UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FIRST BANK OF MISSOURI, formerly
known as First Bank of Gladstone,
Plaintiff-Appellee,

v.                                                               No. 96-1024

BAC O'FLINT LIMITED PARTNERSHIP, a
Maryland Limited Partnership,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-95-2090-DKC)

Submitted: December 12, 1996

Decided: December 23, 1996

Before MURNAGHAN, NIEMEYER, and LUTTIG,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joel I. Sher, Sandra A. Manocchio, SHAPIRO & OLANDER, Balti-
more, Maryland, for Appellant. Harry C. Storm, Eric J. Posner,
ABRAMS, WEST & STORM, P.C., Bethesda, Maryland, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Bac O' Flint Limited Partnership (Bac O' Flint) appeals from the
district court's order granting summary judgment to the First Bank of
Missouri (Bank). For the reasons that follow, we affirm.

The following facts are undisputed. Bac O' Flint executed to the
Bank a promissory note (note) in the amount of $5.75 million secured
by a deed of trust, security agreement, and assignment of rents and
financing statement (deed of trust) on real property located in Mary-
land.* After Bac O' Flint defaulted on the note, the Bank instituted
a foreclosure action against the property. Bac O' Flint in turn volun-
tarily filed for bankruptcy protection under Chapter 11 of the Bank-
ruptcy Code. The parties thereafter filed a joint stipulation and order
(joint order), approved by the bankruptcy court, to lift the automatic
stay to permit the Bank to foreclose upon the deed of trust on the
property. The joint order also stipulated that the Bank would not fore-
close on the property if Bac O' Flint delivered to the Bank an exe-
cuted contract for the sale of the property for a price sufficient to net
the Bank $2.85 million. Specifically, the joint order read, "[u]pon
receipt of $2.85 million from settlement of the Contract, the Bank will
execute a deed of partial release to release its lien as to the Property,
but not as to any other property described in said Deed of Trust." Bac
O' Flint did deliver a contract conforming with the joint order and
thereafter dismissed its bankruptcy proceedings. The Bank then
obtained summary judgment in the district court on its action to
recover the remaining amount due on the note. This appeal followed.

Bac O' Flint alleges on appeal that the Bank agreed to forgo the
_________________________________________________________________
*The note was originally held by Metro State North Bank for $5 mil-
lion but was later modified to $5.75 million and assigned to the First
Bank of Missouri.

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remainder of the debt once it received the proceeds of the $2.85 mil-
lion sale of the property, e.g. the $2.85 million payment represented
an accord and satisfaction of the note. As evidence of this agreement,
Bac O' Flint provided the district court with an affidavit by its general
partner, Harvey Blonder, who averred that he had an oral agreement
with an unnamed person at the Bank to this effect. The district court
warned Bac O' Flint in a telephonic conference that Mr. Blonder's
bare assertion, in an affidavit, that the $2.85 million dollar payment
would settle the entire debt was insufficient to establish a material
factual dispute as to the debt. Nonetheless, in the later hearing on the
summary judgment motion, Bac O' Flint still failed to even proffer
the name of the person with whom Mr. Blonder had allegedly made
such an agreement, notwithstanding the fact that the Bac O' Flint
attorney admitted that discovery efforts had not been impeded by the
Bank.

We find that the district court properly granted the Bank summary
judgment because viewing the evidence in the light most favorable to
the nonmoving party there was no genuine issue of material fact in
dispute regarding the debt, Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986), and because Bac O' Flint
failed to show the existence of its affirmative defense. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (the party who bears the burden
of proof on a particular claim must factually support each element);
Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) ("[a]
mere scintilla of evidence is not enough to create a fact issue"). We
also find that the district court did not abuse its discretion by denying
Bac O' Flint a third chance to identify the person who allegedly
agreed to an oral accord and satisfaction of the entire debt. See
Hughes v. Bledsoe, 48 F.3d 1376, 1382 (4th Cir.) (citing Cray Com-
munications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 395-96
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3641-42
(U.S. Feb. 27, 1995) (No. 94-1184)), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3221, 3245 (U.S. Oct. 2, 1995) (No. 95-215). We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and further argu-
ment would not aid the decisional process.

AFFIRMED

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