* Pursuant to 5th Cir. R. 47.5, the Court has determ ined th at this opinio n s h ould not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED April 5, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60470 Summary Calendar

PAUL H. LEWIS & SHELIA A. LEWIS, Pl aint iffs-Appellants,
versus UNITED STATES DEPARTMENT OF AGRICULTURE/ FARM SERVICE AGENCY, Defendant-Appellee.
Appeal from the United States District Court fo r the Northern District of Mississippi
Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * This appeal arises from th e district court’s grant of summary judgment to the United States Departm ent of Agriculture-Farm Service Agency (“FSA”) and parti al grant of summary judgment to Paul and Shelia Lewis (the “Lewises”). We affirm the district court’s judgment.2 I. FACTUAL AND PROCEDURAL BACKGROUND On February 11, 1987, th e Lewises’ executed two farm lo ans wit h FSA, fo rm erly the Farmers Hom e Administ ration, fo r th eir catfish operation. Loan 44-05, due January 1, 1988, had a face value of $101,000.00 bearing 7.5 % int erest. Neither party contests that all applicable statutes of limit ations have run on Loan 44-05. Loan 44-06, due in sixteen annual installments of $6,760.00, had
a face value of $72,591.38 bearing 4.5 % int erest. Loan 44-06 contained an optional acceleration clause, which stated th at “t he governm ent at i ts option may declare all or any part of any such indebtedness immediat ely due and payable.” The Lewises missed the first two payments for Loan 44- 06, due on January 1, 1988, and January 1, 1989. In response, on June 14, 1989, the FSA sent an At tachment 9 notice under 7 C.F.R. § 1951.907(f)(3), entitled “Notificat io n of Intent to Accelerate
or Continue Acceleration of Loans and Notice of Your Rights” (the “Notice”). The Notice advised th em of th e amo unt overdue , $87,267.45, and right to apply fo r lo an service programs. The Notice also stated th at FSA sent th e Lewises a copy of an Attachm ent 1 notice on November 11, 1988, which notified th em of th e overdue debt and provided information about farm loan programs. In 1994, FSA received $1,835.00 from the income tax refund of Shelia Lewis pursuant to the administ rative of

fset allowed in § 1951.121-124. In October 2003, the FSA Mississippi State Settlement R eview Commi ttee reviewed Loan 44-06 and recommended to classify the loan as “currently not collectible.” The Settlement Review Co mmittee then certified the loans to the Treasury Departm

ent fo r of fset pursuant to 31 U.S.C. §§ 3711 and 3716 because an invest igation revealed no assets available to sati sfy a judgment lien. On April 22, 2004, the Treasury Department transferred the Lewises’ delinquent account to a private collection agency.3

The Lewises’ filed suit seeking to enjo in the FSA from collecting on the two farm lo ans. They also sought a declaratory judgment th at the statutes of limit ations had run fo r regular collection and administ rative of

fset. FSA conceded that the statutes of limitations had run on Loan 44-05 and both parties mo ved fo r summary judgment on the remaining issues. The district court granted in part and denied in part the Lewises’ motion for summary judgment and granted FSA’s motion for summary judgment. The court reasoned that the six year statute of limitations under 28 U.S.C. § 2415(a) prevented collection on the installments due from January 1, 1988, to January 1, 2000; and the ten year statute of limit ations under 31 U.S.C. § 3716(e) prevented collection on the installments due from January 1, 1988, to January 1, 1996. FSA could still co llect payment, however, on all inst allment s due aft er th ese dates. Accordingly, the district court enjoined FSA from attempting to collect on the time-barred installments. The Lewises timely appealed the district court’s judgment, arguing th at th e statutes of limit ations fo r Loan 44-06 began to run against the entire debt at the time of th eir default on the first scheduled payment. II. STANDARD OF REVIEW We review de novo th e district court’s grant of summary judgment, applying the same legal standards as th e district court. M achinchick v. P.B. Power, Inc. , 398 F.3d 345, 350 (5th Cir. 2005). In deciding a mo tion fo r summary judgment, the court must determ ine whether the submissio ns show th at no genuine issue exists as to any mat erial fact and th at the mo ving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Hart v. Hariston , 343 F.3d 762, 764 (5th Cir. 2003). In deciding whether a fact issue has been created, the facts and inferences must be reviewed in the light
mo st favorable to the nonmoving party. Reeves Brokerage Co. v. Sunbelt Fruit & Vegetable Co. , 336 F.3d 410, 412 (5th Cir. 2003).4 III. DISCUSSION If a borrower defaults on his farm lo an, the FSA implement s a collection process set fo rth in 7 C.F.R. § 1951.907 (a)-(h). These regul ations determine the type of notice sent to the borrower based on th e status of th e lo an. In this case, the FSA determined that § 1951.907(f) applied because th e Lewises’ payments were more than 180 days delinquent and not yet accelerated by the agency. The Lewises do not di spute this assertion. Attachments 1 and 2 notices inform borrowers of an outstanding debt and about lo an service programs. To appl y fo r the loan service programs, the borrower m

ust com plete an application wit hin fo rty -five days aft er receipt of At tachments 1 and 2 notices. If the borrower fails to respond in a timely manner or submits an incomplete form, and the FSA has not accelerated th e account, then the agency sends an At tachment 9 notice pursuant to § 1951.907(h)(2). An Attachment 9 notice includes the amo unt of the borrower’s debt and provides options to avoid lo an acceleration. An At tachment 9 notice also states that FSA will accelerate the borrower’s farm loans but does not indicate acceleration and makes no demands for payment. The collection of farm lo ans are subject to two statutes of limit ations: 28 U.S.C. § 2415 and 31 U.S.C. §3716. Section 2415 reads that actions for money damages brought by the United States “shall be barred unless the com plaint is filed wit hin six years after the right of the action accrues . . . . The provisions of this section shall not prevent the United States or an officer or agency thereof from collecting any claim of th e Unit ed States by means of administ rative of fset, in accordance wit h section 3716 of Ti

tle 31.” 28 U.S.C. § 2415(a) & (i). Section 3716 prevents the administrative offset of “a claim under this subchapter th at has been outstanding fo r mo re th an 10 years . . . .” 31 U.S.C. § 3716(e)(1). The applicable regulations define “outstanding” under this subchapter the same as “accrue” under § 2415(a). 31 C.F.R. § 901.3.5

The Lewises argue that their default on the first installment triggered the limit ations period under § 2415(a). We address the issues of whether the statutes run on each installment as payment becomes due or on th e entire debt amo unt aft er default on one installment. We also determine whether FSA’s actions and conduct amount to acceleration of Loan 44-06 even th ough FSA never sent notice of acceleration. The Fift h Circuit has not ruled on these issues in the context of inst allment government lo ans when th e debtor never made any payments. S ee United States v. Bloom , 112 F.3d 200, 204-05 (1997). The Lewises cite S MS Fin., LLC v. ABCO Homes, Inc. , 167 F.3d 235 (5th Cir. 1999), and FDIC v. Belli , 981 F.2d 838 (5th Cir. 1993), fo r the pr oposi tion that their default on the first scheduled payment, January 1, 1988, triggered the statute of limit ations as to the entire debt amo unt. SMS and Belli are distinguishable from the instant case. In S MS , the parties agreed th at the statute of limit ati ons ran against the entire debt on the maturation date. The case primarily dealt with whether th e plaint iff received th e benefit of a tolling provision under § 2415(a). 167 F.3d at 242. In Belli , a bank demanded full payment under two guarantees and a prom issory note. 981 F.2d at 839. The following year, the FDIC was appointed receiver of the Bank, and in its corporate capacity, th e FDIC purchased th e notes and continuing guarantees. Id. The FDIC filed suit more than six years lat er, seeking to recover th e outstanding balance on the prom issory note, as well as the amo unt due
on th e continuing guarantees. Id. T he court held th at the FDIC’s claims were time barred, reasoning th at Neither th e FDIC nor th e opinio ns on which it relies point to authori ty fo r the proposition th at a transfer from one party to another of a cause of action that has already accrued som

ehow effects a new accrual fo r purposes of § 2415(a). To th e contrary , th e ordinary usage of the term “accrues” is th at a cause of action “accrues”6

when “it comes into existence.” Assignment of a cause of action that has already accrued does not ordinarily re-commence the limitations period. Id. at 840. In this case, the district court relied upon the Ninth Circuit’s holding in U nited States v. Dos Cabezas Corp ., 995 F.2d 1486 (9th Cir. 1993). The D os Cabezas court concluded th at a creditor may no t h old a debtor l iable o n future installments when the contract contains an optional acceleration clause. Therefore, “unless the creditor exercises the option, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due.” Dos Cabezas Corp ., 995 F.2d at 1490 (citations omitted). The Lewises argue th at Dos Cabezas runs afoul of Fift h Circuit precede nt . We read D os Cabezas and Belli as pronouncing consistent statem ents of law. The FSA did not receive this debt from a thir d party aft er acceleration. Here, the debt arose from a contractual loan agreement between th e Lewises and th e FSA, and th e FSA never accelerated Loan 44-06 pursuant to the governing regulations. This reasoning comports with the interpretation of § 2415(a) from other Circuits in the context of federal inst allment contracts. See , e.g. , E lephant Butte Irr. Dist. of N.M. v. Dep’t of Interior , 160 F.3d 602 (10th Cir.1998); Bd. of Trs. of Dist. No. 15 Machinists’ Pension Fund v. Kahle En g’g Corp. , 43 F.3d 852 (3rd Cir.1994); U nited States v. Feterl , 849 F.2d 354, 356 (8th Cir.1988); Trs. for Alaska Laborers-Construction Inds. Health and Sec. Fund v. Ferrell , 812 F.2d 512 (9th Cir.1987); United States v. Alessi , 599 F.2d 513, 515 (2d Cir.1979). Accordingly, we hold th at th e statutes of limit ations in § 2415(a ) an d § 3716(e)(1) run from the due date of each inst allment
. Alt ernatively, the Lewises argue that the Notice dated June 13, 1989, demonstrat es acceleration of Loan 44-06, and thus, it triggered the statutes of limit ations as to the entire debt7

amo unt on both lo ans. The Notice informed the Lewises that they were $87,267.45 in arrears on the two government lo ans. This calculat io n includes the entire amount of Loan 44-05 and the two delinquent inst allment s of Loan 44-06 . The Notice sent to the Lewises indicates that FSA will accelerate th e lo an u nless the borrower pay s his outstanding loan amount, lists servicing options, provides steps to be taken to avoid acceleration, and gives info rmation about what will happen if the borrower does not respond to th e notice. The form reads that “if you do not respond to this notice

. . . FmHA will accelerate or continue acc eleration of any loans . . . .” The requi sit e acceleration
n oti ce under 1955(d)(2), on the other hand, contains unequivocal language stating “Notice of Acceleration of Your Debt to th e Farmers Hom e Administ ration and Demand fo r Payment of th at Debt.” The plain language o f the regulations directing the sequence of collection notices, and the FSA’s com

pliance wit h th e regulations, do not indicate th at the agency accelerated Loan 44-06 at any point in t ime. Therefore, the ten-year statute of limitations for administ rative of fsets applied to the inst allment s as they became due. Conclusion Loan 44-06 required the Lewises to pay annual inst allment s over a period of sixteen years. The six-year statute of limit ations fo r mo ney damages, pursuant to § 2415(a), has run fo r inst allment s due between January 1, 1988, and January 1, 2000. The ten-year statute of l imit ations for administ rative of

fsets, pursuant to § 3716(e), has run fo r inst allment s due between January 1, 1988, and January 1, 1996. For the foregoing reasons, we affirm the district court’s judgment.