Fimberg v. Federal Deposit Insurance Corp.

880 S.W.2d 83, 1994 Tex. App. LEXIS 1320, 1994 WL 161947
CourtCourt of Appeals of Texas
DecidedJune 1, 1994
Docket06-93-00064-CV
StatusPublished
Cited by7 cases

This text of 880 S.W.2d 83 (Fimberg v. Federal Deposit Insurance Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fimberg v. Federal Deposit Insurance Corp., 880 S.W.2d 83, 1994 Tex. App. LEXIS 1320, 1994 WL 161947 (Tex. Ct. App. 1994).

Opinions

[84]*84OPINION

GRANT, Justice.

Stanley R. Fimberg appeals from a summary judgment entered in favor of the Federal Deposit Insurance Corporation, in its corporate capacity. The FDIC sued Fim-berg, seeking money due on a promissory note executed by Winterset Apartments, Ltd., which had declared bankruptcy and of which Fimberg was general partner.

Fimberg contends that the trial court erred in granting summary judgment because the FDIC did not establish that it owned the note, because the FDIC did not establish that Fimberg should be held personally liable on the note, because the bankruptcy plan of reorganization settled payment of the note, and, generally, because genuine issues of material fact exist and the FDIC failed to establish its right to judgment as a matter of law.

FACTS

On November 11, 1983, Winterset Apartments, Ltd. executed a promissory note payable to the Harris County Housing Finance Corporation for $8,500,000. Winterset borrowed the money from Harris County Housing Finance Corporation to build an apartment complex which served as security for the loan. The note included a provision making the owner of the property, Winterset, personally liable for payment of the note to the extent that rents or income from the property went to Winterset after a default on the note, provided the holder of the note duly notified the owner and demanded the rents or income.

Harris County Housing Finance Corporation then endorsed the note to Interfirst Bank Houston, N.A., which subsequently merged with RepublicBank Houston, N.A. and became First RepublicBank Houston, N.A. A year later, the Comptroller of Currency declared First RepublicBank insolvent and appointed the FDIC as receiver. The FDIC then sold various assets of First Re-publicBank, including the Winterset note, to JRB Bank, N.A., which changed its name to NCNB Texas National Bank, N.A.

On January 1, 1989, Winterset defaulted on the note, and, after receiving a demand letter from NCNB, Winterset began paying net receipts from the property to NCNB. Beginning November 1, 1990, Winterset stopped turning over the rent and income earned from the property. On May 15,1991, Winterset filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code. According to the Winterset monthly owners report, the net income from the property during the period from November 1, 1990 to May 15, 1991 totalled $411,887.

On November 30, 1991, NCNB assigned the note to the FDIC. During the pendency of the bankruptcy proceedings, the FDIC attempted to work out an agreement for the payment of the debt by Winterset. In a letter agreement, Winterset agreed to a payment schedule for extinguishing the note. The letter agreement also spelled out that if Winterset failed to follow this schedule: “the FDIC would be free both to pursue foreclosure against the property and to pursue its pending litigation against Mr. Fimberg,” the litigation being the suit now before the court. The agreement was attached to the reorganization plan and, therefore, according to the plan, it is a part of the entire agreement between the parties to the plan.

The bankruptcy court approved the reorganization plan on July 20,1992, but Winter-set failed to make the payments on the note as it had agreed. The FDIC then pursued the present litigation, and the trial court entered a summary judgment in its favor for $411,887, the total amount of net operating income earned from the property between November 1, 1990 and May 15, 1991.

In reviewing a summary judgment, the question is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiffs cause of action, but whether the proof establishes that the movant is entitled to summary judgment as a matter of law. TexR.CivP. 166a(e); Gonzalez v. Mission American Insurance Co., 795 S.W.2d 734, 736 (Tex.1990). Evidence favorable to the nonmovant will be taken as true and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon [85]*85v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). An appeals court should not consider evidence that favors the movant’s position unless it is uncontroverted. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

OWNERSHIP OF THE NOTE

Fimberg first contends that the FDIC failed to establish that it is the owner and holder of the note. The FDIC contends that its ownership of the note was proven by Shelley Valerius’s affidavit, which had a copy of the note attached. In Zarges v. Bevan, 652 S.W.2d 368 (Tex.1983), the Texas Supreme Court held that, when a photocopy of a note is attached to the plaintiffs affidavit and, in that affidavit, the plaintiff swears that the copy is true and correct and that he or she is the lawful owner of the note, that affidavit is sufficient summary judgment proof that the plaintiff owns the note.

In her affidavit, Valerius swears that the attached copy of the note is true and correct. She also explains that she has personal knowledge of this fact because she works as an account specialist for AMRES-CO Management, Inc., which manages assets owned by the FDIC, including those pertaining to Winterset. She additionally swears that the FDIC owns the note.

Fimberg attacks Valerius’s affidavit by suggesting that it does not affirmatively demonstrate how she came to have personal knowledge of the facts to which she attests, that it does not demonstrate her qualifications to be able to identify the note, that it does not demonstrate what connection she has with the defendant, and that her statement regarding the ownership of the note constitutes a conclusion and thus is not proper summary judgment evidence.

Fimberg’s arguments, however, fly in the face of established ease law and the plain language of Valerius’s affidavit. In J.T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128 (Tex.App.—Dallas 1983, writ ref'd n.r.e.), the court held that, where the affiant stated in his affidavit that he was a vice president and agent for the plaintiff, personal knowledge was established so that the affiant’s statement that the plaintiff was holder of the note and that a true and correct copy was attached sufficiently established that the plaintiff owned the note. See also Fair Woman, Inc. v. Transland Management, 766 S.W.2d 323 (Tex.App.—Dallas 1989, no writ) (court distinguished ease from Fulgham because the affiant did not state her employment or her connection to the parties); Sparks v. Cameron Emp. Credit Union, 678 S.W.2d 600 (Tex.App.—Houston [14th Dist.] 1984, no writ) (affiant’s job as collection manager was sufficient to give him personal knowledge of the facts alleged).1

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Fimberg v. Federal Deposit Insurance Corp.
880 S.W.2d 83 (Court of Appeals of Texas, 1994)

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Bluebook (online)
880 S.W.2d 83, 1994 Tex. App. LEXIS 1320, 1994 WL 161947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fimberg-v-federal-deposit-insurance-corp-texapp-1994.