Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 92-2317

SRSB-IV, LTD, ET AL.,
Plaintiffs, Counter-Defendants,
versus
CONTINENTAL SAVINGS ASSOCIATION, ET AL.,
Defendants, Counter Plaintiffs,
3rd Party Plaintiffs,
versus
GERALD BROWN and BURTON STERMAN,
Defendants In Intervention,
Appellant,
versus
FEDERAL DEPOSIT INSURANCE CORPORATION,
Intervenor/Receiver,
Appellee.
-----------------------
Appeal from the United States District court for the
Southern District of Texas
-----------------------
Before HIGGINBOTHAM, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
The Federal Deposit Insurance Corporation ("FDIC"), receiver
of Mainland Savings Association, as appellee in the above
referenced case, has moved the Court to remand the case to the U.S.
District Court, in order to permit it to create a better record on
appeal regarding the issue as to whether the actions taken by the
original creditor in foreclosing on 1,000 shares of stock of a
closely held corporation, put up as collateral for the original

indebtedness herein were conducted in a commercially reasonable
fashion. Such motion recognizes, inferentially at least, that the
Trial Judge's determination that the burden of proof was on the
guarantors ("appellants" herein) to prove that the foreclosure
process was not commercially reasonable, was erroneous in light of
the holding of the Supreme Court of Texas in Greathouse v. Charter
National Bank-Southwest, 35 Tex. Sup. Ct. J. 1017 (July 1992) which
was handed down some five months after the Trial Court's ruling in
the present case. The appellants, hoping that they had found a
bird's nest on the ground, opposed the motion to remand and call on
us to reverse the Trial Court's Judgment and render judgment in
their favor relying on a recent decision of another panel of this
Court in Federal Deposit Insurance Corporation v. Payne, 973 F.2d
403 (Sept. 1992). We believe, however, that Payne is factually
distinguishable from the present case. In Payne, the FDIC neither
specially pleaded the commercial reasonableness of the disposition
of the diamond ring, nor generally pleaded that all requirements
for the effective disposition of collateral had been met; and there
was no notice of any kind to the debtor regarding the sale of the
diamond ring. Whereas, in the instant case, there were pleadings on
both sides of the issue and evidence of some actual notice to the
debtor, but the dispute was as to the "reasonableness or not" of
such notice.
Accordingly, we REVERSE the final judgment entered by the
Trial Court in this cause under date of March 2, 1992, (including
all interlocutory and preliminary judgments on liability and/or
2

damages upon which the final judgment rests) and REMAND this case
to the Trial Court for a new trial in accordance with the pleading
and proof requirements established by the Supreme Court of Texas in
Greathouse.
All other motions of either party are DENIED as moot.
3