REVISED MARCH 12, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10892

THE CADLE COMPANY,

Plaintiff - Appellee,

v.

JAMES E. NEUBAUER; PAMELA D. NEUBAUER,

Defendants - Appellants,

ROGER FISHER,

Trustee - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:01-MC-5

Before DAVIS, STEWART, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendants-Appellants James E. Neubauer and Pamela D. Neubauer and

Trustee-Appellant Roger Fisher appeal from the district court’s August 17, 2007

order denying their motions to vacate an earlier order substituting PlaintiffAppellee The Cadle Company (“Cadle”) for the Federal Deposit Insurance

Company (“FDIC”) in a registered judgment. For the reasons set forth below, we

affirm the order.

United States Court of Appeals

Fifth Circuit

F I L E D

March 10, 2009

Charles R. Fulbruge III

Clerk
No. 07-10892

1 At the time RTC filed suit, the First & Sirrine loan allegedly had an outstanding

balance of approximately $4 million.

2 The district court noted that Fisher is a trustee for trusts owned by the Neubauers,

but the exact relationship is unclear.

2

I. FACTS

The convoluted factual background to this case may be summarized as

follows: In 1985, the Neubauers guaranteed a loan in the amount of

approximately $6 million made by Home Federal Savings and Loan Association

to First & Sirrine (“the First & Sirrine loan”). Following a series of transactions,

ResolutionTrust Corporation (“RTC”) obtained an interestin theFirst & Sirrine

loan. In September 1992, RTC filed suit in the United States District Court for

the District of Arizona against the Neubauers and other defendants for alleged

defaults on a total of 14 loans, including the First & Sirrine loan.1 The FDIC

was later substituted as sole plaintiff for RTC. On January 22, 1996, the

Arizona district court entered a default judgment under FED. R. CIV. P. 54(b) in

favor of the FDIC for over $48 million on all 14 loans, assigning joint and several

liability to all defendants.

Cadle obtained an interest in the First & Sirrine loan in 1998 and filed a

Notice of Filing of Foreign Judgment in the Northern District of Texas on

January 18, 2001 pursuant to 28 U.S.C. § 1963 and registered the judgment in

that jurisdiction for purposes of execution. In 2001 Cadle moved to substitute

and/or add itself as plaintiff for a portion of the registered judgment, and the

district court granted that motion on May 14, 2001. No appeal was taken from

that order. In 2007, following lengthy discovery related to execution of the

judgment, the Neubauers and Fisher2 both filed motions to vacate the 2001

substitution order on the ground that Cadle had been improperly substituted.

The district court denied the motions to vacate in August 2007 on the ground

that its 2001 substitution order was a final order and the Neubauers’ and
No. 07-10892

3

Fisher’s 2007 motions under FED. R. CIV.P. 60(b)(3) were untimely, having been

filed more than one year after entry of the substitution order. The Neubauers

and Fisher appeal from the court’s denial of their motions to vacate.

II. JURISDICTION AND STANDARD OF REVIEW

The district court’s 2007 order denying the motions to vacate is a final

order; as such, we have jurisdiction under 28 U.S.C. § 1291.

III. LAW AND ANALYSIS

In denying the motions to vacate, the district court determined that there

was no deficiency in standing or, implicitly, in subject matter jurisdiction. We

agree. Standing requires, at a minimum, three elements: injury in fact, a “fairly

traceable” causal link between that injury and the defendant’s conduct, and the

likelihood that the injury will be “redressed by a favorable decision.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

In Lujan, the Supreme Court explained that “[a]t the pleading stage,

general factual allegations of injury resulting from the defendant's conduct may

suffice” to show standing, but when challenged by a motion for summary

judgment, more evidence is required, including “affidavits and other facts.” Id.

at 561. If such evidence is presented, whether controverted or not, it is accepted

as true and survives summary judgment; if the evidence is controverted,

standing “must be ‘supported adequately by the evidence adduced at trial.’” Id.

(quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 115 n. 31

(1979)).

Whatever standard we might apply, Cadle has shown standing. Cadle has

not relied merely on allegations in the pleadings; it has presented an affidavit

and other evidence. The affidavit of Ethan Swift attached to Cadle’s 2001

motion to substitute states in part, “Cadle succeeded to a percentage ownership
No. 07-10892

3 The Neubauers did attack the earlier affidavit of Mr. Swift attached to the Notice of

Filing Foreign Judgment for alleged formal defects, but they do not attack the formally valid

sworn affidavit of Mr. Swift attached to Cadle’s motion to substitute.

4 Although the motions to vacate might also fall within Rule 60(b)(6)’s catch-all clause

(permitting relief from a final judgment for “any other reason that justifies relief”), the district

court explained that the catch-all clause of Rule 60(b)(6) and the specific grounds for relief

established in Rule 60(b)(1)–(5) are mutually exclusive, citing Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847 (1988). Therefore the motions, which alleged

misrepresentation under Rule 60(b)(3), must be treated exclusively as Rule 60(b)(3) motions.

4

in the Judgment. Accordingly, Cadle is a judgment creditor with respect to the

Judgment described above.” The affidavit also explains the series of

transactions by which Cadle obtained its interest in the judgment, with

supporting documentation attached. The Neubauers argue that the written

documentation that Cadle attached does not establish its precise interest in the

judgment, but the Neubauers do not attack the affidavit itself.3

We are satisfied that the documents Cadle attached to its 2001 motion to

substitute, together with the affidavit, are sufficient to demonstrate—at least

with respectto standing—that Cadle has an interestin the judgment. Cadle has

satisfied Lujan’s minimum requirements: an injury (the uncollected judgment),

a fairly traceable causal connection between the Neubauers’ alleged nonpayment

and thatinjury, and the likelihood that enforcement ofthe judgment againstthe

Neubauers would redress Cadle’s injury. Cadle must prevail on the standing

challenge.

The district court also found that the Neubauers and Fisher had not

waived any rightto objectto the 2001 substitution order, which it concluded was

a final order. It characterized the Neubauers’ and Fisher’s motions as FED. R.

CIV. P. 60(b)(3) motions for relief from a final order based on “fraud . . . ,

misrepresentation, or other misconduct of an adverse party” because the motions

alleged that Cadle misrepresented that it had an interest in the Arizona

judgment.4
No. 07-10892

5

Because motions under Rule 60(b)(3) must be brought within one year

after a final order under Rule 60(c)(1), the court found that the Neubauers and

Fisher could not seek relief on that basis over six years after the substitution

order was entered. The ultimate question we must decide is whether the 2001

substitution order was a final order; if it was, then the Neubauers’ and Fisher’s

motions were properly characterized as Rule 60(b)(3) motions, and the district

court correctly concluded they were untimely.

Before addressing the question ofthe finality of the substitution order, we

first consider whether the registered judgmentin the Northern District of Texas

was a final judgment. Cadle registered the Arizona judgment in the Northern

District of Texas pursuant to 28 U.S.C. § 1963, which provides, in relevant part:

A judgment in an action for the recovery of money or property

entered in any . . . district court . . . may be registered by filing a

certified copy of the judgment in any other district . . . . A judgment

so registered shall have the same effect as a judgment of the district

court of the district where registered and may be enforced in like

manner.

Id. (emphasis added). Therefore, under the plain language of § 1963, Cadle’s

registration of the Arizona final judgment in the Northern District of Texas is

treated as a final judgment of the Northern District of Texas.

The question then narrows to whether the 2001 substitution order to a

final judgment constitutes a final order. “While it is true that most

post-judgment orders are final decisions within the ambit of § 1291, not all are.

To be final, the post-judgment order must still dispose completely of the issues

raised.” Motorola, Inc. v. Computer Displays Intern., Inc., 739 F.2d 1149, 1154

(7th Cir. 1984). Here, the district court’s 2001 substitution order fully disposed

of the issue raised—whether to substitute Cadle as plaintiff in the judgment.

Following the order, allthat remained was for the court to execute the judgment

after computing the amount that Cadle was owed under its interest in the

judgment. The district court therefore properly concluded that the 2001
No. 07-10892

6

substitution order was a final order. Accordingly, we affirm the district court’s

order denying the Neubauers’ and Fisher’s Rule 60(b)(3) motions to vacate.

CONCLUSION

For the above reasons, the district court’s order is affirmed.

AFFIRMED.
7

DENNIS, Circuit Judge, dissenting:

I respectfully dissent.

This case presents the question of whether a person who claims to have

succeeded to a judgment creditor’s interest in a federal court default judgment

has standing to enforce the judgment against the judgment debtors. Because I

conclude that the plaintiff Cadle has not carried its burden to show that it has

a direct concrete interest in the judgment, I must respectfully dissent from the

court’s opinion affirming the district court’s judgment. Instead, I would vacate

the district court’s judgment and remand the case to it for an evidentiary

hearing on the question of Cadle’s standing.

The Supreme Court’s articulation of the “irreducible constitutional

minimum” of standing under Article III is straightforward: the first and most

important element is thatthe plaintiff“must have suffered an injury in fact – an

invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992) (quotation marks, footnote, and internal

citations omitted). However, as the Supreme Court has recognized, the ability

to bring suit is not always limited to the party that suffered the injury; under

Vermont Agency of Natural Resources v. United States ex rel. Stevens, an

assignee or subrogee of the injured party's claim may also, in some

circumstances, meet the requirements of Article III standing. 529 U.S. 765,

771-74 (2000); see also APCC Servcs., Inc. v. Spring Comm. Co., 418 F.3d 1238,

1242-43 (D.C. Cir. 2005); id. at 1250 (Sentelle, J., dissenting). 

The assignee standing doctrine recognized by the Supreme Court clearly

refers to an actual assignment of an interest that secures a portion of the

recovery. See Vermont Agency, 529 U.S. at 773 (“The [False Claims Act] can

reasonably be regarded as effecting a partial assignment of the Government's

damages claim.”). Vermont Agency requires that the putative plaintiff have “a

concrete private interest in the outcome of the suit” in order to attain standing.
8

529 U.S. at 772 (quotation marks & brackets omitted) (quoting Lujan, 504 U.S.

at 573). A putative assignee plaintiff must both (1) seek to vindicate the injury

to the assignor, and (2) hold an interest “consist[ing] of obtaining compensation

for, or preventing, the violation of a legally protected right.” Vermont Agency,

529 U.S. at 772-73.

In the present case,the filings ofthe putative assignee Cadle raise serious

doubts thatthe means by which it purports to succeed to the judgment creditor’s

rights actually give it any share in the enforcement of the judgment against the

judgment debtors. Indeed, there are several obvious gaps and non-sequiturs in

the alleged transfer or assignment of the rights of the judgment creditor, FDIC,

to Cadle. 

First, Cadle has not demonstrated thatit obtained a participation interest

in the loan thatis enforceable againstthe judgment debtors,the Neubauers. The

documents and affidavit submitted by Cadle with its motion to substitute itself

as a party to the registered judgment do not establish a direct connection

between Cadle and the original loan, and there are inconsistencies in the

documents themselves, some of which reference the loan in question but others

of which only use loan numbers that do not always match the loan number on

the Arizona judgment. 

Second, even if Cadle had shown that it obtained an interest in the loan

underlying the Arizona judgment, it has never produced the participation

agreement that would govern the rights arising from that loan. A typical

participation agreement provides that the participating bank has a right that is

enforceable only against the lead bank and not directly against the debtor.

Hibernia Nat’l Bank v. FDIC, 733 F.2d 1403, 1407 (10th Cir. 1984); see also J.

Robert Stoll, et al., Lenders That Serve As Indenture Trustees: A Commercial

Banking Perspective, in Practicing Law Institute: Real Estate Law and Practice
9

Course Handbook Series (1990) (“Courts uniformly have concluded that, where

the borrower is not a party to the participation agreement, the participant in a

typical participation agreement has no direct contractual relationship with, and

does not have the rights of a creditor as against, the borrower.”). It is certainly

possible that Cadle did acquire a participation interest governed by a

participation agreementthat gives them an enforceable right against the debtor,

but since it has failed to produce the agreement (or even any testimony as to its

contents), it has not presented evidence that would contradict the default

assumption.

Further, even if Cadle had obtained a participation interest that was

enforceable against the Neubauers, the loan likely ceased to exist before (by

merger) or after (by discharge) Cadle obtained it. The Arizona judgment was

entered two years before Cadle allegedly obtained the 90% participation interest

in one of the underlying loans. At that time the loan was merged into the

judgment. See 50 C.J.S. Judgments § 704. Cadle has made no showing that it

obtained an interest in the judgment itself from the FDIC. Further, in 1998 the

FDIC issued an IRS Form 1099-C indicating that, as of December 18, 1998, the

debt had been discharged. While this is not dispositive, see, e.g., Owens v.

Commissioner of Internal Revenue, No. 02-61057, 2003 WL 21196200 at *3 (5th

Cir. May 15, 2003) (unpublished), Cadle has produced no evidence rebutting the

implication that the debt was cancelled at this time. 

Standing, of course, is an essential component of federal jurisdiction. A

defect in Article III standing is a defect in subject-matter jurisdiction that can

be raised by the parties or the court at any time, and a court is required to

address such questions when they are present. Henderson v. Stalder, 287 F.3d

374, 379 n.5 (5th Cir. 2002).
10

The district court considered the Neubauers’ standing objections only very

briefly in its opinion dismissing the motion to vacate the substitution order as

time-barred, and it appears to have misunderstood the necessary relationship

between standing and subject-matter jurisdiction. Thus the standing argument

was not fully explored or resolved below. Although we have a responsibility to

resolve the question of standing where the record on appeal will allow us to do

so, see, e.g., Splenlinhauer v. O’Donnell, 261 F.3d 113, 118 (1st. Cir. 2001), the

record is not sufficiently developed in this case to supportthis inquiry. We do not

have access to all the documents establishing the chain of interest through

which the 90% participation interest in the loan passed, nor do we have the

participation agreement or any testimony or evidence as to its provisions. This

court has not hesitated to remand cases involving standing questions for further

fact-finding by the district court when necessary. See, e.g., Martin v. Morgan

Drive Away, Inc., 665 F.2d 598, 602 (5th Cir. 1982); see also Longmire v. Guste,

921 F.2d 620, 625 (5th Cir. 1991); Pelts & Skins, LLC v. Landrenau, 365 F.3d

423, 428 (5th Cir. 2004). As in those cases, we should vacate the district court’s

judgment and remand for further proceedings.