     Case: 12-20692      Document: 00512424574         Page: 1    Date Filed: 10/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-20692
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 30, 2013
RBC REAL ESTATE FINANCE, INCORPORATED,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff – Appellee
v.

PARTNERS LAND DEVELOPMENT, LIMITED; MATT L. SEIFFERT,

                                                 Defendants – Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2507


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellee, RBC Real Estate Finance, Incorporated (“RBC”),
sued       Defendants–Appellants,       Partners     Land      Development,            Limited
(“Partners”) and Matt L. Seiffert, on two promissory notes and their
accompanying guaranties. The district court granted summary judgment for
RBC. Partners and Seiffert appeal, arguing that the district court erroneously




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-20692      Document: 00512424574    Page: 2    Date Filed: 10/30/2013



                                  No. 12-20692
considered a RBC account manager’s affidavit as evidence of RBC’s damages.
We AFFIRM.
                          FACTUAL BACKGROUND
     On May 26, 2005, Partners and Lake Houston Walden, LP (“Lake
Houston”) 1 executed a promissory note payable to RBC Centura Bank 2 for
$1,354,000.00 (the “Atasca Oaks Note”). Partners secured the Atasca Oaks
Note with property located in Atascocita, Texas, and Seiffert guaranteed the
borrowers’ obligations. On May 12, 2007, Partners and Lake Houston executed
another promissory note payable to RBC Centura Bank for $2,350,000.00 (the
“Lake Houston Note”). The Lake Houston Note was also secured by property
located in Texas, and Seiffert again guaranteed payment. RBC was assigned
the Atasca Oaks Note, the Lake Houston Note, and their related loan
documents. Partners and Lake Walden defaulted on both notes, and RBC
foreclosed on the properties. RBC sold the property securing the Atasca Oaks
Note on July 7, 2009, and sold the property securing the Lake Houston Note
on December 1, 2009.
     RBC filed suit, alleging that the foreclosure sales did not recover the
principal due under the Notes and Guarantees, and that Partners and Seiffert
(“Defendants”) still owed $632,872.72. RBC moved for summary judgment,
which Partners and Seiffert opposed. Partners and Seiffert objected to RBC
account manager Daniel Reid’s affidavit, which RBC submitted as summary
judgment evidence. They claimed Reid did not provide foundation for his
statements concerning the amount owed on the Notes, and did not explain how
he computed interest. Without Reid’s affidavit, Defendants argued, RBC did




     1   Lake Houston is not a party to this lawsuit.
     2   RBC Centura Bank is now known as RBC Bank (USA).
                                         2
     Case: 12-20692   Document: 00512424574       Page: 3   Date Filed: 10/30/2013



                                 No. 12-20692
not present evidence of its damages and was not entitled to summary
judgment.
      The district court overruled Defendants’ objection to the Reid affidavit.
The court reasoned: “Because his affidavit was made on personal knowledge
by a person competent to testify on the matters stated, it is acceptable
summary judgment evidence.” The district court then granted RBC’s motion
for summary judgment.
                          STANDARD OF REVIEW
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th
Cir. 2013). Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “We review the district court’s
evidentiary rulings for abuse of discretion.” King v. Ill. Cent. R.R., 337 F.3d
550, 553 (5th Cir. 2003); see also St. Romain v. Indus. Fabrication & Repair
Serv., Inc., 203 F.3d 376, 381 (5th Cir. 2000).
                                DISCUSSION
      Partners and Seiffert make two arguments attacking the district court’s
grant of summary judgment. First, they argue that the district court erred
when it considered Reid’s affidavit. Second, they argue that Reid’s affidavit is
insufficient evidence of RBC’s damages. Both arguments fail.
A.    Evidentiary Ruling
      RBC attached Reid’s affidavit to its motion for summary judgment. As
outlined in his affidavit, Reid is an RBC “account manager” and was
“authorized to make th[e] affidavit on behalf of RBC.” As part of his duties for
RBC, Reid “monitor[ed] and collect[ed]” the “promissory notes at issue in this
matter.” In his affidavit, Reid recounted the principal amounts and interest
due on both Notes and the amount of money generated from the foreclosure
                                        3
     Case: 12-20692    Document: 00512424574     Page: 4   Date Filed: 10/30/2013



                                  No. 12-20692
sales. He concluded: “After applying the foreclosure bid prices to the
outstanding debt due under the Notes, there remains a substantial deficiency,”
and that as of the date of RBC’s motion for summary judgment, Appellants’
total debt was $314,133.51 on the Atasca Oaks note and $372,045.90 on the
Lake Houston Note.
      Appellants’ object to Reid’s affidavit because it is “conclusory” and
because Reid provides no foundation for how he calculated the principal
amounts due on the Notes. As the district court noted, Reid’s statements are
based on his personal knowledge. See FED. R. CIV. P. 56(c)(4) (“An affidavit or
declaration . . . must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated.”). As an account manager at RBC Reid is
responsible for monitoring and collecting the Atasca Oaks and Lake Houston
Notes. Therefore, Reid is competent to testify on the amounts due on the Notes,
and his affidavit satisfies the requirements of Rule 56(c)(4). See, e.g., United
States v. Lawrence, 276 F.3d 193, 196–97 (5th Cir. 2001) (holding that a loan
analyst’s affidavit based on personal knowledge of certain loan records is
admissible summary judgment evidence). Accordingly, the district court did
not abuse its discretion when it held that Reid’s affidavit was acceptable
summary judgment evidence.
B.    Summary Judgment
      Reid’s affidavit is also sufficient to prove RBC’s damages under Texas
law. “A lender need not file detailed proof reflecting the calculations reflecting
the balance due on a note; an affidavit by a bank employee which sets forth the
total balance due on a note is sufficient to sustain an award of summary
judgment.” Hudspeth v. Investor Collection Servs. Ltd. P’ship, 985 S.W.2d 477,
479 (Tex. App. 1998); see also Martin v. First Republic Bank, Fort Worth, N.S.,
799 S.W.2d 482, 485 (Tex. App. 1990); 8920 Corp. v. Alief Alamo Bank, 722
                                        4
    Case: 12-20692     Document: 00512424574       Page: 5   Date Filed: 10/30/2013



                                   No. 12-20692
S.W.2d 718, 720 (Tex. App. 1986) (“The affidavit was made on Hollingsworth’s
personal knowledge; the notes and guaranty agreement were identified; and
the principal balances and interest due were recited. Such statements are
clearly not conclusory.”). Reid’s affidavit identifies the principal, interest, fees,
the credit applicable from the foreclosure sales, and the remaining deficiencies
on the Notes. Accordingly, Reid’s affidavit is sufficient to entitle RBC to
summary judgment. See Hudspeth, 985 S.W.2d at 479 (“Courts have upheld
summary judgments based on affidavits that simply identified a promissory
note and a lump sum figure as the principal balance and interest due and
owing by the nonmovant on that note.”).
      Appellants rely on Guerra v. M.H. Equities, Ltd., which held that
summary judgment was inappropriate when it was “unclear how M.H. Equities
calculated [the amount due on the note.]” No. 02–11–00261–CV, 2012 WL
2135596, at *2 (Tex. App. Jun 14, 2012). But the Court in Guerra found that
“the summary judgment evidence itself raise[d] a fact issue.” Id. The lenders
in Guerra submitted a notice of acceleration showing the balance of the note to
be $15,147.38, but an affidavit alleging that the amount owed was $20,644.60.
Id. at *1. The court found an issue of fact because “[n]owhere in the summary
judgment evidence is the additional $5,000 accounted for.” Id. at *2. Guerra is
inapplicable because there are no inconsistencies in RBC’s summary judgment
evidence.
      Further, Appellants did not provide any controverting summary
judgment evidence to the district court. Instead, on appeal, they criticize Reid’s
affidavit because he does not explain “why the foreclosure sale of the Atasca
Oaks note generated $320,000 instead of the strike off amount, and why the
foreclosure sale of the Lake Houston Note generated $1,759,895.99 instead of
the strike off amount.” But Defendants are required to plead offset as an
affirmative defense. See Cabot Capital Corp. v. USDR, Inc., 346 S.W.3d 634,
                                         5
    Case: 12-20692    Document: 00512424574    Page: 6   Date Filed: 10/30/2013



                                No. 12-20692
639 (Tex. App. 2009) (“The burden of proof of the fair market value was on
Appellees since the offset under Texas Property Code § 51.003 is an affirmative
defense.”). Appellants did not plead offset as an affirmative defense in their
answer. Nor did they provide any evidence that the properties were sold at
foreclosure for less than fair market value. The district court correctly held,
therefore, that there were no genuine disputes as to any material fact and that
RBC was entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
                               CONCLUSION
      Accordingly, we AFFIRM the district court’s grant of summary
judgment.




                                      6
