1

United States Court of Appeals,

Fifth Circuit.

Nos. 94-40176, 94-40424

Summary Calendars.

FARM CREDIT BANK OF TEXAS, Plaintiff-Appellee,

v.

André C. FARISH, Defendant-Appellant,

FEDERAL LAND BANK OF JACKSON, In Receivership f/k/a Federal Land

Bank of New Orleans, Plaintiff,

v.

André C. FARISH, Defendant Counter Claimant-Appellant,

v.

FARM CREDIT BANK OF TEXAS, Counter-Defendant-Appellee.

Sept. 16, 1994.

Appeals from the United States District Court for the Western

District of Louisiana.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The Farm Credit Bank of Texas (FCBT) sued André C. Farish to

recover payment on a defaulted loan. After a bench trial, the

district court ruled in favor of the FCBT. In a separate suit

involving the same facts, Farish sued the FCBT for damages and

injunctive relief. The same district court granted FCBT summary

judgment. Having consolidated Farish's appeals, we now affirm the

district court's two rulings.

I.

A.
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We begin by reciting the facts and procedure relevant to case

number 94-40176, which is Farish's appeal of FCBT's suit against

him. In 1980, pursuant to the Farm Credit Act of 1971, 12 U.S.C.

§§ 2001-2279bb-6, Farish borrowed $355,000 from the Federal Land

Bank of New Orleans (FLB) and executed a promissory note and a

mortgage affecting real property in Louisiana. As a condition to

obtaining the loan, the Act required Farish to purchase 3,550

shares of FLB stock at a par value of $5 per share. The statute

also provided that upon repayment or default, the stock was to be

cancelled and a credit in the amount of the book value thereof

applied to the loan balance. 12 U.S.C. § 2034. The Farm Credit

Act also provided that the FLB would have (1) first lien on the

stock for the payment of any liability of the shareholders and (2)

the discretion to cancel the stock when the debtor defaulted. 12

U.S.C.S. § 2054. In 1986, Farish stopped making payments on his

loan. The FLB declared the loan to be in default and accelerated

his note. Farish then attempted to pursue loan restructuring under

the Farm Credit Act, whereby he requested that the FLB provide an

appraisal of the mortgaged real property. The FLB denied Farish's

restructuring proposal and advised Farish of its intention to move

forward with foreclosure proceedings. In order to reduce Farish's

outstanding loan balance, Farish agreed that his FLB stock would be

cancelled. In June 1989, the FLB cancelled the stock and applied

the par value to his delinquent loan balance.

The FLB then informed Farish of his right to request review of

the FLB's decision and directed him to submit a request no later
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than June 23, 1989. But Farish did not respond until June 26,

1989. Three months later, the FLB sued Farish in state court to

foreclose the real property mortgage and recover the delinquent

balance of the note. Farish responded by seeking to enjoin the

FLB's collection efforts. The state court ruled in favor of Farish

in August 1990. The court temporarily enjoined the FLB from

foreclosing because the FLB had not given him adequate time under

the Farm Credit Act to request review. The court's ruling meant

that the FLB was enjoined from foreclosing until it complied with

the Farm Credit Act's procedures. The state court did not say that

the FLB could never collect. The FLB ultimately assigned its

rights and obligations under the note and mortgage to the FCBT and

moved to dismiss the state foreclosure suit. The state court

granted the FLB's motion to dismiss. Shortly thereafter, the FCBT

sent two loan restructuring application packages to Farish

informing him of his rights under the Farm Credit Act to pursue

another restructuring application. Farish again failed to respond.

The FCBT therefore filed this diversity suit in January 1992,

seeking collection of the outstanding balance on the loan that the

FLB had assigned to it.

Farish answered by admitting the factual allegations of the

FCBT's complaint but asserting that the federal district court

should have abstained from considering the FCBT's suit because it

is governed by the Louisiana Deficiency Judgment Act (LDJA),

LA.REV.STAT.ANN. § 13:4106, and not the Farm Credit Act. He argued

that the LDJA prohibits creditors from obtaining a deficiency
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judgment against him for any amount remaining due after applying

the cancelled stock to the loan balance. Under the LDJA, a

creditor who takes advantage of a waiver of appraisement and sells

a debtor's property in an executory proceeding is prohibited from

subsequently obtaining a judgment against that debtor. Id. §

13:4106A. In effect, the creditor accepts the property of the

original sale as full payment and satisfaction of the debt.

In addition to his LDJA argument, Farish raised two estoppel

arguments. He first argued that the FCBT should be estopped from

collecting the balance on the loan because the FLB failed to comply

with the borrowers' rights provisions of the Farm Credit Act. He

also asserted that the FCBT should be estopped from collection

based on its own failure to comply with the Farm Credit Act.

After a bench trial, the district court ruled in favor of the

FCBT in January 1994. The court first reasoned that, because the

FLB proceeded against Farish's stock pursuant to the federal

statute—and not by state law executory process—the LDJA was

inapplicable. Therefore, the FLB's cancellation of Farish's stock

did not extinguish his obligation under the note. Second, the

court found that the FLB's actions did not bar the FCBT's efforts

to collect because the state court's ruling was limited to the

FLB's original collection efforts and not the FCBT's present

efforts. Finally, the court summarily dismissed Farish's final

argument that the FCBT had not complied with the Farm Credit Act.

Because Farish never particularized this allegation, the court

concluded that it was not obligated to consider this argument.
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Farish now appeals the court's ruling.

B.

We now recite the details of case number 94-40424, which is

Farish's appeal of his suit against the FCBT. The facts of this

case are the same but the procedural history, obviously, is

different. In October 1993, just before trial was to begin in the

FCBT's foreclosure suit, Farish sued the FCBT in state court,

seeking damages and injunctive relief under the Agricultural Credit

Act, which was passed in 1987 and amended the Farm Credit Act. The

FCBT removed Farish's suit to federal district court, whereupon

Farish moved to remand the case to state court. The FCBT,

meanwhile, moved for summary judgment, asserting that the

Agricultural Credit Act did not provide Farish a private right of

action.

In January 1994, the district court stayed proceedings in

Farish's suit (No. 94-40424) until the FCBT's foreclosure suit (No.

94-40176) was resolved. After ruling in favor of the FCBT in its

foreclosure suit, the court then resumed proceedings in Farish's

suit against the FCBT. The court first denied Farish's motion to

remand in April 1994, concluding that the FCBT had properly removed

Farish's suit against it. The court then granted the FCBT summary

judgment on the ground that the Agricultural Credit Act does not

provide borrowers a private right of action. Farish also appeals

this ruling. We have consolidated his two appeals.

II.

As to the FCBT's foreclosure suit (No. 94-40176), Farish
 

1The LDJA would otherwise prevent a creditor from

subsequently obtaining a deficiency judgment against the debtor

because the creditor effectively accepts the sold property

(whatever the value) as full payment of the debt. 

LA.REV.STAT.ANN. § 13:4106A. 

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appeals two issues: (1) the district court's conclusion that the

LDJA does not apply, and (2) the district court's conclusion that

the FCBT is not estopped from foreclosing because of the FLB's

previously enjoined collection efforts. We will discuss each in

turn.

A.

Farish primarily argues in this appeal that the district

court improperly concluded that the Farm Credit Act governs this

dispute. Instead, he argues, the court should have concluded that

the LDJA governs the FCBT's claim. He further claims that, because

the FCBT's suit involves the application of state law (i.e., the

LDJA), the district court should have abstained from considering

the suit.

 We review questions of law de novo. Sockwell v. Phelps, 20

F.3d 187, 190-91 (5th Cir.1994). We find that the district court

properly concluded that the LDJA does not apply to the FCBT's suit.

The Louisiana Supreme Court has established that the LDJA applies

only to situations in which a debtor's property is sold pursuant to

a writ of sale and seizure following an executory proceeding.1

Guaranty Bank of Mamou v. Community Rice Mill, 502 So.2d 1067, 1070

(La.1987); FDIC v. Kemp, 766 F.Supp. 511, 516 (E.D.La.1991). An

executory proceeding is a judicial sale where there has been no

judgment rendered in favor of the creditor. Id. The LDJA,
 

2If a stockholder defaults on his loan, the Farm Credit Act

permits a federal land bank to cancel the debtor's stock and

apply the proceeds to the loan balance. 12 U.S.C. § 2034(a). 

 

3The regulations state in relevant part:

When the debt of a holder of eligible borrower stock

issued by a production credit association, Federal land

bank association or agricultural credit association is

in default, such institution may, but shall not be

required to, retire at par value eligible borrower

stock owned by such borrower on which the institution

has a lien, in total or partial liquidation of the

debt.

12 C.F.R. § 614.5280(a). 

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however, does not protect Farish from his obligation under the note

because the stock was cancelled pursuant to the Farm Credit Act,

which governed this transaction from the beginning.2 Specifically,

the Act requires that, in return for the loan from the Federal Land

Bank, the borrower must purchase a specified amount of stock in the

bank. The stock is purchased at $5 per share, and the total stock

purchase must equal five to ten percent of the loan. Furthermore,

the Act explicitly sets forth the mechanics and remedy by which the

debtor's stock can be utilized as a source of payment towards the

loan in the event of default, and does not call for a "sale" of the

stock. The Act permits the bank to cancel the borrower's stock and

apply its value to the outstanding balance of the loan.

Additionally, federal regulations specifically provide for the

cancellation of the FLB stock upon a borrower's default.3

This procedure was contemplated in the original loan agreement

between the FCBT and Farish and is uncontested by either party.

The Farm Credit Act does not require the creditor to pursue any
 

4When Farish defaulted on his loan, the FLB was in

receivership and his stock was completely worthless. 

Nevertheless, the FLB cancelled his stock at par value. 

 

5Our holding additionally means that Farish's appeal of the

district court's denial of his motion to abstain is moot. In

particular, Farish argued that the district court should have

abstained because this suit is governed by state law. Because we

find that the suit is, in fact, governed by federal law, no

conceivable grounds for abstention exist. 

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state foreclosure proceeding before enforcing its first lien

against Farish's stock because the Act gives the lender the sole

discretion to cancel upon default or repayment. Thus, the fact

that the FLB failed to appraise Farish's stock is irrelevant. The

Farm Credit Act does not require any appraisal of the stock

purchased by Farish. In fact, an appraisal would be superfluous,

since the agreed upon price of the stock was $5 per share, and the

value was fixed by the Act despite any perceived change in "market"

value. Further, no market exists in which to trade this stock.

Even if the stock, somehow, reflected a value of $1, or even $100,

the FCBT and Farish agreed that the stock would be redeemed at $5

per share. When Farish defaulted on his loan, the FCBT cancelled

Farish's stock at par value ($17,500) pursuant to the agreed-upon

terms of the loan and the Farm Credit Act.4 An appraisal of the

stock would not provide the debtor any change in value, or added

protection from an overreaching creditor. In other words, under

these circumstances an appraisal would be meaningless. Therefore,

Farish's argument that the LDJA applies to extinguish the remaining

balance of his loan is misplaced because the LDJA has no

application to this transaction.5
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Moreover, even if the LDJA were applicable, it would be

preempted by the Farm Credit Act. Federal law preempts state law

where, as here, "the federal legislation is sufficiently

comprehensive to make reasonable the inference that Congress left

no room for supplementary state regulation," and where the state

law "stands as an obstacle to the accomplishment and execution of

the full purpose of Congress." Hillsborough County v. Automated

Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371,

2375, 85 L.Ed.2d 714 (1985). Because the Farm Credit Act governs

the treatment of FLB stock from its issuance to its cancellation,

and because the LDJA conflicts with the Farm Credit Act procedures

to the extent that it frustrates the cancellation of FLB stock,

federal law preempts state law and dictates the manner in which all

of the stock is cancelled. Therefore, we affirm the district

court's conclusion that the LDJA was inapplicable and hold that

Farish's obligations under the note are not discharged.

B.

Farish next argues the state court's injunction of the FLB's

collection efforts bars the FCBT from attempting to collect on the

note. Farish's argument, however, misconstrues the nature of the

state court's ruling. When the state court issued its injunction

against the FLB, the court made clear that its ruling applied only

to the FLB's collection efforts at that time. Specifically, the

state court ruled that the FLB had not complied with the borrowers'

rights provisions of the Farm Credit Act and ordered the FLB to so

comply before pursuing foreclosure. Thus, even if the FLB had
 

6Farish did not respond to FCBT's August 1990 communication

regarding his right to pursue restructuring. At trial, he

asserted that he did not receive either of the mailings. The

court, however, found that Farish did receive at least the

communication delivered by certified mail. 

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never assigned the note, it would not have been barred from

pursuing foreclosure, provided the FLB gave Farish more time under

the Farm Credit Act.

After the FLB assigned the note, the FCBT made independent

efforts to comply with the provisions of the Farm Credit Act and

accommodate Farish. The state court indicated that the FLB's

failure to provide Farish enough time under the Farm Credit Act was

precisely the reason it issued the injunction. Thus, the FCBT, as

the FLB's successor-in-interest, complied with the court's ruling:

it provided Farish with more time. Farish, however, never

responded, thereby sealing his fate.6 We therefore affirm the

district court's conclusion that the FCBT's collection efforts are

not estopped because the state court enjoined the FLB's collection

efforts.

III.

As to his suit against the FCBT (No. 94-40424), Farish appeals

two issues: (1) the district court's denial of his motion to

remand, and (2) the district court's summary judgment for the FCBT.

We again will discuss each in turn.

A.

Farish first contends that the FCBT's removal of his suit was

improper under 28 U.S.C. § 1446(b). Section 1446(b) states that "a

case may not be removed on the basis of jurisdiction conferred by
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section 1332 of this title more than 1 year after commencement of

the action." Id. Farish's claim is meritless. We agree with the

district court that October 1993, which was when Farish filed his

suit in state court against the FCBT, represents the controlling

time for determining removal under § 1446(b). Under Louisiana law,

Farish's suit constituted a separate and independent cause of

action. Once the state court dismissed the FLB's foreclosure suit

without prejudice in September 1990 and the FLB assigned its rights

to the FCBT, Farish was required to file a new cause of action.

Barracliff v. East Jefferson Gen. Hosp., 573 So.2d 1200, 1203

(La.App.1991) ("[w]here there are no other viable defendants

remaining in the original suit, a new suit is required"). Thus,

when the FCBT removed Farish's suit in November 1993, only one

month had elapsed from the time Farish had filed suit, a period

which is well within § 1446(b)'s one-year time constraint. We

therefore affirm the district court's denial of Farish's motion to

remand.

B.

Farish also appeals the district court's summary judgment for

the FCBT. We review a summary judgment de novo. Lavespere v.

Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 177 (5th Cir.1990).

The district court, relying on various other circuits, concluded

that the Agricultural Credit Act does not vest borrowers with

standing to enforce provisions of the Act through law suits and

granted summary judgment on that basis. See Saltzman v. Farm

Credit Services, 950 F.2d 466 (7th Cir.1991); Zajac v. Federal
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Land Bank, 909 F.2d 1181 (8th Cir.1990) (en banc); Griffin v.

Federal Land Bank, 902 F.2d 22 (10th Cir.1990); Harper v. Federal

Land Bank, 878 F.2d 1172 (9th Cir.1989). We join our sister

circuits in holding that the Agricultural Credit Act contains no

express or implied right of action for borrowers. As the Seventh

Circuit pointed out in Saltzman, Congress clearly limited

borrowers' remedies to those administrative remedies contained in

the Act. Saltzman, 950 F.2d at 467-69. We therefore affirm the

district court's summary judgment for the FCBT.

IV.

For the reasons stated above, the district court's rulings in

No. 94-40176 and No. 94-40424 are AFFIRMED.