This section contains the nature of the case and procedural background.

In 2004, Glen and Charlotte Collins formed P to buy, rent, and flip real estate. P bought several foreclosed properties from Heritage Banking Group. P financed these purchases through promissory notes payable to Heritage, which were secured by deeds of trust encumbering the properties and guaranteed personally by the Collinses. The Collinses claimed the purchases were subject to the following side agreement: P would pay Heritage amounts equal to what Heritage paid for the properties at foreclosure and Heritage would later refinance the properties to account for their renovation value. P stopped making payments because Heritage purportedly did not live up to the side agreement. Heritage foreclosed on the properties. P sued Heritage for breach of contract and fraudulent inducement. Heritage was declared insolvent and the FDIC was appointed as receiver. The FDIC entered into a Purchase and Assumption Agreement with Trustmark National Bank (D), under which it transferred to D various Heritage assets and liabilities, including the P notes and guaranties. D pleaded section 1823(e) as a defense and filed counterclaims against P for the amount still owing on the notes. D filed a motion for summary judgment, arguing that because the claims against it and the defenses to its counterclaims are based on an unwritten side agreement section 1823(e) bars them. P objected, asserting that D either affirmatively or by being dilatory waived this defense. They further argued that, even if there was no waiver, there is a material fact dispute about whether the side agreement exists in a written form sufficient to overcome section 1823(e). The district court granted D's motion. P appealed.

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