United States v. McCord

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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

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No. 03-20138
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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.

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