UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-10578
SMS FINANCIAL II LLC, and Arizona limited
liability company,
Plaintiff-Counter Defendant-Appellee,
VERSUS
YUKIHIRO NAKAMURA; TAMMY HARRIS NAKAMURA,
Defendants-Counter Claimants-Appellants.
Appeal from the United States District Court
For the Northern District of Texas
(3:95-CV-954-G)
October 22, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
PER CURIUM:
Appellants Yukihiro Nakamura and Tammy Harris Nakamura seek
relief from a decision granting SMS Financial II, L.L.C. (“SMS”)
the right to collect on a promissory note. The thrust of their
argument is that SMS should not be entitled to enforcement because
it does not qualify as a holder in due course in two respects: (1)
*
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this opinion should not be published and is not precedent except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.
SMS cannot produce the original note and (2) the note was
improperly endorsed.
The trial court rejected these contentions reasoning that (1)
the summary judgment evidence of SMS satisfactorily establishes its
ownership of the note, notwithstanding loss of the original, and
(2) despite improper endorsement and lack of holder in due course
status, SMS, as owner of the note, can enforce it subject to any
equitable defenses, and the Nakamuras have asserted no such
defenses.
Having considered the briefs of the parties and the relevant
portions of the record, this Court concludes, essentially for the
reasons stated in the district court’s memorandum opinion, that the
judgment below is correct. Accordingly, the judgment of the
district court is
AFFIRMED