Bankers Trust Co CA v. Boydell

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 30, 2002
• Docket: 01-31125
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-31125

Summary Calendar ____________________

BANKERS TRUST COMPANY OF CALIFORNIA, NA, as trustee

Plaintiff - Appellee

v.

EARL M J BOYDELL, JR; DEONNE DUBARRY

Defendants - Appellants

_________________________________________________________________

Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-3403-F

_________________________________________________________________ July 29, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendants-Appellants, Earl M.J. Boydell, Jr. and Deonne

DuBarry, appeal the district court’s grant of summary judgment in

favor of Plaintiff-Appellee, Bankers Trust Company of California

(“Bankers Trust”), on Bankers Trust’s action to enforce Boydell

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. and DuBarry’s payment obligations under a promissory note and to

obtain a declaration of Bankers Trust’s rights under two

agreements created to secure repayment on that promissory note.

For the following reasons, we AFFIRM the district court’s order

granting summary judgment in favor of Bankers Trust.

I. BACKGROUND

This diversity case is based on a set of three agreements

executed by Boydell and DuBarry in 1984 to obtain a $280,000 loan

from Pelican Homestead Savings and Association (“Pelican”): (1) a

promissory note (the “Note”) executed in favor of Pelican and

paraphed ne varietur (i.e., notarized in identification with) an

act of mortgage securing the payment obligations under the Note,

(2) the act of mortgage (the “Mortgage”), which secured the Note

by encumbering certain property located Orleans Parish, Louisiana

(the “Orleans Parish property”), and (3) an assignment of the

leases and rents from the Orleans Parish property “made and

delivered as additional security for the payment of the Note”

(the “Assignment”). Pelican subsequently declared bankruptcy,

and on November 17, 1992, Pelican’s receiver, the Resolution

Trust Corporation, endorsed the Note and assigned the Mortgage to

Bank of America National Trust and Savings Association (“Bank of

America”) as trustee for the benefit of the investors in a

Resolution Trust Corporation loan pool. Bankers Trust succeeded

Bank of America as trustee.

2 On May 1, 2000, Boydell and DuBarry defaulted on their

payment obligations under the Note and Mortgage. After making

two unsuccessful amicable demands for payment, the second of

which included a notice of acceleration, Bankers Trust filed suit

in the district court on November 15, 2000, asserting that, as

holder of the Note, Bankers Trust was entitled to collect the

full amount of Boydell and DuBarry’s payment obligations under

the Note and Mortgage because of their continued default.1 In

addition to seeking judgment against Boydell and Dubarry

(individually and in solido) for the amounts owing under the

Note, Bankers Trust requested that it be declared (1) “the holder

of a valid and sustaining first lien, privilege and mortgage” on

the Orleans Parish property and (2) “the assignee and owner of

the leases, rents, and future leases received or derived from the

[Orleans Parish property].”

In support of its claim, Bankers Trust submitted copies of

the Note, the Mortgage, and the Assignment, as well as

documentation of Bankers Trust’s status as holder of the Note and

Mortgage and of its entitlement to the leases and rents from the

Orleans Parish property under the Assignment. Boydell responded

to Bankers Trust’s complaint with general denials and an

allegation that he was improperly charged late fees that were

1 In its first amended complaint, filed on March 20, 2001, Bankers Trust named Earl M.J. Boydell, Jr. as DuBarry’s co- defendant instead of Earl M.J. Boydell.

3 never credited in the loan payment record. DuBarry, who filed a

separate answer to the complaint, maintained that Bankers Trust

was not entitled to judgment against her for payment on the Note

because she sold her interest in the Orleans Parish property to

Boydell.

On August 16, 2001, Bankers Trust filed a motion for summary

judgment. In addition to the documents submitted with its

complaint, Bankers Trust produced copies of the two demand

letters mailed to Boydell and DuBarry, the loan payment record, a

Louisiana mortgage certificate indicating that the Mortgage was a

validly recorded first lien and encumbrance on the Orleans Parish

property, and affidavits supporting Bankers Trust’s assertions

that it was holder of the Note and Mortgage and that Boydell and

DuBarry had defaulted on their payment obligations. In response,

Boydell reiterated his general denials of Bankers Trust’s

allegations and submitted a copy of the loan payment record and

copies of two checks for payments that he alleged were never

credited to his loan account. On the day before the hearing on

Bankers Trust’s summary judgment motion, Boydell also submitted

his own affidavit claiming that the signature of his name on the

Note was not genuine. DuBarry did not file a response to Bankers

Trust’s summary judgment motion.

Finding that neither Boydell nor DuBarry had submitted

evidence creating a genuine issue of material fact as to the

genuineness of the Note, the district court concluded that

4 Bankers Trust was entitled to judgment as a matter of law.

Boydell and DuBarry timely appealed the district court’s grant of

summary judgment in favor of Bankers Trust.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

We review a district court’s grant of summary judgment de

novo, applying the same Rule 56 standard as the district court.

Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).

Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). Because

“[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury

functions, not those of a judge,” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986), “[d]oubts are to be resolved in

favor of the nonmoving party, and any reasonable inferences are

to be drawn in favor of that party,” Evans v. City of Bishop, 238

F.3d 586, 589 (5th Cir. 2000).

If the moving party shows that there is no genuine issue of

material fact, then the burden shifts to the nonmoving party, who

“may not rest upon the mere allegations or denials of the

[nonmoving] party’s pleading,” but rather “must set forth

specific facts showing that there is a genuine issue for trial.”

5 FED. R. CIV. P. 56(e). After the nonmoving party has been given

an opportunity to raise a genuine factual issue, if no reasonable

juror could find for that party, summary judgment is proper. See

Anderson, 477 U.S. at 252.

III. ENFORCEMENT OF THE PROMISSORY NOTE

Under Louisiana law, “[w]hen signatures [on a promissory

note] are admitted or established, production of the instrument

entitles a holder to recover on it unless the defendant

establishes a defense.” Am. Bank v. Saxena, 553 So. 2d 836, 842

(La. 1989); see also LA. REV. STAT. ANN. §§ 10:3-301, 10:3-308(b)

(West 1993). In light of this clear-cut and simple legal scheme,

this court has recognized that “[s]uits to enforce promissory

notes are especially appropriate for disposition by summary

judgment.” Resolution Trust Corp. v. Marshall, 939 F.2d 274, 276

(5th Cir. 1991).

In support of its summary judgment motion, Bankers Trust

produced a copy of the Note bearing Boydell’s and DuBarry’s

signatures as well as documents and affidavits showing that

Bankers Trust is the holder of the Note and that Boydell and

DuBarry defaulted on their payment obligations. Louisiana law

provides that “[i]n an action with respect to an instrument, the

authenticity of, and authority to make, each signature on the

instrument is admitted unless specifically denied in the

pleadings.” LA. REV. STAT. ANN. § 10:3-308(a). Accordingly, as

6 neither Boydell nor DuBarry denied the authenticity of their

signatures on the Note in their answers to Bankers Trust’s

complaint, the authenticity of their signatures is admitted.2

Bankers Trust has thus satisfied its summary judgment burden with

the documents it produced, and the burden shifts to Boydell and

DuBarry to establish the existence of a genuine issue of material

fact precluding summary judgment. See Premier Bank, Nat’l Ass’n

v. Percomex, Inc., 92-243 (La. App. 3 Cir. 3/3/93), 615 So. 2d

41, 43 (“Once the plaintiff, the holder of a promissory note,

proves the maker’s signature, or the maker admits it, the holder

has made out his case by mere production of the note and is

entitled to recover in the absence of any further evidence.”).

DuBarry did not submit a response to Bankers Trust’s summary

judgment motion. In her answer to the complaint, she either

generally denied “due to lack of information” or admitted all of

Bankers Trust’s allegations. Thus, DuBarry did not specifically

contest the authenticity of her signature on the Note, the status

of Bankers Trust as the holder of the Note, or the fact that the

2 On the day before a hearing on Bankers Trust’s summary judgment motion was scheduled to take place, Boydell filed an affidavit with the district court in which he suggested that the signature of his name on the Note was inauthentic. Although this claim is material to Bankers Trust’s action to enforce the Note, we agree with the district court that Boydell’s challenge to the authenticity of the signature is not sufficient to raise a genuine factual issue, given that he made payments on the Note for several years before the default and did not question the genuineness of the signature until almost ten months after Bankers Trust initiated the instant action.

7 Note was in default. The only specific fact that she asserted ——

that she sold her interest in the Orleans Parish property to

Boydell —— is immaterial to Bankers Trust’s action to enforce the

Note.3 A transfer of DuBarry’s interest in the property securing

her payment obligations under the Note does not relieve her of

those obligations. See Solomon v. Copping, 112 So. 2d 749, 751

(La. Ct. App. 1959) (“[T]he assumption [of a mortgage obligation]

by the new purchaser [of the mortgaged property] in no way

relieves the original mortgagor of the mortgage obligation.”).

In his response to Bankers Trust’s summary judgment motion,

Boydell argued that he was improperly charged late fees and that

he made two payments that were never credited to his account.

Neither of these claims affect Bankers Trust’s entitlement to

collect on the Note, as Boydell did not assert in his summary

judgment response that he would not have been in default of his

loan obligations if the late fees had not been charged or if the

two payments had been credited. Read liberally, Boydell’s and

DuBarry’s briefs on appeal (which are essentially the same

document) suggest that the allegedly improper late fees and

uncredited payments had some sort of causal connection to the

default. Boydell and DuBarry claim that they “have a right to a

trial on the merits in order to prove that [Bankers Trust] was,

and is, the factor which has caused the mortgage account . . . to

3 As the district court pointed out, DuBarry did not produce any documentation in support of this claim.

8 reflect an incorrect balance, excessive late fees . . . and

numerous other bookkeeping and legal errors.” However, Boydell

and DuBarry cannot defeat summary judgment with such conclusory

assertions. The only evidence that Boydell submitted to the

district court —— i.e., copies of the two checks for the

allegedly uncredited payments and a copy of the payment record ——

actually undermines his claim that the payments were not credited

to the loan account because, as the district court noted, the

payment record reflects both payments. Nor are we persuaded by

Boydell and DuBarry’s contention that they would have been able

to demonstrate the inaccuracy of their loan payment record if

they had “been given an opportunity to complete discovery and to

have an accountant review the [record].” While summary judgment

is not appropriate unless the nonmoving party has been provided

adequate time for discovery, Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986), the nonmoving party “must file a motion and

non-evidentiary affidavits pursuant to [Rule] 56(f), explaining

why it cannot oppose the summary judgment motion on the merits,”

in order “[t]o preserve a complaint of inadequate opportunity to

conduct discovery,” Robbins v. Amoco Prod. Co., 952 F.2d 901, 907

(5th Cir. 1992). Because Boydell and Dubarry did not file any

such motion in the district court, reversal is warranted only if

they demonstrate that their substantial rights were affected as a

result of the allegedly inadequate discovery. See FED. R. CIV. P.

61. In their briefs to this court, they do not even attempt to

9 justify their failure to engage in any discovery during the ten

months between Bankers Trust’s filing of its complaint and the

district court’s granting of summary judgment. Boydell and

DuBarry are not entitled to reversal based on their conclusory

assertion that they were not permitted sufficient time for

discovery in the district court. See Robbins, 952 F.2d at 907.

Because Boydell and DuBarry rested on general denials and

unsupported, largely immaterial assertions, the district court

correctly determined that there was no genuine issue of material

fact precluding summary judgment in favor of Bankers Trust on its

claim to enforce the Note.4

IV. DECLARATION OF RIGHTS UNDER THE MORTGAGE AND THE ASSIGNMENT OF LEASES AND RENTS

Under Louisiana law, “[a]n authentic act [of mortgage]

constitutes full proof of the agreement it contains, as against

the parties, their heirs, and successors by universal or

particular title.” LA. CIV. CODE ANN. art. 1835 (West 1987).

Bankers Trust produced copies of both the Mortgage and the

4 In his response to Bankers Trust’s summary judgment motion, Boydell also suggested that the transfer of the Note and the Mortgage was somehow improper. Specifically, he asserted that he “ha[d] absolutely no evidence of any type proving that a proper transference of the balance of the mortgage was accurately performed.” However, given that Bankers Trust did produce such evidence —— specifically, documentation of the transfer through which it obtained the Note and Mortgage and supporting affidavits —— Boydell was required to produce some type of evidence indicating that the transfer was improper in order to create a genuine factual issue sufficient to preclude summary judgment. Boydell failed to produce any such evidence.

10 Assignment and a supporting affidavit attesting that they were

true copies of the original documents. As noted above, Bankers

Trust also produced documentation establishing that it is the

holder of the Mortgage, that the Mortgage is a validly recorded

first lien and encumbrance on the Orleans Parish property, and

that Bankers Trust is entitled under the Assignment to the

leases, rents, and future leases derived from the Orleans Parish

property. Neither Boydell nor DuBarry presented more than

general denials in response to Bankers Trust’s claims that it is

the valid holder of the Mortgage as a validly recorded first lien

and encumbrance on the Orleans Parish property and that it is the

owner of the leases, rents, and future leases of the Orleans

Parish property under the Assignment. Accordingly, the district

also correctly determined that Bankers Trust is entitled to

summary judgment on its claims for declaratory relief regarding

its rights under the Mortgage and Assignment.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

order granting summary judgment in favor of Bankers Trust.