FDIC v. Rouse, Civ. A. No. 93-1633
| Decision Date | 18 July 1994 |
| Docket Number | Civ. A. No. 93-1633,93-1634. |
| Citation | 859 F. Supp. 234 |
| Parties | FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Twin City Savings, F.S.A. v. Gary J. ROUSE, Sandra T. Rouse, Alvin J. Faucheux, Jr., and Glen A. Slavich. |
| Court | U.S. District Court — Eastern District of Louisiana |
Julie E. Schwartz, Dena Lynn Olivier, Daniel Everett LaGrone, William Peak Janvier, Liskow & Lewis, New Orleans, LA, for F.D.I.C.
Emile Louis Turner, Jr., Turner, Young, et al., Harvey C. Koch, Howard Marks, Koch & Rouse, New Orleans, LA, for Gary J. and Sandra T. Rouse, Alvin J. Faucheux, Jr.
George Paul Vedros, Cleveland, Barrios, et al., New Orleans, LA, for Glen A. Slavich.
Plaintiff's motion for summary judgment was decided this date on memoranda. For the reasons set forth below, plaintiff's motion is GRANTED.
This action was brought by the Federal Deposit Insurance Corporation, as Receiver of Twin City Savings, F.S.A. ("F.D.I.C." or "the Receiver"), in an effort to collect on continuing guarantees executed by defendants, Gary J. Rouse, Sandra T. Rouse, Alvin J. Faucheux, Jr., and Glen A. Slavich. Each defendant executed such a guarantee in favor of Twin City Savings Bank, F.S.B. As a result of these guarantees, each defendant became a surety for Holiday Tract Development, Inc. ("Holiday Tract") and G.J. Rouse Company, Inc. ("Rouse Company").1 It is these suretyship obligations that are the subject of the present lawsuit.
It cannot be disputed that the Receiver is the holder and beneficiary of the continuing guarantees. The agreements were originally executed in favor of Twin City Savings Bank, F.S.B. The Federal Savings and Loan Insurance Corporation ("F.S.L.I.C.") was appointed as receiver of Twin City Savings Bank, F.S.B. on August 20, 1987, by the Federal Home Loan Bank Board. Subsequent to the appointment of F.S.L.I.C. as receiver, Twin City Savings, F.S.A. was organized. Pursuant to a duly authorized Acquisition Agreement, Twin City Savings, F.S.A. acquired all of the assets and assumed the bulk of Twin City Savings Bank, F.S.B.'s liabilities. Among the assets acquired by Twin City Savings, F.S.A. were the various continuing guarantees that are the subject of this lawsuit.
Eventually Twin City Savings, F.S.A. was also declared insolvent and the F.S.L.I.C. was appointed as receiver. On August 9, 1989, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act, the F.D.I.C. succeeded the F.S.L.I.C. as receiver. Thus, the F.D.I.C. is the holder of the continuing guarantee agreements:
12 U.S.C. § 1821(d)(2)(A).
The Receiver, through affidavits, has established that no payments were ever made on either the Holiday Tract or Rouse Company obligations. On July 23, 1990, the 22nd Judicial District Court ruled in favor of the Receiver and against the principal obligors, Holiday Tract and Rouse Company. Judgment was, thus, rendered in favor of the Receiver and against Holiday Tract in the amount of $712,226.67, plus court costs and interest and against Rouse Company in the amount of $730,093.20, plus court costs and interest. The state court judgment also recognized the Receiver's mortgage as to various property of the debtors.
On June 12, 1991, the property affected by the judgments was sold at sheriff's sale. Following the sale, the following amounts remained unsatisfied: Holiday tract — $815,079.28 plus interest; Rouse Company — $833,014.61 plus interest.2 Following the sale of the mortgaged property, the F.D.I.C. filed the instant action, on May 17, 1993. As Receiver, the F.D.I.C. seeks to recover the deficiency owed under the Holiday Tract and Rouse Company guarantee agreements.
Defendant Alvin J. Faucheux, Jr. has not filed an answer to the Receiver's complaint and default was, thus, entered against him on September 29, 1993. The Receiver then filed a motion for default judgment. Following the submission of its motion for default judgment, the Receiver, by letter dated June 21, 1994, advised the Court that it had learned that Faucheux had filed for relief under Chapter Seven of the United States Bankruptcy Code on February 16, 1994, and had subsequently been released from all of his dischargeable debts. In accordance with the order of the Bankruptcy Court, the Court is compelled to deny the Receiver's motion for default judgment and dismiss the action.
As to the remaining defendants, Gary J. Rouse, Sandra T. Rouse, and Glen A. Slavich, the Receiver has moved for summary judgment, contending that there is no genuine issue of material fact as to defendants liability on the continuing guarantees nor as to the amount of money owed thereunder. Defendants have raised various affirmative defenses to the F.D.I.C.'s claim. The essential facts of this case are undisputed and it is ripe for summary judgment.3
The Receiver has clearly presented sufficient summary judgment evidence to establish its prima facie case. Defendants do not contend that the F.D.I.C. has failed in that regard. Rather, they assert several affirmative defenses, which they contend defeat plaintiff's claim.
Initially, the defendants argue that the debtors executed a dation en paiement4 with Twin City Savings, F.S.A. and that this transaction extinguished the obligation. In support of their contention, defendants submitted abundant summary judgment evidence. However, after reviewing this evidence, the Court cannot conclude that a single piece of it supports the contention that a dation was executed. At best, the evidence demonstrates that the parties were considering whether to do so and that the defendants did in fact execute the documents. A dation is governed by Louisiana's law of sales, La. Civ.Code art. 2659, and requires mutual consent. Merely demonstrating that Twin City Savings, F.S.A. authorized its attorneys to complete the dation does not establish the execution of that transaction.
None of the evidence presented to the Court even suggests that Twin City Savings, F.S.A. ever executed the dation.5 Rather, the evidence plainly shows that before the transaction could be completed Twin City Savings, F.S.A. was closed and its attorney's authority to execute the dation was terminated. The most that could possibly be gleaned from defendant's proffered evidence is that they executed the dation and that the bank was considering doing the same. No reasonable juror could conclude, based on the summary judgment evidence presented to the Court, that a dation was ever properly confected.6
As a second line of defense the guarantors contend that the claims asserted by the Receiver were previously settled by Twin City Savings, F.S.A. Under Louisiana law, a settlement agreement "must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding." La.Civ.Code art. 3071. Defendants have not presented the Court with a written settlement agreement or any evidence that such an agreement was ever reduced to writing. Accordingly, that defense fails as a matter of law.
Finally defendants argue that the sheriff's sale of the mortgaged property was defective. The sale was conducted pursuant to a writ of seizure and sale when the proper method was to proceed based on a writ of fieri facias. Defendants have not raised any substantive errors in connection with the sale but simply point out that the writs...
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