United States v. Broussard ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30393
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILLIAM J. BROUSSARD, JR. and
STELLA JANE HEBERT BROUSSARD,
Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Louisiana
(4:95-CR-33-2)
November 1, 1996
Before JONES, DEMOSS and PARKER, Circuit Judges.
PER CURIAM:*
The United States brought suit to recover the unpaid and
overdue principal and interest on three notes executed by William
J. Broussard, Jr. (“Mr. Broussard”) and Stella Jane Hebert
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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Broussard (“Mrs. Broussard”). The case was presented to the
district court on cross motions for summary judgment based on
stipulated facts. The district court granted summary judgment for
the United States and the Broussards appeal.
FACTS
On April 29, 1983, the Broussards executed three notes
totaling approximately $73,000 evidencing loans from the Farmers
Home Administration, an agency of the United States Department of
Agriculture (the “United States”). The debt was secured by
mortgages on several items of the Broussard’s movable property.
The Broussards failed to pay the installment payments due on
January 1, 1985 and thereafter. Due to the Broussard’s default,
the United States accelerated the maturity of the unpaid principal
and interest on September 25, 1986. From November 1988 through
April 1989, the United States attempted to negotiate an agreement
for “primary loan servicing.” On April 10, 1989 the United States
notified the Broussards that it intended to continue with
acceleration of maturity of the notes.
On March 11, 1992, the Broussards tendered to the United
States a cashier’s check dated December 11, 1991 in the amount of
$40,000 as well as an Application for Settlement of Indebtedness
and the United States released the mortgages on the Broussard’s
property. The United States rejected the application, and the
Broussards appealed, using the administrative review process. The
rejection was affirmed on August 23, 1993, and the United States
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returned $3,800 of the $40,000 previously tendered. On January 26,
1995 the Broussards again tendered $3,800 to the United States and
again it was returned. On January 31, 1995, the United States
filed suit, claiming approximately $113,000 in unpaid principal and
accrued interest.
DISCUSSION
On appeal, the Broussards argue that the district court erred
in granting summary judgment to the United States in light of three
affirmative defenses: (1) the United States’ claims are barred by
the statute of limitations; (2) there has been an accord and
satisfaction; and (3) the United States required Mrs. Broussard to
execute the notes in violation of the Equal Credit Opportunity Act,
15 U.S.C. § 1691. We review the district court’s grant of summary
judgment de novo. Topalian v. Ehrman, 954 F.2d 1125 (5th Cir.),
cert. denied, 506 U.S. 825 (1992).
A. STATUTE OF LIMITATIONS
The statute of limitations applicable in this case is
contained in 28 U.S.C. § 2415(a) which state in pertinent part:
. . . [E]very action for money damages brought by the
United States . . . which is founded upon any contract.
. . shall be barred unless the complaint is filed within
six years after the right of action accrues or within one
year after final decisions have been rendered in
applicable administrative proceedings required by
contract or by law, whichever is later: Provided, That in
the event of later partial payment or written
acknowledgment of debt, the right of action shall be
deemed to accrue again at the time of each such payment
or acknowledgment.
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The United States’ right of action accrued on September 25,
1986, when the United States accelerated maturity of the notes.
This suit was filed on January 31, 1995, considerably more than six
years after the acceleration. However, the district court found
that the $40,000 tendered in March of 1992 amounted to “later
partial payment” under § 2415(a), so that the right of action
accrued again at that time.
The Broussards contend that the $40,000 was a “settlement
offer” which did not constitute an acknowledgment and which was
inadmissible under FED. R. EVID. 408 to establish liability. They
rely on Mullen v. Sears, Roebuck, & Co., 887 F.2d 615 (5th Cir.
1989) for the proposition that a settlement offer must be accepted
in order to serve as an acknowledgment that renews the statute of
limitations. Mullen provides this Court limited guidance, in that
it involved the application of a Louisiana prescriptive statute to
a tort action, rather than the application of § 2415 to a claim
based in contract. However, even if it did control the case before
us, Mullen does not support the Broussard’s position. There, we
noted that partial payment can constitute a sufficient
acknowledgment, but that the partial payment in that case, which
was accompanied by an express reservation of liability, did not.
The Broussards deny that their tender of $40,000 was a partial
payment sufficient to renew the cause of action as contemplated by
§ 2415 . Citing United States v. Lorince, 773 F. Supp. 1082, 1087
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(N.D.Ill. 1991), the Broussards contend that not every partial
payment of a debt is sufficient to start the statute of limitations
running anew under § 2415; rather, the circumstances of the payment
must reflect the intent of the debtor to honor the debt. It is by
no means clear that the Illinois district court’s reliance in
Lorince on legislative history to graft a requirement of intent
onto the partial payment provision of § 2415 is appropriate.
Further, the stipulated evidence before the district court clearly
indicated that the Broussards made a partial payment along with an
offer to pay an additional amount in the future. The cashier’s
check for $40,000 represented proceeds from the liquidation of the
property subject to the mortgages in the amount of $36,200 and an
additional $3,800 toward the unpaid balance of the notes. The
cashier’s check contained a notation in the bottom left corner,
“Compromise offer W.J. Broussard $5,800." This partial payment,
combined with the note indicating a settlement offer of $5,800, but
not conditioned on its acceptance, satisfied § 2415. We therefore
hold that the statute of limitations began to run anew in March
1992 and the suit filed in 1995 was within the six year limitations
period.
B. ACCORD AND SATISFACTION
In order to successfully base a defense on accord and
satisfaction, one must offer facts which demonstrate (1) the
existence of an unliquidated or disputed claim; (2) an offer by the
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obligor; and (3) an acceptance of the offer by the obligee.
Fischbach & Moore, Inc. v. Cajun Power Co-op, 799 F.2d 194, 198
(5th Cir. 1986). Because no evidence before the district court
created a genuine issue of material fact as to the third factor --
the United States did not accept the Broussard’s offer -- the
Broussard’s claim of accord and satisfaction fails.
C. EQUAL CREDIT OPPORTUNITY ACT
Under the Equal Credit Opportunity Act, 15 U.S.C. §
1691(a)(1), (“ECOA”) it is unlawful for a creditor to discriminate
against an applicant for credit on the basis of, inter alia, sex or
marital status. Mrs. Broussard contends that the United States
insisted that she sign the loan applications as a requirement to
extending credit to Mr. Broussard when Mr. Broussard was
independently credit-worthy and thereby violated the ECOA. Mrs.
Broussard argues that this violation of the ECOA constitutes an
affirmative defense to the United States’ efforts to collect from
her.
In a community property state, such as Louisiana, a creditor
may require the signature of the applicant’s spouse to make the
property being offered as security available to satisfy the debt in
the event of a default. 12 C.F.R. 202.7(d)(4). Because the
Broussards’ notes were secured by several acts of mortgage on
movable property to which Mrs. Broussard had a community property
claim, 12 C.F.R. 202.7(d)(4) controls. Mrs. Broussard’s ECOA
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argument is without merit.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the United States.
AFFIRMED.
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