when it was reached, or the HUD official who authorized it. I find it difficult to believe that Gross Partners would not have embodied the agreement, if one existed, in written form in order to protect itself from actions of this type. Additionally, plaintiff has opposed this contention by submitting affidavits of eight employees and officers at HUD familiar with this case over the past several years. All of them deny that HUD personnel agreed not to foreclose. HUD also points to several letters to Gross Partners indicating HUD's intent to foreclose. In fact, several letters attached to Gross Partners' memorandum make reference to HUD's warnings of impending foreclosure. See Exhibits E, I, and K.
FRCP 56 requires that "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits . . . must set forth specific facts showing that there is a genuine issue for trial." FRCP 56(e). The Gross affidavit does little more than state in conclusory terms that there was an understanding, without support of any specifics or documentation. This alone would lead me to conclude that summary judgment is appropriate. SEC v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980); U.S. v. Golden Acres, 520 F. Supp. 1073, 1079-1080 (D. Del. 1981) (conclusory statements in affidavit alleging workout agreement insufficient to raise an issue of fact concerning waiver or estoppel).
However, there are more compelling reasons to reject defendants' conclusory assertion of an estoppel defense. It has been traditionally held that the government cannot in any way be bound by the unauthorized acts of its employees. Federal Crop. Insurance Corp. v. Merrill, 332 U.S. 380, 384, 68 S. Ct. 1, 3, 92 L. Ed. 10 (1947). Here, defendants have not provided this court with the identity of the HUD (officials) who allegedly entered into the agreement with Gross Partners, while HUD has brought forward affidavits from a number of high ranking HUD officials who have been involved with the case and who would have this authority. Absent an indication of who authorized the agreement, I have no basis to infer that the agreement was properly reached.
In addition, several circuits have ruled that estoppel is not a valid defense to a foreclosure action brought by the government on facts similar to those presented by this case. That is, statements by HUD officials that HUD will take no foreclosure action pending arrangement of alternate workout agreements do not work an estoppel against the exercise of the right to foreclosure as clearly defined in the statute and reserved in the mortgage. United States v. Victory Highway Village, Inc., 662 F.2d 488, 495-497 (8th Cir. 1981); United States v. Sylacauga Properties, Inc., 323 F.2d 487 (5th Cir. 1963); United States v. Woodland Terrace, 293 F.2d 505, 509 (4th Cir. 1961), cert. denied, 368 U.S. 940, 7 L. Ed. 2d 338, 82 S. Ct. 381 (1961). See also Kent Farm Co. v. Hills, 417 F. Supp. 297, 302-303 (D. D.C. 1976).
Because the facts as presented by the parties, and the law as uniformly applied in other circuits all lead to the conclusion that estoppel is not a valid defense here, I reject defendants' estoppel theory.
Gross Partners' third defense is that HUD created an impossibility of performance of Gross Partners' debt obligations by entering into the agreement not to foreclose discussed previously. Because I have found there is no showing that an agreement existed, this defense is unavailing on the motion for summary judgment.
Defendants' fourth and fifth defenses allege violations of unspecified government regulations. These defenses apparently are tied into Gross Partners' allegations that the government acted arbitrarily in seeking foreclosure here. Having rejected that argument above, I find that defendants' fourth and fifth defenses are no bar to summary judgment.
Finally, Gross Partners allege that the foreclosure actions will result in a deprivation of property without due process of law. In a foreclosure context, due process requires that the owners and mortgagors be given notice and an opportunity to be heard before the action proceeds. Hoffman v. HUD, 519 F.2d 1160, 1167 (5th Cir. 1975). Gross Partners again have advanced no factual allegation to support this defense. To the contrary, the record reflects more than adequate procedural safeguards.
Accordingly, the United States's motions for summary judgment will be granted.
AND NOW, this 24th day of January, 1984, it is hereby Ordered as follows:
(1) Plaintiff's motions for summary judgment are GRANTED;
(2) Judgment in mortgage foreclosure is hereby entered in each action in favor of plaintiff and against defendants. Plaintiff shall submit appropriate forms of orders implementing this judgment forthwith.
AND IT IS SO ORDERED.