1 Upon the insolvency of a federally insured depository institution, the FDIC may be appointed

as receiver for the purpose of winding up affairs or liquidation of the failed institution. See 12

U.S.C.A. § 1821(c)(2)(A)(ii) (West 1989). The FDIC, acting in its corporate capacity, is

permitted to purchase the assets of a failed institution. See 12 U.S.C.A. § 1823(c), (d) (West

1989). United States Court of Appeals,

Fifth Circuit.

No. 92–1449

Summary Calendar.

FEDERAL DEPOSIT INSURANCE CORPORATION, in its Corporate Capacity as Liquidator

of Willow Bend National Bank, Plaintiff–Appellee,

v.

Katherine McCRARY, Defendant–Appellant.

Nov. 17, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaint iff, t he Federal Deposit Insurance Corporation (the "FDIC"), sought to recover on a

$30,000 promissory note executed by Katherine McCrary. The district court granted summary

judgment for the FDIC. McCrary appeals, contending that the evidence offered by the FDIC was

insufficient to support summary judgment. Finding error, we reverse and remand.

I

McCrary executed a promissory note (the "Note ") fo r $30,000 in favor of Willow Bend

National Bank (the "Bank"). After the Note matured, the Bank was declared insolvent. The FDIC

was then appointed receiver ("FDIC–Receiver"), assuming all rights, titles, and interests of the Bank.

Subsequent ly, FDIC–Receiver conveyed certain assets of the Bank to the FDIC in its corporate

capacity (the "FDIC"). 1 At the same time, FDIC–Receiver entered into a Purchase and Assumption

Agreement with Compass Bank–Plano ("Co mpass"), whereby Compass purchased certain other2 McCrary questions whether the FDIC is the actual owner and holder of the Note. See Brief

for McCrary at 9. The Contract for Sale reciting the Purchase and Assumption Agreement does

not indicate which assets held by FDIC–Receiver were sold to FDIC–Corporate or Compass. See

Record on Appeal at 27.

3 The summary judgment evidence submitted by the FDIC consisted of: (i) an affidavit of

Arthur Fleming, custodian of the documents relevant to this litigation; (ii) a copy of the $30,000

promissory note executed by McCrary; (iii) a copy of the Declaration of Insolvency and

Appointment of Receiver, dated June 14, 1990; (iv) a Contract for Sale between FDIC–Receiver

and the FDIC reciting a Purchase and Assumption Agreement concerning certain undisclosed

Willow Bend National Bank assets between FDIC–Receiver and Compass Bank–Plano; and (v)

the affidavit of Richard W. Ott, attorney for the FDIC. Fleming's affidavit was the only evidence

establishing the FDIC as owner and holder of the Note.

4 McCrary also challenges the district court's grant of summary judgment on the grounds that:

(i) Fleming's affidavit offers only unsupported conclusions and lacks material facts; (ii) Fleming's

affidavit offers only opinion testimony; (iii) no proof of demand was made for the Note; and (iv)

the Note lacks endorsements linking ownership to the FDIC. However, since we find dispositive

the issue whether Fleming's affidavit is sufficient summary judgment evidence of ownership of the

Note, we need not address these other issues on appeal. assets of the Bank. 2 The FDIC brought sui t to recover on the Note. The distri ct court granted

summary judgment in favor of the FDIC. 3 McCrary challenges the decision of the district court,

contending that Fleming's affidavit is insufficient summary judgment evidence to prove ownership of

the Note. 4

II

We review the district court's grant of a summary judgment motion de novo. See Davis v.

Illinois Central R.R., 921 F.2d 616, 617–18 (5th Cir.1991). Summary judgment is appropriate if the

record discloses "that there is no genuine issue of material fact and that the moving party is entitled

to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the

initial burden of identifying those portions of the pleadings and discovery on file, together with any

affidavits, which it believes demonstrates the absence of a genuine issue of material fact. S ee Celotex

Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553–54, 91 L.Ed.2d 265 (1986). Once the

mo vant carries its burden, the burden shifts to the non-movant to show that summary judgment

should not be granted. I d. at 324–25, 106 S.Ct. at 2553–54. While we must "review the facts

drawing all inferenc es most favorable to the party opposing the motion," R eid v. State Farm Mut.

Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), such party may not rest upon mere allegations or5 In order to recover under the Note, the FDIC must prove that: (1) the defendant signed the

Note; (2) that the FDIC is the present owner or holder of the Note; and (3) that the Note is in

default. See Resolution Trust Corp. v. Marshall, 939 F.2d 274, 276 (5th Cir.1991). McCrary

does not contest that she is the signatory on the Note. See Record on Appeal at 6 (McCrary's

Original Answer admitting she executed the Note). From the face of the Note, the maturity date

of February 12, 1990 has long since passed. Defendant has failed to offer any proof she is not in

default and does not argue this issue on appeal.

6 Fleming's affidavit states in Paragraph 4:

e. Among the assets conveyed by the Federal Deposit Insurance Corporation as

Receiver to the FDIC was the Note, and all rights, claims, and causes of actions

appurtenant thereto. Accordingly, FDIC became the true party of interest herein,

authorized and empowered to institute and prosecute this action against

Defendant.

f. FDIC is the owner and holder of the Note and all rights, claims and causes of

action appurtenant thereto.

Record on Appeal at 23. denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for

trial. A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202

(1986).

III

McCrary maintains that there is no evidence proving that the FDIC is the holder of the Note. 5

In support of its motion for summary judgment, the FDIC offered Fleming's affidavit stating that the

F DIC was the owner and hol der of the Note. 6 McCrary argues that this affidavit is insufficient

summary judgment proof. We agree.

The affidavit of an employee who is the custodian of records, generally suffices as proof of

a note's ownership for summary judgment. S ee Re s olution Trust Corp. v. Camp, 965 F.2d 25, 29

(5th Cir.1992). However, we stated i n C amp that we "would not hesitate to reverse summary

judgment had Appellants pointed to evidence in the record to the effect that they had a legitimate fear

that the RTC was not the owner and holder of note in question and that some other entity might later

approach them demanding payment." I d. For example, in F

DIC v. Selaiden Builders, Inc., 973 F.2d

1249 (5th Cir.1992), FDIC–Receiver offered two affidavits based upon the personal knowledge of

the affiants, both claiming FDIC–Receiver to be owner and holder of the note in question. The note7 The relevant provision of the Contract for Sale between FDIC–Receiver and the FDIC states:

WHEREAS, the Receiver proposes to enter into a Purchase and Assumption

Agreement with Compass Bank–Plano, Texas, a Texas Banking Corporation

(hereinafter the Assuming Bank) by which the Assuming Bank will purchase the

assets and assume the deposit and certain other liabilities of the Bank as shown by

the Bank's books....

Record on Appeal at 27.

NOW, THEREFORE, in consideration of the mutual promises herein set forth and

other valuable consideration, the Receiver and the Corporation hereby undertake,

promise, covenant, and agree with each other as follows:

SECTION 1. PURCHASE OF ASSETS

1.1 Assets Purchased. The Receiver does hereby sell to the Corporation all the

Receiver's right, title, and interest in all assets not purchased by the Assuming

Bank pursuant to the Purchase and Assumption Agreement and all assets

subsequently reacquired from the Assuming Bank by the Receiver....

Record on Appeal at 29.

The Contract for Sale contained in the summary judgment record fails to list which

assets were transferred to what entity. contained an

endo rsement to an entity other than FDIC–Receiver. I d. at 1253–54. Because

FDIC–Receiver failed to prove the non-existence of this entity, we held that the endorsement created

a "real question as to the identity of the owner and hol der of the note," i d. at 1255, and therefore

reversed summary judgment.

Similarly, we fi nd t hat McCrary has pointed to evidence in the record demonstrating a

legit imat e fear that the FDIC is not the owner and holder of the Note in question. In C amp

, we

referred to a recent case where we "reversed summary judgement because of evidence in the record

that FDIC, as receiver of a failed institution, had conveyed certain assets of the failed bank to another

bank in a purchase and assum pt ion agreement, and convey ed other assets to FDIC–Corporate

pursuant to a contract of sale." Camp, 965 F.2d at 29 n. 1. We concluded that "appellants

... had

demonstrated a real question as to the identity of the owner and holder of the note in question." I d.

In opposing summary judgment, McCrary pointed to the Contract for Sale betwe e n

FDIC–Rece iver and t he FDIC, which shows certain u nnamed assets of the Bank were sold to

Compass and other unnamed assets were sol d to the FDIC. 7 Therefore, we find that Fleming's8 Aside from the affidavit, the FDIC can only show ownership through the possession of an

unendorsed note, which cannot suffice as summary judgment proof. See Camp, 965 F.2d at 29

("[M]ere possession of the original of an unendorsed note payable to the order of another is not

alone sufficient evidence under Texas law to prove one is the owner and holder."). affidavit no longer suffices as summary ju dgment evidence. I d. Because this affidavit is the only

proof supporting the FDIC's claim that it was the owner a nd holder of the Note, 8 we find that the

district court erred in granting summary judgment.

IV

For the foregoing reasons, we REVERSE and REMAND.