IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30676

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HENRY EDWARD DAVISON; ERNESTINE BRADLEY DAVISON,

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:11-CV-817

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

In this case, Appellants Henry E. Davison and Ernestine B. Davison

appeal the district court’s denial of the Davisons’ motion under Rule 60(b) of the

Federal Rules of Civil Procedure seeking relief from a judgment in rem in favor

of the United States. We find that the district court did not abuse its discretion

in denying the motion and we therefore affirm the district court’s judgment.

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2013

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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No. 12-30676

FACTUAL AND PROCEDURAL BACKGROUND

In 1980 and 1981, the Davisons obtained two loans from the Farmers

Home Administration (“FmHA”). The Davisons executed and delivered

promissory notes for the loans and secured payment of the notes by executing

mortgages covering two tracts of the Davisons’ farmland located in Richland

Parish, Louisiana. In June 2011, after the Davisons defaulted on the loans, the

United States filed a complaint in the district court seeking a judgment in rem

for the amounts due under the promissory notes. In their answer, the Davisons

alleged that payments satisfying their debt had been made, but not credited by

the United States.

On September 21, 2011, the United States filed a motion for summary

judgment for the full amount of its claim. The Davisons filed a cross-motion for

summary judgment asserting that “the claim alleged no longer exist[s] because

it has been paid,” R. 87, and that a portion of that repayment had been

“misapplied” by the FmHA to a “nonexistent” loan. R. 90. The district court 1

granted summary judgment in favor of the United States and, on December 27,

2011, ordered a judgment in rem against the Davisons. 

The Davisons filed a motion for a new trial on December 27, 2011 alleging,

among other matters, that the district court erred in granting summary

judgment since the Davisons had “already satisfied the notes.” R. 227. The

district court denied the motion, and the Davisons did not appeal the district

court’s denial. Instead, on May 4, 2012, the Davisons filed a Rule 60(b) motion

for relief from the district court’s December 27, 2011 judgment in rem, alleging

that the judgment had already been satisfied and had resulted from fraud

perpetrated by the United States. Specifically, the Davisons alleged that an

The district court struck the Davisons’ motion for summary judgment and their

1

memorandum in support of the motion from the record for failure to include a certificate of

service.

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FmHA official conspired with officials at First Republic Bank of Rayville,

Louisiana to divert loan payments made by the Davisons to a “dummy” account

at First Republic Bank. R. 233. According to the Davisons, “[h]ad it not been for

the fraud of the Plaintiff the debt would not remain due.” R. 234. The district

court denied the Davisons’ motion on May 23, 2012 and this timely appeal

followed.

STANDARD OF REVIEW

We review a district court’s denial of a Rule 60(b) motion only for abuse of

discretion. Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 770

(5th Cir. 1995). Under this deferential standard of review, “[i]t is not enough

that the granting of relief might have been permissible, or even

warranted—denial must have been so unwarranted as to constitute an abuse of

discretion.” Northshore Dev., Inc. v. Lee, 835 F.2d 580, 582 (5th Cir. 1988).

ANALYSIS

Among other grounds for relief, Rule 60(b) provides that “the court may

relieve a party or its legal representative from a final judgment, order, or

proceeding” because of “fraud . . . by an opposing party,” FED. R. CIV. P. 60(b)(3),

or because “the judgment has been satisfied, released, or discharged; it is based

on an earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable,” FED. R. CIV. P. 60(b)(5). The Davisons

assert on appeal, as they did in their original 60(b) motion, that they are entitled

to relief from the district court’s December 27, 2011 judgment in rem because 1)

the United States engaged in a fraudulent scheme to “convert” the Davisons’

payments, 2) the judgment was satisfied by payments that the United States

failed to credit, and 3) it is no longer equitable to enforce the judgment. Br. of

Defs.-Appellants 8–9.2

 The Davisons also assert that the district court erred by failing to hold a hearing to

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consider their Rule 60(b) motion. Because the Davisons cite no authority in support of this

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It is well established that a party “may not use a Rule 60(b) motion as an

occasion to relitigate its case.” Gen. Universal Sys. v. Lee, 379 F.3d 131, 157 (5th

Cir. 2004); see also Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 263

n.7 (1978) (“[A]n appeal from denial of Rule 60(b) relief does not bring up the

underlying judgment for review.”); Addington v. Farmer’s Elevator Mut. Ins. Co.,

650 F.2d 663, 668 (5th Cir. 1981) (holding that Rule 60(b) motion fails because

plaintiff “alleged no facts indicating that the issues raised were not open to

litigation in the former action or that he was denied a fair opportunity to make

his claim or defense in that action”); 11 WRIGHT, MILLER, & KANE, FEDERAL

PRACTICE AND PROCEDURE § 2860, at 416 (3d ed. 2012) (“[A Rule 60(b)(3)] motion

will be denied if it is merely an attempt to relitigate the case . . . .”); 11 WRIGHT,

MILLER, & KANE, supra, § 2863, at 459 (“[Rule 60(b)(5)] does not allow

relitigation of issues that have been resolved by the judgment.”). The Davisons’

Rule 60(b) motion focuses on the United States’ alleged failure to credit

payments made by the Davisons, either through fraud or mistake, but this issue

was thoroughly litigated before the district court. Indeed, some variation of the

Davisons’ allegations in their Rule 60(b) motion can be found in their answer to

the original complaint, their motion for summary judgment, and their motion for

a new trial.

CONCLUSION

Accordingly, because the Davisons’ Rule 60(b) motion is an attempt to

relitigate the underlying judgment, we AFFIRM the district court’s denial of the

motion.

AFFIRMED.

argument, and because we find none, the argument fails.

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