424 F2d 1067 United States v. D W Dooley S

424 F.2d 1067

UNITED STATES of America, Plaintiff-Appellant,
D. W. DOOLEY, James S. Welch and Chelsea Title & Guaranty
Co., a corporation doing business in Florida,

No. 28204.

United States Court of Appeals, Fifth Circuit.

April 1, 1970.

Edward F. Boardman, U.S. Atty., Tampa, Fla., Alan S. Rosenthal, Leonard Schaitman, Robert E. Kopp, Attys., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

William B. Mesmer, Orlando, Fla., for Dooley & Welch.

Howard P. Rives, Clearwater, Fla., for appellee Chelsea Title & Guaranty Co.

Before PHILLIPS,1 BELL and SIMPSON, Circuit Judges.


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The district court granted summary judgment against the United States, plaintiff below, in its suit to recover from closing agents (a firm of attorneys as to 8 transactions and a title company as to 21 transactions) for the loss occasioned by the insolvency of the mortgagee in transactions for resale of homes previously foreclosed upon or repossessed by the Federal Housing Administration as insuror of mortgages on such properties, when the closing agents had recorded deeds to the properties prior to receiving the purchase money from the defaulting mortgagee.


On oral argument, appellant's counsel stated that basically there was no dispute as to the facts and that the government had therefore filed no counter-affidavits. We construe this as a concession that the facts were not in dispute so that the district court could properly consider entry of summary judgment under Rule 56, F.R.Civ.P.


We conclude that the appellant has failed to demonstrate, below or here, that any breach of their contractual responsibilities was committed by the closing agents. Hence the summary judgment in their favor was proper.




Honorable Orie L. Phillips, United States Circuit Judge, Tenth Circuit, sitting by designation