     Case: 12-30676       Document: 00512126975         Page: 1     Date Filed: 01/28/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 28, 2013

                                     No. 12-30676                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

HENRY EDWARD DAVISON; ERNESTINE BRADLEY DAVISON,

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:11-CV-817


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       In this case, Appellants Henry E. Davison and Ernestine B. Davison
appeal the district court’s denial of the Davisons’ motion under Rule 60(b) of the
Federal Rules of Civil Procedure seeking relief from a judgment in rem in favor
of the United States. We find that the district court did not abuse its discretion
in denying the motion and we therefore affirm the district court’s judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                     No. 12-30676

                FACTUAL AND PROCEDURAL BACKGROUND
       In 1980 and 1981, the Davisons obtained two loans from the Farmers
Home Administration (“FmHA”).              The Davisons executed and delivered
promissory notes for the loans and secured payment of the notes by executing
mortgages covering two tracts of the Davisons’ farmland located in Richland
Parish, Louisiana. In June 2011, after the Davisons defaulted on the loans, the
United States filed a complaint in the district court seeking a judgment in rem
for the amounts due under the promissory notes. In their answer, the Davisons
alleged that payments satisfying their debt had been made, but not credited by
the United States.
       On September 21, 2011, the United States filed a motion for summary
judgment for the full amount of its claim. The Davisons filed a cross-motion for
summary judgment asserting that “the claim alleged no longer exist[s] because
it has been paid,” R. 87, and that a portion of that repayment had been
“misapplied” by the FmHA to a “nonexistent” loan. R. 90.1 The district court
granted summary judgment in favor of the United States and, on December 27,
2011, ordered a judgment in rem against the Davisons.
       The Davisons filed a motion for a new trial on December 27, 2011 alleging,
among other matters, that the district court erred in granting summary
judgment since the Davisons had “already satisfied the notes.” R. 227. The
district court denied the motion, and the Davisons did not appeal the district
court’s denial. Instead, on May 4, 2012, the Davisons filed a Rule 60(b) motion
for relief from the district court’s December 27, 2011 judgment in rem, alleging
that the judgment had already been satisfied and had resulted from fraud
perpetrated by the United States. Specifically, the Davisons alleged that an


      1
         The district court struck the Davisons’ motion for summary judgment and their
memorandum in support of the motion from the record for failure to include a certificate of
service.

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                                       No. 12-30676

FmHA official conspired with officials at First Republic Bank of Rayville,
Louisiana to divert loan payments made by the Davisons to a “dummy” account
at First Republic Bank. R. 233. According to the Davisons, “[h]ad it not been for
the fraud of the Plaintiff the debt would not remain due.” R. 234. The district
court denied the Davisons’ motion on May 23, 2012 and this timely appeal
followed.
                               STANDARD OF REVIEW
       We review a district court’s denial of a Rule 60(b) motion only for abuse of
discretion. Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 770
(5th Cir. 1995). Under this deferential standard of review, “[i]t is not enough
that the granting of relief might have been permissible, or even
warranted—denial must have been so unwarranted as to constitute an abuse of
discretion.” Northshore Dev., Inc. v. Lee, 835 F.2d 580, 582 (5th Cir. 1988).
                                        ANALYSIS
       Among other grounds for relief, Rule 60(b) provides that “the court may
relieve a party or its legal representative from a final judgment, order, or
proceeding” because of “fraud . . . by an opposing party,” FED. R. CIV. P. 60(b)(3),
or because “the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable,” FED. R. CIV. P. 60(b)(5). The Davisons
assert on appeal, as they did in their original 60(b) motion, that they are entitled
to relief from the district court’s December 27, 2011 judgment in rem because 1)
the United States engaged in a fraudulent scheme to “convert” the Davisons’
payments, 2) the judgment was satisfied by payments that the United States
failed to credit, and 3) it is no longer equitable to enforce the judgment. Br. of
Defs.-Appellants 8–9.2

       2
        The Davisons also assert that the district court erred by failing to hold a hearing to
consider their Rule 60(b) motion. Because the Davisons cite no authority in support of this

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                                    No. 12-30676

      It is well established that a party “may not use a Rule 60(b) motion as an
occasion to relitigate its case.” Gen. Universal Sys. v. Lee, 379 F.3d 131, 157 (5th
Cir. 2004); see also Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 263
n.7 (1978) (“[A]n appeal from denial of Rule 60(b) relief does not bring up the
underlying judgment for review.”); Addington v. Farmer’s Elevator Mut. Ins. Co.,
650 F.2d 663, 668 (5th Cir. 1981) (holding that Rule 60(b) motion fails because
plaintiff “alleged no facts indicating that the issues raised were not open to
litigation in the former action or that he was denied a fair opportunity to make
his claim or defense in that action”); 11 WRIGHT, MILLER, & KANE, FEDERAL
PRACTICE AND PROCEDURE § 2860, at 416 (3d ed. 2012) (“[A Rule 60(b)(3)] motion
will be denied if it is merely an attempt to relitigate the case . . . .”); 11 WRIGHT,
MILLER, & KANE, supra, § 2863, at 459 (“[Rule 60(b)(5)] does not allow
relitigation of issues that have been resolved by the judgment.”). The Davisons’
Rule 60(b) motion focuses on the United States’ alleged failure to credit
payments made by the Davisons, either through fraud or mistake, but this issue
was thoroughly litigated before the district court. Indeed, some variation of the
Davisons’ allegations in their Rule 60(b) motion can be found in their answer to
the original complaint, their motion for summary judgment, and their motion for
a new trial.
                                   CONCLUSION
      Accordingly, because the Davisons’ Rule 60(b) motion is an attempt to
relitigate the underlying judgment, we AFFIRM the district court’s denial of the
motion.
                                                                        AFFIRMED.




argument, and because we find none, the argument fails.

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