*Pursuant to Local Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

1 McAffee's interest is unknown. The complaint, summary judgment

evidence, and the briefs on appeal are all void of any indication

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-20040

Summary Calendar

__________________

N.J. MCAFFEE; LILLIAN GOBERT,

Plaintiffs - Appellants,

versus

FEDERAL DEPOSIT INSURANCE CORPORATION; COASTAL BANC,

Defendants - Appellees.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

(CA-H-95-74)

______________________________________________

August 1, 1996

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

In this action to quiet title, N.J. McAffee and Lillian Gobert

appeal from an adverse summary judgment granted in favor of

appellees FDIC and Coastal Banc. We affirm.

Gobert1 filed this quiet title action contending that she was
of McAffee's role in this controversy.

2 The agreed purchase price was $19,689.91.

2

the owner in fee simple of a one-acre parcel of real property

located in Wharton County, Texas ("One Acre") under an October 17,

1990 general warranty deed. The summary judgment evidence reflects

that on March 11, 1977, Gobert executed a Deed of Trust against One

Acre in favor of Colorado County Federal Savings & Loan ("CCFS&L")

as collateral for repayment of a $19,200.00 note. Gobert defaulted

and CCFS&L acquired One Acre at a foreclosure sale on October 4,

1977. Gobert's interest in One Acre ceased at this point.

CCFS&L then entered into a contract for deed with Richard

Thomas on October 20, 1977. In this contract for deed, CCFS&L

agreed to convey One Acre to Thomas upon receipt of full payment of

the purchase price.2 The contract provided that if Thomas

defaulted on the installment payments, CCFS&L could declare a

forfeiture of the contract provided that a forfeiture would not be

declared until sixty days after the payment became delinquent and

only after written notification. In 1988, CCFS&L became insolvent

and its assets, including the contract for deed, ended up in the

hands of Coastal Banc, which subsequently transferred its interest

in One Acre to FDIC.

Richard Thomas died in November 1987. Neither CCFS&L nor its

successor, Coastal Banc, ever received notification of the death

from his heirs. Payments on the contract, however, continued

through March 1989. No payments were made for April, May, and June
3

1989. On July 8, 1989, Coastal Banc sent written notification to

Richard Thomas by certified mail that failure to make the payments

would lead to forfeiture. No payments were forthcoming. Coastal

Banc declared forfeiture on September 1, 1989 at which time

Thomas's rights in One Acre were extinguished. Gobert alleges that

Rene Thomas, Richard Thomas's widow, conveyed One Acre to her in

fee simple by general warranty deed on October 17, 1990. It is

clear, however, that when Rene Thomas sought to transfer title to

Gobert, she did not have any rights in One Acre to convey. See

Johnson v. Wood, 157 S.W.2d 146, 148 (Tex. 1941).

In the district court, Gobert attempted to circumvent the

obvious fact that she had no interest in One Acre by contending

that: 1) the notice to Thomas preceding forfeiture was defective;

2) the conveyances from CCFS&L to Coastal Banc and FDIC were

ineffective because they were not recorded; and 3) the forfeiture

was void because it was accomplished without an administration of

Thomas's estate. The district court rejected all of these

arguments and granted summary judgment for Coastal Banc and FDIC.

On appeal, Gobert reiterates these contentions. We affirm for

essentially the reasons articulated by the district court.

We review a summary judgment under well-established standards.

Blakeney v. Lomas Info. Sys., Inc., 65 F.3d 482, 484 (5th Cir.

1995), cert. denied, 116 S. Ct. 1042 (1996); see Sterling Property

Management, Inc. v. Texas Commerce Bank, Nat'l Ass'n, 32 F.3d 964,

966 (5th Cir. 1994).
3 Additionally, we agree with the district court that if the notice

provisions were applicable, there has been substantial compliance.

4 Furthermore, we note that even if Gobert's evidence was

considered, it shows that record title was vested in CCFS&L, not

the Thomases. Consequently, Gobert cannot claim to be a bona fide

purchaser under § 13.001.

4

Gobert's initial contention that Coastal Banc did not comply

with the notice provisions of the Texas Property Code, sections

5.061-.063, is meritless. These provisions only apply if the real

property is used or is to be used as the purchaser's residence.

Tex. Prop Code Ann. § 5.061 (West 1984). There is no summary

judgment evidence that Thomas used or intended to use the property

as his residence. In fact, the only evidence presented is that the

Thomases resided in St. Louis, Missouri. Thus Gobert fails to

demonstrate that the statutory provisions apply.3

Gobert's second argument is that the transfers of the property

were ineffective because of failure to comply with the Texas

Recording Statute. See Tex. Prop. Code Ann. § 13.001 (West 1984).

However, as the district court noted, FDIC presented competent

summary judgment evidence establishing the validity of the

transfers of ownership and title from CCFS&L to Coastal Banc and

from Coastal to FDIC. Gobert's only evidence that the transactions

were not recorded is an unsworn, unauthenticated commitment for

title insurance that was properly rejected by the district court as

inappropriate summary judgment evidence. See King v. Dogan, 31

F.3d 344, 346 (5th Cir. 1994); Duplantis v. Shell Offshore, Inc.,

948 F.2d 187, 192 (5th Cir. 1991).4 
5

Finally, Gobert alleges that the forfeiture is void because it

could not take place without administration of Thomas's estate. As

the district court properly held, Gobert misunderstands the

controlling authority. A forfeiture of a contract for sale of land

within four years of the purchaser's death is voidable upon

application of the administrator if an administration occurs. See

Furman v. Sanchez, 523 S.W.2d 253, 258 (Tex. Civ. App.—San Antonio

1975, no writ). The forfeiture is not automatically void as Gobert

contends. Gobert presented no summary judgment evidence that there

was an administration of Thomas's estate or that an administrator

sought to void the forfeiture by Coastal Banc within the four-year

period.

The district court properly concluded that, based upon the

summary judgment evidence, FDIC has valid title to one Acre and

that McAffee and Gobert have no interest in the property. The

judgment is AFFIRMED.