United States v. McCord

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003

Charles R. Fulbruge III
Clerk
No. 03-20138
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LORRAINE MCCORD,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3957
--------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Lorraine McCord (“McCord”) appeals the district court’s

grant of summary judgment in favor of the Government in its suit

to collect on a promissory note. McCord argues for the first

time on appeal that the Government’s delay in bringing its

complaint was unreasonable, that the Government’s Certificate of

Indebtedness was not based upon the personal knowledge of the

affiant, and that the Government’s evidence did not establish who

owns the note. This court will not address these arguments

*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
 No. 03-20138
-2-

raised for the first time on appeal. See Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

McCord asserts that she presented sufficient evidence to

show that there were genuine issues of material fact as to the

date of default and the amount of the debt. “To recover on a

promissory note, the government must show (1) the defendant

signed it, (2) the government is the present owner or holder, and

(3) the note is in default.” United States v. Lawrence, 276 F.3d

193, 197 (5th Cir. 2001). Because the Government filed a

properly supported motion for summary judgment, the burden

shifted to McCord to provide competent summary judgment evidence

setting forth specific facts that demonstrate a genuine issue for

trial. See FED. R. CIV. P. 56(e). McCord did not dispute that

she defaulted on the note, and the exact date of default is not a

material fact. See Lawrence, 276 F.3d at 197. The evidence

McCord presented to demonstrate a genuine issue as to the amount

owed was not sufficient to meet her burden under FED. R. CIV. P.

56(e).

AFFIRMED. The motion for appointment of counsel is DENIED.