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Assignee of FDIC Judgment is Time-Barred from Collecting

Sobranes Recovery Pool v. Todd & Hughes Constr. Co., ---F.3d---, 2007 WL 4181680 (C.A. 5, Nov. 28, 2007)

In June 1984, Todd & Hughes Construction Company (THCC) executed a $10.3 million All Inclusive Deed of Trust Note in favor of Western Savings Association. In June 1985, THCC signed a renewal and extension of the Note, and Randall Hughes, Gordon Todd, and Thomas Todd each guaranteed it. In July 1985, THCC, Western Savings, and BBC Olympic agreed to an Assumption and Consent Agreement which was to mature on June 1, 1987 under which BBC assumed without recourse the Note obligations of THCC.

In 1986, Western Savings was placed in receivership and its assets transferred to the FSLIC, including the Note and guarantees involved here. In August 1991, the FDIC (as Manager of the FSLIC Resolution Fund) sued THCC, T. Todd, G. Todd, and R. Hughes on the Note and guarantees. The District Court entered judgment in favor of the FDIC in October 1992, and an abstract of judgment was filed in January 1993.

Through a series of assignments, Sobranes Recovery Pool inherited the judgment in October 2004. Meanwhile, a writ of execution was issued in April 2003. In July 2005, Sobranes filed a motion requesting a declaratory judgment that assets held by Hughes' wife were subject to execution, appointment of a receiver for successor entities to THCC, and/or an accounting of assets held by Hughes' wife and the successor companies.

The Defendants argued that collection of the judgment was barred by Texas law which required a writ to issue within ten years from entry of judgment. Sobranes countered that under the FDCPA the FDIC was not affected by state limitations periods and, as the FDIC’s assignee, it should have the same benefit.

The District Court denied Sobranes' motion on the limited ground that Sobranes failed to demonstrate that it was a proper party to invoke the FDCPA exception to the dormancy of the judgment under Texas law. Sobranes appealed.

The Court of Appeals held that whether Sobranes was entitled to invoke the FDCPA was a question of statutory interpretation. The FDCPA was passed to create a comprehensive statutory framework for the collection of debts owed to the United States government. It provides the exclusive civil procedures for the United States to recover a judgment on a "debt" as defined in the Act.

The statutory definition of "debt" specifies amounts owing to the United States--either the result of direct loans by the U.S. or the result of loans insured or guaranteed by the U.S. The Court held that the Note and judgment did not fall in either category. A broader portion of the definition refers to "other source of indebtedness to the United States", but that portion is limited to obligations "not owing under the terms of a contract originally entered into by only persons other than the United States." The Court held that the broader definition did not aid Sobranes.

The Court held that because there was no "debt" as defined by the FDCPA, it did not need to address the ability of private-party assignees of the government to invoke the FDCPA, or what statute of limitations the government enjoys under it. Under F.R.Civ.P. 69(a), state law governs execution on the judgment. The District Court entered judgment against the defendants in October 1992 and an abstract of judgment was filed in January 1993. The only writ of execution to issue was dated April 3, 2003, more than ten years after the entry of judgment, leaving the judgment dormant under Texas law.

The judgment denying Sobranes' motion was affirmed.



The Fifth Circuit Court of Appeals affirmed the decision of the district court.

 

 

Judge(s): Patrick E. Higginbotham, Circuit Judge
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Civil Remedies , Finance / Banking , Government / Politics , Property
 
Appellant Lawyer(s) Appellant Law Firm(s)
David Pavek David Pavek & Associates

 
Appellee Lawyer(s) Appellee Law Firm(s)
Mark Hamblin How How Freds Rohde Woods & Duke

 

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recovery assigned the judgment to sobranes; the district court received notice "judge walker's dissent provides better guidance for us than does the majority opinion"). id. at 551. elect to do. id. at 318. discretion review in such cases, we held that de novo review applied because "the specific issue i h. r. rep. no. 101-736, at 24 (1990), as reprinted in 1990 u.s.c.c.a.n. 6630, 6631. 6 using this as an interpretive lodestar, the court gave great weight concerns, we are not. as we hold there is no fdcpa debt, we need not address within the scope of subpart (b), the final clause prevents the judgment here from 26 the government." 354 f.3d 378, 382 n.4 (5th cir. 2003). the district court adopted the of a contract originally entered into by private parties, whereas in national 38 (may 6, 2005). compounding the offense, sobranes credited by citation the second circuit on the applicable law, and the applicability of the fdcpa is not "effectively guaranteed the loan. nor does it matter, as sobranes has suggested, that the rather, the amounts owing to the united states that are qualifying debts are statute, as written, contains no language suggesting that all debts subject to franchisees, unsupported earnings claims, failure to provide required sobranes argues that resolving the issue of whether the judgment is a debt taken over by federal regulators. if the federal government seeks from going dormant, and that sobranes could not invoke the fdcpa to evade a debt as hughes and his wife executed the partition agreement in july 1988. the partition judgment does not create an obligation between the debtor and holder that is "owing under the terms of a contract" between private parties even if the private although under the last antecedent rule, "a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it bongiorno, 106 f.3d at 1038. agreement and modification of real estate note and lien," under which bbc comma before the phrase `without due process of law' indicates that the phrase modifies `life,' that the judgment is dormant," and noted that "the parties also agree that the 14 nor is the latter applicable. the phrase "insured or guaranteed" by the while the majority concluded that the fdcpa was inapplicable. in jalapeno property management, llc v. district court's judgment on any grounds supported by the record"9 insured, but rather focuses on whether the united states has insured or before analyzing the applicability of the fdcpa, the district court framed h. r. rep. no. 101-736, supra, at 28. in at least two filings below, including in its executing on the judgment, its order is a final decision, and we have jurisdiction. united states indicates that the types of loans covered are those where the fdcpa was inapplicable because any backpay award the government collected review of a district court's dismissal of a declaratory judgment action is appropriate when the 11 id. use the fdcpa to collect restitution for victims: v. whether we would reach the same outcome as the second circuit on the facts it congress passed the fdcpa "to create a comprehensive statutory lawyers' recovery & litigation services, inc. on october 28, 2004, lawyers' section explains that the fdcpa provides procedures for the government "to not applicable because the united states was not a party to the underlying loan: "the capacity were subject to execution to satisfy the judgment. it also sought to assumption note was to mature on june 1, 1987. federal government has agreed to cover a lender's losses in the event the debtor `liberty,' and `property.' this obviously follows the grammatical rule." stepnowski v. c.i.r., 456 the judgment is not a "debt" under the fdcpa because the underlying notes and hughes (collectively, defendants) in favor of the fdic under the federal debt 2004), is similarly unhelpful. labor relations act against an employer.30 8 qualifying language "on account of." v. matthew/muniot family, llc, 322 f.3d 835, 838 (5th cir. 2003). similarly, in cole v. city a judgment on the note, and then assigned the judgment to a private party. the private-party 1 to his neighborhood bank or thrift and takes out a business or the language it employed."). f.3d 260 (5th cir. 1998), shaid is not relevant. shaid held that a judgment owned by the and sobranes' objections to the magistrate's decision explicitly made the 24 limited ground that sobranes has failed to demonstrate that it is a proper party 9 nor does the case law compel a id. 3002(8). 28 u.s.c. 1291 gives this court jurisdiction to review did not alter the terms of note and guarantee to pay anyone for losses suffered faced, but rather conclude only that the second circuit's analysis does not 7 25 only persons other than the united states,' rendered the statute inapplicable." 265 f.3d 506, b 12 on july 1, 2005, sobranes, turning to enforcement of the judgment, filed for the fifth circuit nor is united states v. golden elevator, inc., 868 f. supp. 1063 (c.d. ill. 1994), the underlying notes were agreements between private parties that the fdic important as these concerns are, congress did not create a statutory those that result from loans insured or guaranteed by the united states. the 916 (6th cir. 2002) (same); unocal corp. v. united states, 222 f.3d 528, 544 (9th cir. 2000) of debt on facts that parallel those here. nor has our research uncovered any published the fdic did not execute on the judgment itself, but rather assigned the 39 cir. 1992) (per curiam) (allowing the sba to utilize the surcharge provisions of the fdcpa the exclusive civil procedures for the united states to recover a judgment on a abandons all issues not raised and argued in its initial brief on appeal. . . . a party who years after the entry of judgment.38 no. 06-10912 (b) an amount that is owing to the united states on account of a fee, sobranes' brief and reply brief are in great if not complete tension over judgment obtained by the fdic falls squarely within subpart (b)'s limitation, although sobranes has abandoned any argument that the judgment is not not mean that the fdic began to "insure or guarantee" the note; the government no. 06-10912 the subpart confirms this reading. the list of qualifying types of debts begins opposition to motion for rehearing of melanie hughes' motion for protective order, at p. 14 government was, therefore, the formal owner of the judgment. finally, we individuals under the mandatory victims restitution act.25 and subpart (a) is plainly not relevant, the judgment does not qualify as an nlrb v. e.d.p. medical computer systems, inc. the second circuit held that the starting point of our analysis is, as always, the text of the statute in this appeal, sobranes has made no mention of the note and guarantee agreements however, in september 1986, western savings association was placed into n.3 (11th cir. 1984); quindlen v. prudential ins. co. of am., 482 f.2d 876, 878 (5th cir. 1973). consultants is that here the fdic was seeking only to recover under the terms would help to enforce federal labor laws.32 we begin with an observation regarding the phrase "an amount that is engagement or a condition subsequent. 4. one to whom a guarantee is made." black's law 10 our review of the statutory language and legislative history within 10 years after the rendition of a judgment of a court of record or a justice court, the as manager of the fslic resolution fund.2 that the judgment becomes dormant."). framework for the collection of debts owed to the united states government."10 brief, 23 authority to enforce the ftca. that is, the judgment the ftc recovered was not the nlrb could use the fdcpa to enforce a backpay award under the national no. 06-10912 patrick e. higginbotham, circuit judge: sojourner t v. edwards, 974 f.2d 27, 30 (5th cir. 1992). no. 06-10912 november 28, 2007 22 incurred by the united states, or other source of indebtedness to the 28 u.s.c. 3001(a)(1). consistent with our reading of the statute and brooks' description: "`debt' is was time-barred under texas law because no writ of execution issued within ten a contract originally entered into by only persons other than the united states." qualified as a debt.27 15 procedures. this is true even if the bank or thrift later fails and is commission act (ftca) for material misrepresentations to potential fdic was dormant under texas law; the opinion contains no analysis of the applicability of award as was initially the case here when the fdic was the sole owner of the analysis of the dormancy issue. it is not surprising that the district court did not j. randall hughes 9 magistrate's recommendation, concluding that "[sobranes] therefore cannot rely that led the fdic to amend its complaint in march 1992. to the extent sobranes has any the court has not located) any instance where a private party such as sobranes, a receivership and its assets including the notes and guarantees involved here source of the judgment. similarly, a judgment is defined as "a judgment, order, of a sum of money in the event of a loss. 2. to issue or procure an insurance policy on or for"; 509 (6th cir. 2001). the sixth circuit did not reach this question on appeal, reversing the because the original promissory note between caddo and cti was not a `debt' owing to the 28 u.s.c. 3001 et seq. 4 writ of execution to issue is dated april 3, 2003, which occurred more than ten 376 f.3d 317 (5th cir. 2004). court did rule that the judgment is dormant under texas law. unreviewable on appeal from a final judgment."7 debt, or otherwise to assert rights or benefits under the fdcpa." rather, the meaning of the statute's text, and for its interpretation of the statute's purposes different grounds. the court explained that "sobranes has not identified (and 2 mrs. hughes and the successor companies argued, inter alia, that even fdcpa debt. overpayment, fine, assessment, penalty, restitution, damages, guarantees. the fdic filed an amended complaint in march 1992, adding todd see inhabitants of montclair twp. v. ramsdell., 107 u.s. 147, 152 (1883) ("it is the united states, 324 u.s. 229, 233 (1945)) (internal quotations omitted). or criminal proceeding regarding a debt."21 13 congressman brooks' explanation of the meaning of debt because of the striking possession of the notes and guarantees, and in august 1991, the fdic brought applies to the whole list and not only the last item.19 helpful to sobranes. the sba took possession of a note entered into between a private party the united states" and is therefore a "debt" . . . . the district court held that sobranes could 31 (a) an amount that is owing to the united states on account of a c drafted with the intent to authorize independently the use of the fdcpa in a point in its opening brief,37 in the event the debtor defaulted. united states existed because of the ftca. immediately follows," it is not an unyielding rule.18 judgment always determinative. as the first circuit has noted, "because the underlying contract. the mvra with the intent that it would allow prosecutors to utilize (fslic) to western federal savings and loan association (western federal). contract and not on the parties to the judgment. in any event, we do not pass on sobranes advances a number of policy arguments for support. however genesis in contracts where the united states was not an original party. subpart (b) and not simply the catch-all provision. to the fact that the nlrb was the only entity statutorily authorized to enforce see tex. civ. prac. & rem. code ann. 31.006 ("a dormant judgment may be revived in united states v. phillips, we considered whether the federal matter, the government had to use the fdcpa to collect on a judgment, holding that it did not. and "guarantee": black's law dictionary defines, in relevant part, "insure" as that no person shall `be deprived of life, liberty, or property, without due process of law.' the underlying the fdic's judgment was originally entered into by only private acquired only through the failure of a private savings and loan institution. proceeding agreed, and the trial court agreed, that `the judgment is dormant if alternative requested an accounting of assets held by hughes, his wife, and the todd & hughes construction corp.; procedure 69(a), state law governed the time limits on execution, and execution remaining in the case. rather, the district court only made an antecedent ruling thomas todd each guaranteed the note. in july 1985, thcc, western savings dormant by failing to brief meaningfully the issue and essentially conceding the whether the district court's order is a final decision. in its statement of the parallel phrasing in united states, but that is not owing under the terms of a contract appeal from the united states district court id. 3002(3). in august 1989, congress abolished the fslic and appointed the fdic subpart (a) contemplates two separate types of "amounts owing to the as this is a question of statutory interpretation, our review is de novo.8 sobranes points to no evidence, nor have we found any, that the ends the litigation on the merits and leaves nothing for the court to do but comacho v. tex. workforce comm'n, 408 f.3d 229, 234 (5th cir. 2005). there is, guaranty. 3. something given or existing as a security, such as to fulfill a future amounts originally due the united states."23 execute the judgment."6 28 u.s.c. 3001(a)(1). judgment entered against defendants is not a loan at all insured or otherwise. no. 06-10912 iv dictionary 811, 711 (7th ed. 1999). 303 f.3d 548 (5th cir. 2002). court's ruling was based on ripeness, a question of law. see, e.g., venator group specialty inc. injunctive relief and money damages to redress losses suffered by defrauded procedures in this act.22 pause on the issue.5 penalty, restitution, damages, interest . . . or other source of a judgment entered in the name of the united states is an amount review is appropriate. guaranteed by the united states. this, however, misreads the definition. the being an fdcpa debt. the limitation does not give way because the fdic came we held that the detract from our application of the fdcpa's plain meaning here.36 district court's ruling that the fdcpa is inapplicable is dispositive. in its reply 33 dukas, the fdic bought a defaulted note originally entered into by private parties, obtained scheme without limit, but rather cabined the types of obligations in the on the fdcpa to establish that the judgment is not dormant under texas law." to be clear, we address the definition of debt under both subparts (a) and (b). duty to consider it, and given the unusual procedural history of this case, we matured on june 8, 1985. in june 1985, thcc executed an "extension of real separate arguments regarding the later note and guarantee agreements, sobranes abandoned judgment is a debt under subpart (b). as sobranes explained in its objections personal loan, that transaction is between him and the bank or 30 in recommending that sobranes' motion be denied, the magistrate melanie hughes, pursuant to an agreement "partitioning community fifth circuit of execution issued in april 2003. mclaughlin v. miss. power co., 376 f.3d 344, 350 (5th cir. 2004) (quoting catlin v. federal deposit insurance company (fdic), sought to execute on a judgment the critical distinction between this case and national business contracts provided the impetus for the lawsuit; rather, the amount owing to the association, and bbc olympic agreed to an "assumption and consent see, e.g., united states v. alphagraphics franchising, inc., 973 f.2d 429, 431 (5th to recover these loan or contract obligations, it may do so in exactly the central question is whether sobranes is entitled to invoke the fdcpa. sobranes recovery pool i, llc, a delaware limited liability argument that the judgment is not dormant because of the fdcpa. the majority's opinion. nor is exclusive authority to enforce a judgment or the issue before it as "sobranes' objection to the magistrate judge's conclusion we think the dissent has the better of the argument.34 note) in favor of western savings association for $10.3 million. the note neither the parties nor the magistrate points to any cases that analyze the definition district court on its application of the state statute of limitations. id. at 514. the award, the nlrb was acting in the public interest when it sought to enforce relevant to this inquiry is the district court's conclusion of law related to cole's declaratory id. at 958-60 (walker, j., dissenting). arguably, some question of whether our review is for abuse of discretion. we have previously "the denial of a motion for further relief under 28 u.s.c. 2202 is based on a question of law, the fdcpa. we will not attempt to divine why the fdic did or did not attempt to use the id. at 320. find the position taken by the e.d.p. majority to be unsatisfactory."35 similarly, in united states ex rel. small business administration v. commercial insurer or guarantor of the loan that is, the cosigner of the loan united states court of appeals and collect a backpay award, and allowing the government to use the fdcpa parallel of his hypothetical to this case: plaintiff-appellant the "exclusive beneficiary of the judgment."29 charles r. fulbruge iii suggesting that the proper inquiry is on the because the district court did not address it. it is an elementary proposition, and iii for example: "compare the fifth amendment of the constitution, which provides direct loan or loan insured or guaranteed by the united states as well as other if the phrase were, then there would be neither a need for a two part definition which we the requests to a magistrate judge. 3 sobranes' briefs did not address the merits of the issue. during oral debt."12 recover a judgment on a debt,"20 then, in august 1988, western federal was placed into receivership, and its assets again including the notes and guarantees involved here were of the fdic in october 1992, and an abstract of judgment was filed in january 12 in june 1984, thcc executed an "all inclusive deed of trust note" (the see goodman v. harris county, 443 f.3d 464, 468 (5th cir. 2006) (listing the collateral and guarantee is "1. the assurance that a contract or legal act will be duly carried out. 2. states," and that the judgment rendered the defendants liable only to the ftc, f i l e d explained that, even though the government might pay out some of the judgment defined broadly to include amounts owing to the united states on account of a mvra, which we interpreted as independently authorizing the government to corollary": when there is a serial list followed by modifying language that is set sobranes recovery pool i, llc (sobranes), as private-party assignee of the amounts . . . due the united states." (emphasis sobranes'). see also plaintiff's response in 20 estate note and lien," renewing the note and extending the maturity date to united states as defined by the federal statute because caddo was not an instrumentality of the district court agreed with the recommended denial of relief, but on should remand on the issue. but if this be so, then this court is without original loan. government could use the fdcpa to collect restitution owing to private for the foregoing reasons, we affirm. 18 . . . .13 nor any of the other language that appears in either subpart. we cannot as the district court in substance held that sobranes is time-barred from this hypothetical covers the factual situation here a loan from a private bank; the different collection schemes in each state and "lessen[] the effect of however, in two unpublished lower court decision, courts have on similar facts ("because the district court's failure to issue a declaratory judgment turned on a question of "amount owing the united states on account of . . . fine, assessment, what statute of limitations the government enjoys under it. is not owing under the terms of a contract originally entered into by only persons itself.14 the ftc had sued the defendants who were "engaged in "proper party to invoke the benefits of the fdcpa." the court thus "adopt[ed] judgment to recoveredge, lp. recoveredge then assigned the judgment to include a detailed analysis of whether the judgment is dormant under texas law no. 06-10912 although we conclude that the statute's text is plain, we do note out."17 though a writ of execution issued in april 2003, it came too late as texas law & todd development company as a defendant and asserting additional claims 38 2 while we agree with the first circuit's discussion of e.d.p. here, we have previously declined parlance of the statute, "debts" that trigger the fdcpa. the statute "provides clerk judgment request." thus, because the only question is one of statutory interpretation, de novo hamilton v. united healthcare of la., inc., 310 f.3d 385, 391 (5th cir. 2002). "guarantee" as an "assurance that a contract or legal act will be duly carried no. 06-10912 subparts. the phrase is not a freestanding definition of what constitutes a debt. clear: "this chapter shall not apply with respect to an amount owing that is not fdcpa. fdic v. bauman, no. civ. 3:90-cv-0614-h, 2004 wl 1732933 (n.d. tex. july 30, enforce the terms of the note. the subpart (b) limitation captures this there is a "grammatical indeed, the definition contains a final, catch-all provision for "other source of federally insured institution, the note fell within the ambit of loans insured or 37 neither the acquisition of the notes by the fdic nor the fdic's obtaining a 19 documentation, and failure to make required disclosures.28 statutory interpretation, this court reviews it de novo."). we have also recognized that de novo exclusive federal enforcement are included within the grasp of the fdcpa, we defendants-appellees government insured or guaranteed the underlying loan to thcc, that this was assignee attempted to invoke the fdcpa. according to the sixth circuit, the district court 13 the ftc sought would flow to the individual employees. the court seized on congressman statutory exclusion for debts `owing under the terms of a contract originally entered into by inadequately briefs an issue is considered to have abandoned the claim."). the employer argued that the the way it proceeded in the past; it is not eligible to use the new v. e.d.p. med. computer sys., inc., 6 f.3d 951, 954 (2d cir. 1993). cutting out "originally" the full definition of insure is "1. to secure, by payment of a premium, the payment no. 06-10912 3 within the meaning of the fdcpa would not properly dispose of this appeal we add a motion requesting declaratory judgment, appointment of a receiver, or an owing the united states, and therefore is a "debt" subject to the no. 06-10912 or contract obligations. for example, if one of our constituents goes a judgment is not dispositive, as the clause focuses on the parties to the original that the judgment is not dormant under texas law." sobranes appeals. it is reviewed de novo." id.; see also united nat. ins. co. v. sst fitness corp., 309 f.3d 914, property,"4 21 101-73, 103 stat. 183. 35 5 taking the majority to task for elevating the legislative history above the plain the nation-wide sale of business franchises" under the federal trade united states": those that result from direct loans by the united states and no. 06-10912 indebtedness to the united states." as found by the [fifth] circuit, fundamentally alters the quotation's meaning. creative editing that is done with no plausible urged that the judgment is a debt within the meaning of subpart (a). however, company, as successor-in-interest to federal deposit insurance 8 it gave away nothing the judgment is dormant agreement implicated the ownership of the successor companies to thcc. no. 06-10912 a close reading of the district court's ruling, the magistrate's nor can sobranes find succor under subpart (b) of the definition. the bulk the ability of private-party assignees of the government to invoke the fdcpa or other provisions of the statute support this interpretation. the scope act will not apply to obligations which begin as purely private loan with the phrase "an amount that is owing" and the limiting clause begins with 17 delinquent debts on the massive federal budget deficit now undermining the before turning to the merits, we address three preliminary issues. ii hands of the fdic would face no limitations period under the fdcpa, and as those arguments. see cinel v. connick, 15 f.3d 1338, 1345 (5th cir. 1994) ("an appellant brief, sobranes comes about face, arguing that the issue of dormancy was never texas law applies, and it is not dormant if the fdcpa controls.'" thus, in the united states court of appeals provisions of the fdcpa. . . . as a judgment entered in the name of judgment entered in the name of the fdic is an "amount owing to the text of the fdcpa is clear and unambiguous, a "debt" is an by scire facias or by an action of debt brought not later than the second anniversary of the date corporation, as manager of fslic resolution fund in its corporate then these loans will not come under coverage of this act's new see financialinstitutionsreform, recovery, andenforcement act of1989, pub. l. no. this meant that the fdic might bear the loss if the debtor defaulted, but it does 16 as assignee or otherwise, has been held to be entitled to recover judgment on a the definition of "debt" was carefully written to make clear that the out from the definition those amounts owing to the united states that find their obtained, and we held that it could. sobranes explains, because the judgment is dormant under texas law, the specifically considered whether the judgment is dormant, concluding that it is. 34 no. 06-10912 sobranes finds its strongest support in the second circuit's decision in declaratory relief and motions for further relief, the district court "may" grant relief, therefore in its objections to the magistrate's recommendations, sobranes argued that the restitution owed under the mvra. see phillips, 303 f.3d at 550 n.3. judgment on the notes, they continue, created fdcpa debts. not invoke the fdcpa. we affirm, although on grounds different from those 7 suit against thcc, t. todd, g. todd, and hughes to recover on the note and for the edit. unsurprisingly, the second circuit properly quoted the house report. see nlrb thrift. unless it is a veterans' home loan or an fha home loan or 4 definition does not focus on whether the lending institution itself is federally 17 thus, the magistrate's decision squarely placed the issue before the district court attractive these policies are, they find no home in the plain language of the 16 defaults.16 thus, under rule 69(a), state law governs execution on the judgment. court concluded that the case law indicated that the united states was the "final decisions" of the district courts. "a final decision generally is one which magistrate's recommendation, but the government did not appeal that particular decision. or decree entered in favor of the united states in a court and arising from a civil no. 06-10912 judge walker dissented, however, situation like this. the supporting cases too numerous to cite, that this court may "affirm the sobranes has argued that because western savings association was a see tex. civ. prac. & rem. code ann. 34.001(a) ("if a writ of execution is not issued duty, lease, rent, service, sale of real or personal property, 15 similar loan in which the government is either the lender or the of dallas, 314 f.3d 730, 731-32 (5th cir. 2002) (per curiam), we considered a district court's 136 cong. rec. h13288-02, h13288 (1990) (statement of rep. brooks). defendants argue that the judgment is not an fdcpa debt. they explain that the fdic thus came into we explained that the judgment was "an amount . . . owing to the united guarantors defaulted on their obligations under the notes and guarantees. in ftc v. national business consultants, inc., the question before our 27 persuades us beyond peradventure, therefore, that congress drafted the fdic's assignee, it should have the same benefit. the district court referred id. at 955. anything but a private loan by a private institution. and, of course, the at best and spends nary a word on the limiting clause in 3002(3)(b) "but that the most natural reading of the definition is that the final clause limits all of no. 06-10912 statement of jurisdiction in its opening brief. judgment is dormant and execution may not be issued on the judgment unless it is revived."). under texas law. the district court entered judgment against defendants in denial of a preliminary injunction. explaining that normally we would apply abuse of direct loan, or loan insured or guaranteed, by the united states; or government could. our decision, however, turned not on the fdcpa, but on the see mosley v. cozby, 813 f.2d 659, 660 (5th cir. 1987). life ins. co., 414 f.3d 558, 569 (5th cir. 2005). however, we have also recognized that, when against t. todd, g. todd, and hughes, in order to recover on another promissory barnhart v. thomas, 540 u.s. 20, 26 (2003). 28 limiting our review to abuse of discretion. see united teacher assocs. ins. co. v. union labor for the northern district of texas 36 and bank through an assignment. the issue before the court was whether, as a jurisdictional noted that under both 28 u.s.c. 2201 and 2202, the statutory provisions providing for decided below, the issue of dormancy is not before this court, and this court judgment is dormant if texas law applies." the district court adopted the 11 the subpart (b) limitation is directly applicable to this case: the note the statute is specific in that it applies only to debts, as 3001(c) makes different conclusion.24 have the successor entities to thcc placed in receivership, and in the the magistrate recommended denying sobranes' motion, concluding that where the sba initially guaranteed the loan, which was between private parties). successor entities. mrs. hughes and the successor entities were not parties to collection procedures act (fdcpa).1 the notes and guarantees back to the fslic in december 1988. thcc and the fdic took possession of the note through receivership. as the holder of the note, the district court specifically limited its departure from the magistrate's seeks to collect on the loan. the house report accompanying the fdcpa is also the court did not analyze the definition of the debt, stating only in passing that "the fdcpa see cinel, 15 f.3d at 1345. independent of the note. that is, the note establishes the rights and liabilities note and guarantee agreements.3 1993. 32 former is not implicated here as the government did not make any loans. 10 opinions on point. although defendants put some stock in our decision in fdic v. shaid, 142 f.3d 320, 324 n.7 (3d cir. 2006); see also bingham, ltd. v. united states, 724 f.2d 921, 926 technology, inc., the magistrate judge, according to this court, concluded that the fdcpa was brief in support of its objections to the magistrate's recommendations at page 8 28, sobranes obligations.31 purpose other than to try to fool the court is deeply troubling and utterly unacceptable. required the writ to issue within ten years from entry of judgment to prevent it court was whether a judgment obtained by the federal trade commission (ftc) no. 06-10912 the fdcpa to collect restitution in favor of private victims.26 it may be, any construction which implies that the legislature was ignorant of the meaning of owing to the united states on account of," a phrase which appears in both source doctrine's elements). recommendation to the fdcpa analysis, leaving untouched the magistrate's to follow bongiorno when we held that the government may use the fdcpa to collect accounting. sobranes sought a declaration that assets held by hughes' wife, a debt or to a claim for an amount owing that is not a debt." the statute defines statute. while congress is free to amend the statute to effectuate these policy into possession of the note, sued to recover on it, and obtained a judgment. the no. 06-10912 off from the last item in the list by a comma, this suggests that the modification the fdic is only owed by the judgment debtor to the fdic . . . a of the assignment on january 31, 2005. during the series of assignments, a writ magistrate determined that the government was not entitled to relief under the fdcpa because the note underlying the 29 "[t]o secure . . . the payment of a sum of money in the event of a loss," and on account of a direct loan or loan insured or guaranteed by the united states as well as other and its use of precedent.33 and not to any private individuals, for the whole judgment. the federal this common sense reading is supported by the definitions of "insure" before higginbotham, smith, and owen, circuit judges. see united states v. bongiorno, 106 f.3d 1027, 1038 (1st cir. 1997) (concluding that relied on by the district court. 18 ruled that "because the original debt arose between two private parties . . . , the fdcpa's although neither party questions our jurisdiction, we have an independent october 1992 and an abstract of judgment was filed in january 1993. the only congress sought to alleviate the burden on the federal government of navigating entered against todd & hughes construction company (thcc) and j. randall revival is not available.39 the fdic's judgment. no. 06-10912 were transferred by the federal savings and loan insurance corporation business consultants the ftc was vindicating its independent statutory argument, sobranes' counsel conceded that subpart (b) was not applicable, but duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if the magistrate judge's recommendation to deny sobranes' motion . . . on the to private individuals, nothing in the fdcpa required that the government be guarantees were between private parties; that under federal rule of civil olympic assumed without recourse the note and obligations of thcc. the 14 the bank fails and is taken over by the federal government; and the government jurisdiction, sobranes writes, "the parties in the underlying post-judgment jurisdiction because the district court never reached the dispositive issue opinion is rich with legislative history and purpose, its textual analysis is brief brooks' statement that the fdcpa was not meant to reach "purely private" relationship and applies it where the united states was not a party to the to invoke fdcpa and that it therefore cannot rely on the fdcpa to establish that the limiting clause in 3002(3)(b) strongly indicates that who can enforce other than the united states." looking past the text saps persuasive force from defined by reference to the language following the phrase as indicated by the originally entered into by only persons other than the united states the state time-bar. sobranes countered that execution of the judgment in the sobranes points to no other provision of federal law like the mvra that was as the parties conceded that it is, a concession sobranes again makes in its economic well-being of the nation."11 years of the entry of judgment and there were no grounds for revival. of the parties, what is owed and to whom. a subsequent lawsuit and judgment 5 interpret a statute in such a way as to render significant portions of it a nullity.15 of subpart (b) is written in broad language, capturing numerous forms of debt; recommendation and report, and the parties' filings persuade us that the district transferred to sunbelt savings, fsb, by the fslic. sunbelt savings transferred the parallel language "but that is not owing." the final clause, therefore, pulls altered this quotation to read "defined broadly to include amounts owing to the united states contains important limiting language: "but that is not owing under the terms of 6 the district court entered judgment in favor july 31, 1985. when thcc renewed the note, hughes, gordon todd, and interest, tax, bail bond forfeiture, reimbursement, recovery of a cost franchisees. the ftc wanted to use the fdcpa to collect on the judgment it indebtedness to the united states." however, the final clause of the subpart 6 f.3d at 954. id. parties. thus, even though a judgment obtained by the government can fall no. 06-10912 could apply to this action." nor do we know, for example whether the sba guaranteed the


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