* Pursuant to 5 TH C IR

. R. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-41006 Summary Calendar

_____________________

MIDSTATES RESOURCES CORPORATION,

Plaintiff-Appellee,

versus

ROGER HOSS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(G-98-CV-15)

_________________________________________________________________

January 27, 1999

Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges. *

PER CURIAM:

In this action for collection on a guaranty agreement, Roger

Hoss appeals the summary judgment in favor of Midstates Resources

Corporation. The sole issue concerns construction of a Texas

statute, quoted infra

.

Hoss owns all of the stock of Connie Corporation, and

guaranteed a loan from Midstates’ predecessor to Connie. The loan

was secured by a d eed of trust covering real estate owned by

Connie.- 2 -

After the note matured and Connie defaulted, Midstates filed

this action against Hoss for the unpaid balance of the note.

Midstates had not foreclosed on the real property securing the

debt.

The district court granted summary judgment for Midstates. In

chall enging that summary judgment, Hoss contends that he was

entitled to an offset against the note for the fair market value of

the real estate, pursuant to T EX

. P ROP

. C ODE A NN

. § 51.005, which

provides in pertinent part:

(a) This section applies if:

(1) the holder of a d ebt

obtains a court judgment against a guarantor of the debt;

(2) real property subject to a deed of trust or other contract lien securing the guaranteed debt is sold

at a foreclosure sale under Section

51.002 or under a court judgment foreclosing the lien and ordering

the sale;

(3) the price at which the

real property is sold is less than

the unpaid balance of the

indebtedness secured by the real

property, resulting in a deficiency;

and

(4) a motion or suit to
determine the fair market value of the real property as of the date of

the foreclosure sale has not been

filed under Section 51.003 or 51.004.

(b) The guarantor may bring an action in the district court in the county in which the

real property is located for a determination- 3 - of the fair market value of the real property

as of the date of the foreclosure sale....

© If the finder of fact determines

that the fair market value is greater than the

sale price of the real property at the

foreclosure sale, the persons obligated on the indebtedness, including guarantors, are entitled to an offset against the deficiency in the amount by which the fair market value,

less the amount of any claim, indebtedness, or obligation of any kind that is s ecured by a lien or encumbrance on the real property that

was not extinguished by the foreclosure, exceeds the sale price....

(Emphasis added.)

The district court held that Hoss was not entitled to an

offset against the note for the fair market value of the real

estate. It based this upon the fact that Midstates had n ot

foreclosed on the real estate.

No authority n eed be cited for our standard of review for a

summary judgment: we review it de novo , applying the same test as

the district court. Such judgment is proper if, in the light of

the summary judgment record, there is no material fact issue and

the movant is entitled to judgment as a matter of law. S ee F ED

. R.

C IV

. P. 56.

Pursuant to our de novo review of the record and our review of

the briefs, we AFFIRM

, essentially for the reasons stated by the

district court. M idstates Re sources Corp. v. Hoss , No. G-98-015

(S.D. Tex. June 26, 1998).

AFFIRMED