiscal soundness of the bank and in deciding how best to deal with a bank in trouble. It is clear to me that any obligation of New Freedom to permit assumption of the Jones mortgage is precisely the kind of banking obligation that one would reasonably expect to be reflected in the bank records. If appellants prevailed in the instant suit, the effect would be very similar to enforcing the alleged oral promise by New Freedom to permit assumption of Jones’ mortgage indebtedness; the effect would be to impose liability notwithstanding the fact that no document in the bank’s records evidenced a commitment concerning assumption of the mortgage. Second, failure to apply the D’Oench doctrine in this case would undermine the purpose designed to insure mature consideration of banking transactions by appropriate banking officials. Here, it is clear that the appropriate bank officials did not authorize assumption of Jones’ mortgage indebtedness. Finally, it is also clear that Jones lent himself to an arrangement calculated to mislead bank examiners. Jones failed to obtain an official document, or any writing at all, evidencing a commitment to permit the mortgage assumptions which Jones sought.
The majority relies upon Vernon v. FDIC, 981 F.2d 1230 (11th Cir.1993). In that case, this court did hold that the D’Oench doctrine does not apply to “free standing tort claims.” That case, however, involved a tort claim arising out of the sale of the bank’s own stock; unlike the instant ease, it did not involve a tort claim arising out of oral discussions and representations during ordinary banking transactions and with respect to which it would be expected that any obligation on the bank would appear in the bank records. See OPS Shopping Center, Inc. v. FDIC, 992 F.2d 306 (11th Cir.1993). By contrast, Jones’ tort claims arise out of oral representations and discussions concerning assumption of loans and New Freedom’s ultimate refusal to approve the assumption of Jones’ indebtedness by persons whom Jones proffered as potential purchasers of property which comprised the collateral for Jones’ mortgage. Any obligation on the part of the bank relating to assumption of mortgages would ordinarily be expected to be reflected in the records of the bank.
I respectfully submit that the majority’s holding constitutes an unwarranted extension of Vernon. In my judgment, the majority has extended Vernon’s “free standing” tort theory to a claim which I submit is not “free standing.” The Vernon rule makes good sense. For example, when bank examiners conduct their periodic inspection of a bank’s records concerning ordinary banking transactions, they would not expect to find a record describing and quantifying the bank’s potential liability with respect to vehicular accidents, especially those not yet reported or subject to claim. Potential claimants know that they have the usual statute of limitations period to make such claims; the failure to do so immediately could not be said to facilitate any misleading of bank examiners. By contrast, to extend the Vernon ra*1022tionale to this case would undermine the purposes underlying D’Oench.
It is not necessary in this case for me to define the precise line between a “free standing” tort which escapes the D’Oench bar under Vernon, and a tort which is sufficiently intertwined with oral representations made during ordinary banking transactions to be barred by D’Oench. It is clear from the Supreme Court’s holding in Langley that a claim arising from a fraudulently made oral misrepresentation is barred. The only cases to date which have held a tort claim to be immune from D’Oench have involved claims which did not arise out of ordinary banking transactions.6 Such claims are readily classified as “free standing” torts. Because the instant tort claims not only arise out of ordinary banking transactions but are also intertwined with and inseparable from alleged oral misrepresentations, they fall easily within the holding of Langley. Thus, I need not address or decide whether some tort claims might be sufficiently separable from any oral misrepresentations so that the D’Oench bar is escaped notwithstanding the fact that the tort arose out of ordinary banking transactions.7
I conclude that both the case law and the purposes of the D’Oench doctrine point forcefully to the application of the doctrine in this case. I respectfully dissent from the failure of the court to do so.
. D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942).
. In Federal Savings and Loan Insurance Corp. v. Two Rivers Associates, Inc., 880 F.2d 1267 (11th Cir.1989), this circuit held:
[T]he reasoning behind D'Oench, Duhme requires that it be applied to protect the FDIC and the FSLIC regardless whether the regulatory body is acting in its capacity as a receiver or as a corporate insurer.
Id. at 1277. Other cases in this circuit are in accord. FDIC v. McCullough, 911 F.2d 593 (11th Cir.1990), cert. denied, -U.S. -, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991); Vernon v. Resolution Trust Corp., 907 F.2d 1101 (11th Cir.1990). In addition, several other circuits have squarely held that the D'Oench doctrine applies to the F.D.I.C. in its receiver capacity. Oklahoma Radio Associates v. FDIC, 987 F.2d 685 (10th Cir.1993); Timberland Design, Inc. v. First Serv. Bank for Savings, 932 F.2d 46 (1st Cir.1991); FDIC v. McClanahan, 795 F.2d 512 (5th Cir.1986); FDIC v. First National Finance Co., 587 F.2d 1009 (9th Cir.1978). Other circuits, without expressly addressing the issue, have applied the D'Oench rule in cases where the F.D.I.C. was acting in the capacity of a receiver. FDIC v. Hadid, 947 F.2d 1153 (4th Cir.1991); FDIC v. Bernstein, 944 F.2d 101 (2nd Cir.1991); FDIC v. Wright, 942 F.2d 1089 (7th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992); Adams v. Madison Realty & Development, Inc., 937 F.2d 845 (3rd Cir.1991); First State Bank v. City and County Bank, 872 F.2d 707 (6th Cir.1989); Firstsouth, F.A. v. Agua Constr., Inc., 858 F.2d 441 (8th Cir.1988).
In 1989, 18 U.S.C. § 1823(e) was amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) to explicitly cover situations in which the FDIC acts in its receiver as well as its corporate capacity. FIR-REA was enacted on August 9, 1989; several circuits have held this provision to apply retroactively. See FDIC v. Longley I Realty Trust, 988 F.2d 270 (1st Cir.1993); Wright, 942 F.2d at 1097 (7th Cir.1991); FDIC v. Kasal, 913 F.2d 487 (8th Cir.1990), cert. denied, 498 U.S. 1119, 111 S.Ct. 1072, 112 L.Ed.2d 1178 (1991); Triland Holdings & Co. v. Sunbelt Serv. Corp., 884 F.2d 205 (5th Cir.1989) (applying FIRREA amendments to cases pending at the time FIRREA was enacted). See also Twin Constr., Inc. v. Boca Raton, Inc., 925 F.2d 378, 381-82 (11th ir.1991) (quoting amended statute, but noting that result the same whether statute or common law D’Oench doctrine applied).
.If D'Oench applied only to bar defenses to a suit on a note, the legal effect would be that RTC could collect on the note, but the obligor on the *1019note could claim in a separate count that the RTC, as successor to the predecessor bank, was liable based on the same facts which were asserted as a defense to the note, which liability could then be set off against the RTC's recovery on the note. There would be the practical difference that the amount of the setoff would probably be less than the full amount of the note (the pro rata share of the assets of the failed institution likely being less than 100%).
However, the case law does not impose this narrow limitation on the application of the D’Oench doctrine, and I do not understand the majority opinion to be suggesting this. Indeed, this court very recently squarely rejected the contention that D’Oench applies only to bar claims which are related to specific assets, like a note. OPS Shopping Center, Inc. v. FDIC, 992 F.2d 306 (11th Cir.1993) ("every circuit court of appeals which has expressly addressed this argument has rejected it” id. at 309; "we reject appellant's argument that the D’Oench doctrine does not apply merely because the claim at issue relates to a liability of the bank rather than to a specific asset,” id. at 311).
. Appellants did not argue on appeal that D’Oench should not apply because the claims are tort claims. In my judgment, this court should not raise the issue sua sponte. See note 7, infra.
. In Texas Refrigeration Supply, Inc. v. FDIC, 953 F.2d 975 (5th Cir.1992), the Fifth Circuit held that D'Oench did not preclude a borrower from asserting claims for wrongful acceleration and unreasonable disposal of collateral at foreclosure. The court reasoned that those claims were not barred because they did not arise from a secret or unrecorded agreement, but from the implied good faith obligation made part of every contract under state law. Jones has not argued that the bank had an obligation with respect to the assumption of his mortgage indebtedness which arose by operation of law, and thus would be apparent to the bank examiners when the available documents were considered in light of the relevant law.
. See above discussion of Vernon and Astrup.
. Although the language of the majority opinion seems to make no distinction amongst the acts and possible torts committed by the bank officials, an argument could be made that one aspect of the bank officials' actions is sufficiently separable from any oral misrepresentations — i.e., the apparent allegation that the officials were motivated by their own self-interest (a conflict of interest) to "kill the deal” which Jones was proposing. I doubt that even a claim limited solely to this activity could escape the D'Oench bar in this case. It is clear that any such scheme to “kill the deal” was intertwined with oral representations or misrepresentations. In other words, the means employed to "kill the deal” was to string Jones along with oral misrepresentations and then refuse to approve the assumption. The motivations of the bank officials may have been separable, but the implementation was intertwined. The Supreme Court decision in Langley stands for the proposition that D'Oench bars a claim based upon an oral representation, even though the misrepresentation is motivated by fraud.
However, I need not decide in this case whether there may have been some discrete acts of the bank officials which are sufficiently separable from any oral representations to escape the D’Oench bar. As noted earlier, appellants have not even argued in this case that. D'Oench is inapplicable because the claims are tort claims, much less that the claims fall into a certain category of tort claims that escape the D’Oench bar. I respectfully submit that it would be unfair to appellee in this case for this court either to try to draw the uncharted line defining the outer limits of the D'Oench bar or try to recast and stretch Jones' claims to fit them within any such new definition. Appellants have not asserted this theory or anything remotely resembling it. Ap-pellee thus has had no opportunity to assist the court in defining the appropriate line, and has had no opportunity to proffer evidence to indicate that the instant claims fall on the side of the D'Oench bar. At this stage of the proceedings, appellate review of the grant of summary judgment, I respectfully submit that this court should not raise the issue sua sponte in order to reverse the judgment of the district court.