Federal Deposit Insurance Corporation, in Its Corporatecapacity As Liquidator of Willow Bend Nationalbank, Plaintiff-appellee, v. Katherine Mccrary, Defendant-appellant, 977 F.2d 192 (5th Cir. 1993)

Plaintiff, the 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.

* McCrary executed a promissory note (the "Note") for $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. Subsequently, 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 ("Compass"), whereby Compass purchased certain other assets of the Bank.²  The FDIC brought suit to recover on the Note. The district 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S. Ct. at 2553-54. While we must "review the facts drawing all inferences most favorable to the party opposing the motion," Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson 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 FDIC was the owner and holder 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. See Resolution Trust Corp. v. Camp, 965 F.2d 25, 29 (5th Cir. 1992). However, we stated in Camp 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." Id. For example, in FDIC 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 note contained an endorsement to an entity other than FDIC-Receiver. Id. 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 holder of the note," id. at 1255, and therefore reversed summary judgment.

Similarly, we find that McCrary has pointed to evidence in the record demonstrating a legitimate fear that the FDIC is not the owner and holder of the Note in question. In Camp, we referred to a recent case where we "reversed summary judgment 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 assumption agreement, and conveyed 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." Id.

In opposing summary judgment, McCrary pointed to the Contract for Sale between FDIC-Receiver and the FDIC, which shows certain unnamed assets of the Bank were sold to Compass and other unnamed assets were sold to the FDIC.⁷  Therefore, we find that Fleming's affidavit no longer suffices as summary judgment evidence. Id. Because this affidavit is the only proof supporting the FDIC's claim that it was the owner and 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.