F.D.I.C. v. Myers

• Citation: 955 F.2d 348
• Decision Date: 10 March 1992
• Docket Number: No. 91-5666,91-5666
• Parties: FDIC as Receiver for Thousand Oaks National Bank, Plaintiff-Appellee, v. Walter K. MYERS, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 348

955 F.2d 348

FDIC as Receiver for Thousand Oaks National Bank, Plaintiff-Appellee, v. Walter K. MYERS, Defendant-Appellant.

No. 91-5666

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 10, 1992.

Barry Snell, Bayne, Snell & Krause, San Antonio, Tex., for defendant-appellant.

Robert E. Hoblit, FDIC, Midland, Tex., Gregory E. Gore, Colleen B. Bombardier, Sr. Counsel, FDIC, Washington, D.C., for FDIC.

Appeal from the United States District Court For the Western District of Texas.

Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:

Walter K. Myers appeals an adverse summary judgment in favor of the Federal Deposit Insurance Corporation and the dismissal of his counterclaims in a suit to recover a deficiency judgment under Texas law. We affirm.

Background

In June 1985 Myers executed a $962,000 promissory note in favor of Thousand Oaks National Bank, secured by a deed of trust on 3.943 acres of commercial real property in San Antonio, Texas. The note matured in June 1987 with a principal balance of $750,000. In August 1987 the trustee posted on the Bexar County courthouse door a notice of non-judicial sale of the property. Thousand Oaks purchased the property for $637,920, leaving a deficiency of $189,805.97 plus interest, attorney's fees, and sale expenses.

Thousand Oaks filed a deficiency action against Myers in Texas state court. Myers counterclaimed for breach of fiduciary duty and breach of the duty of good faith and fair dealing. In September 1989 the Comptroller of Currency declared Thousand Oaks to be insolvent and appointed the FDIC as receiver. Acting in its corporate capacity the FDIC acquired Myers' note through a purchase and assumption transaction and timely removed the state court action to federal court. In March 1991 the district court denied Myers' counterclaim and granted summary judgment in favor of the FDIC, awarding the sum of $291,477.47, 6.46% post-judgment interest, and $2500 in attorney's fees. Myers' motion to amend or alter the judgment was denied and he timely appealed.

Analysis

The standard of review for a summary judgment is well settled: We review the record de novo to ascertain whether any genuine issue exists as to any material fact and, upon finding none, to ascertain whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Miles v. American Tel. & Tel. Co., 703 F.2d 193 (5th Cir.1983). Without weighing the evidence, assessing its probative value, or resolving any factual disputes, id., we merely search the record for resolution-determinative factual disputes. Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980). We review district court determinations of state law de novo. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

In his first issue on appeal Myers urges that the district court erred in granting summary judgment because the trustee violated the terms of the deed of trust by failing to place the specific time of the sale in the posted notice of sale. It is undisputed that the notice of sale stated only that the sale would occur "between the hours of ten o'clock a.m. and four o'clock p.m." It is also undisputed that p 8.3 of the deed of trust requires that the notice of sale "giv[e] notice of the time, place and terms of said sale." However, p 8.3 alternatively provides that:

Notwithstanding the foregoing provisions of this paragraph, notice of such sale given in accordance with the requirements of the applicable laws of the state of Texas in effect at the time of such sale shall constitute sufficient notice of such sale.

Texas law in effect at the time of the sale had no requirement that the specific time be given in the notice of sale. Tex.Prop.Code Ann. § 51.002 (Vernon 1987); Mabry v. Abbott, 471 S.W.2d 442 (Tex.Civ.App.1971). Myers makes no contention that the posted notice of sale failed to conform to the minimum statutory requisites of section 51.002. We find, therefore, that there were no unresolved genuine issues of material facts about violations of the deed of trust by the trustee, and conclude that summary judgment was proper as a matter of law.

Myers' second issue on appeal is that the district court erred in granting the summary judgment because of the existence of disputed facts as to deficiencies or irregularities in the sale. In essence Myers claims that the trustee "chilled the bidding" on the property by failing to advertise the specific time of sale, the nature of the property being sold, the minimum bid requested, the identity of the lender, the address or telephone number of the trustee, or other information which would have enabled potential buyers to learn about the property. Myers contends that this failure resulted in the property being sold well below market value. Myers strongly urges that the trustee could have done more to obtain a sales price nearer to the fair market value. In support of this contention Myers introduced his affidavit as a commercial real estate developer, the affidavit of Gary Young, a professional auctioneer, and that of Scott Binford, a professional real estate appraiser. The fair import of these three affidavits is that actions and inactions of the trustee caused or contributed to the sale resulting in less than the fair market value.

Myers misperceives the relevance of fair market value in the instant case. Texas law at the time of the sale did not provide that a trustee had a duty to obtain or that the debtor had a right to expect fair market value. At that time, inadequate consideration alone would not render a foreclosure sale void if...