U.S. v. Irby, 74-2957
| Decision Date | 24 June 1975 |
| Docket Number | No. 74-2957,74-2957 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Joseph H. IRBY and Ruth C. Irby, Defendants-Appellees. |
Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellant.
Joseph Sam Owen, Hollis C. Thompson, Jr., Joel Blass, Gulfport, Miss., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Mississippi.
Before CLARK, Associate Justice, * and GOLDBERG and AINSWORTH, Circuit Judges.
This suit was brought by the United States of America on behalf of its agency, Small Business Administration (SBA), against defendants, Joseph H. Irby and his wife Ruth C. Irby, for a deficiency judgment growing out of a loan by SBA to Industrial Steel & Machine Works, Inc. in the principal sum of $200,000, which loan was unconditionally guaranteed by the individual defendants. The Government alleges that default occurred in the making of payments and that the balance due on the original obligation is the principal sum of $65,568.73 plus interest.
The defendants filed answer in which they admitted that the loan had been made and that the note and guaranty instrument had been executed by defendants, but they denied default of the terms of the promissory note and denied being liable to plaintiff in the sum sued upon, and accordingly they sought dismissal of the suit.
Pretrial order was entered disclosing that the issues on which the case was to be tried involved the balance due under the note, the proper amount of any deficiency, and the method used in selling the properties securing the debt, under foreclosure sale.
At the trial it was stipulated between the parties that a default occurred under the terms of the note. The Government introduced into evidence the original promissory note, the guaranty agreement executed by the defendants, and an authenticated transcript of the account sworn to by the appropriate officer of SBA. The Government then rested and defendants moved to dismiss the suit on the basis that the Government had not met the burden of proving the amount of the deficiency and had not proved how the amount was arrived at and what credits were given against the obligation. The Government responded that a prima facie case had been proven by introduction of the exhibits, including the note, guaranty and authenticated transcript of account. The...
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