National Credit Union Admin. Bd. v. Gray, 92-1226

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 1 F.3d 262
• Docket Number: No. 92-1226,92-1226
• Parties: NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff-Appellee, v. Rosalind D. GRAY, Administratrix of the Estate of Herman Wilson, Defendant-Appellant.
• Decision Date: 13 August 1993

Page 262

1 F.3d 262 26 Fed.R.Serv.3d 634 NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff-Appellee,
v.
Rosalind D. GRAY, Administratrix of the Estate of Herman
Wilson, Defendant-Appellant. No. 92-1226. United States Court of Appeals,
Fourth Circuit. Argued May 6, 1993.
Decided Aug. 13, 1993.

Page 263

Mark Van Lanier Gray, Greensboro, NC, argued for defendant-appellant.

Gary Hamilton Clemmons, Stubbs, Perdue, Chesnutt, Wheeler & Clemmons, P.A., New Bern, NC, argued for plaintiff-appellee.

Before HALL and WILKINS, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

K.K. HALL, Circuit Judge:

This appeal was taken from the denial of two Rule 60(b) motions to set aside the judgment against the estate of Herman Wilson. We remand with instructions to vacate the judgments against the now-deceased Wilson and against the administratrix of his estate.

I

In 1986, Craven County Federal Credit Union (Craven) loaned $38,000 to Aqualands Community Housing Development (Aqualands). The loan was secured by a deed of trust on property on which Aqualands intended to develop low-income housing. The loan documents contain the signatures of Aqualands' president, Rosalind Gray, and its secretary, Herman Wilson. Wilson's signatures are followed by the notation "(GJG)", and his purported signature on the deed of trust is not notarized (Rosalind's is).

In 1987, the National Credit Union Administration Board (National), ¹ an independent federal agency, found Craven insolvent and revoked its charter. Craven was ordered into involuntary liquidation, and National, as liquidating agent, began to collect outstanding obligations. In 1988, the Aqualands loan went into default, and National filed the instant action against Rosalind and Wilson. Aqualands was not named.

A single answer was filed on behalf of both defendants by lawyer Mark Gray, Rosalind's brother. By way of defense, the answer states that the debt was incurred by the corporation, not the individuals; that Wilson had neither signed the loan documents nor authorized anyone to sign on his behalf; and that the decision to foreclose was an election of remedies under state law that precluded the collection action.

In August, 1988, National served interrogatories and requests for admissions. Only Rosalind filed a response. In it, she reiterated her contention that the loan was to the corporation only, but she refused to answer any questions about Wilson's role. ² In response to an interrogatory, however, she did state that Wilson's name on the note was signed by a person named Greta. Rosalind added that she did not know where Greta was.

On February 5, 1990, Mark filed a motion to strike the answer of Wilson on the ground that "defendant Herman Wilson is not represented

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by me in this action" and that Wilson had not authorized the filing of an answer on his behalf. The motion was denied by order entered February 28, 1990, in which the magistrate judge instructed Mark that the proper route would be to seek leave to withdraw as counsel for Wilson. In the same order, the court ruled that Wilson would be deemed to have admitted all the items in National's requests for admissions. This latter ruling became the linchpin of the eventual judgment against Wilson and, later, his estate.

On April 9, 1990, National moved for partial summary judgment against Wilson on the basis of his "admissions". Mark filed a response on behalf of both defendants. Attached to this response was an affidavit in which Rosalind averred that Wilson never authorized his signature on the loan documents, that he was not present at the closing, that he never received a copy of the complaint or the loan documents, and that he never authorized Mark to represent him in the lawsuit. Unbeknownst to the court, Wilson had died two months earlier, on February 14, 1990.

The magistrate judge recommended that the partial summary judgment be granted. He discounted Rosalind's affidavit because it was not based on personal knowledge. The district court adopted the magistrate judge's report and entered judgment against Wilson for $54,356.21. The appeal of this judgment was dismissed as interlocutory because Rosalind was still in the case. National Credit Union Administration Board v. Wilson, No. 90-2134 (Aug. 24, 1990) (order).

In January, 1991, the court granted National's motion to substitute Rosalind, in her capacity as administratrix of Wilson's estate, as a party in place of the late Mr. Wilson. On February 5, 1991, a stipulation of dismissal without prejudice was filed that had the effect of dismissing Rosalind (in her individual capacity) without a court order. Fed.R.Civ.P. 41(a)(1)(ii).

In the context of ruling on National's motion for attorneys' fees, the district court tied up loose ends. In a final, comprehensive order entered on February 14, 1991, the district court readopted the magistrate judge's recommendation that formed the basis of the partial summary judgment against Wilson. This order also makes it clear that (1) Rosalind, as administratrix, was the defendant instead of Wilson; (2) Rosalind, in her individual capacity, was out of the case entirely; and (3) the judgment was only against the administratrix of Wilson's estate.

On February 25, 1991, Mark filed a Rule 60(b) motion to set aside the February 14th judgment. Attached to the motion was an affidavit by Greta J. Griffin. Griffin stated that she had never met Wilson and that he had never authorized her to put his signature on the loan documents. A second motion was filed on May 28, 1991. The memorandum of law accompanying the latter motion raised a number of defenses and expressly requested relief on the ground that the filing of an answer on Wilson's behalf was "presumptuous" on Mark's part.

The district court adopted the magistrate judge's report and denied the motions. The administratrix appeals.

II

The case before us is the appeal of the district court's December 20, 1991, order denying the administratrix's Rule 60(b) motions to set aside the February 14, 1991, judgment against the estate. The consideration of Rule 60(b) motions...