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July 31, 1992



The opinion of the court was delivered by: TIMOTHY K. LEWIS

LEWIS, District J.

 The Federal Deposit Insurance Corporation (the "FDIC") has filed a motion for summary judgment asserting that there are no genuinely disputed material facts preventing a dispositive decision by this court on the existing record, and that it is entitled to judgment in its favor as a matter of law.

 Edythe Sanders ("Sanders") had previously filed a motion to dismiss, which she now asks the court to treat as a cross-motion for summary judgment. Sanders asserts that the FDIC's claim is barred by the applicable statute of limitations. Further, Sanders argues that no genuine disputes concerning material facts exist that would prevent judgment in her favor.

 For the reasons discussed below, this court will deny Sanders' cross-motion for summary judgment and will grant the FDIC's motion for summary judgment.


 The FDIC filed Civil Action No. 89-1623 on August 3, 1989, seeking declaratory relief against Sanders, Ken-Penn Amusements, Inc., Nova Expositions, Inc. and Citizens Bank of Elizabethton, Tennessee. *fn1"

 Some background is necessary to understand the FDIC's claims.

 Ken-Penn Amusements, Inc. and Nova Expositions, Inc. are corporations which are owned or controlled by various members of the Sanders family, including Ronald D. Sanders (Edythe Sanders' husband) and Ralph and Olga Sanders (Edythe Sanders' in-laws). Prior to the sheriff's sale, there is no dispute that Ken-Penn owned the rides and leased them to Nova. (Deposition of Ralph Sanders, p. 55).

 On March 25, 1988, Sanders purchased the rides at a sheriff's sale for one dollar. (Exhibit G to Sanders' cross-motion for summary judgment.)

 Three days later, the FDIC obtained a judgment in excess of $ 300,000 against Ken-Penn in the Western District of Tennessee. (Exhibit B to FDIC's motion for summary judgment.) On August 28, 1988, the U.S. Marshal for the Southern District of West Virginia seized the rides in partial satisfaction of the FDIC's judgment against Ken-Penn. (Exhibit C to FDIC's motion.) At the time of the seizure, the rides were being operated in West Virginia by Nova Expositions, Inc. (E. Sanders Deposition, p. 17.)

 Sanders asserts that at the time of the seizure she, not Ken-Penn, owned the rides. Sanders traces her alleged ownership to the sheriff's sale. Sanders argues that the sale was valid because she had confessed judgment against Ken-Penn in March of 1982, but had chosen not to execute on this judgment until the sheriff's sale six years later. Sanders claims that this confessed judgment was based upon a promissory note from Ken-Penn to Sanders dated January 10, 1980, in the amount of $ 300,000. (E. Sanders Deposition, pp. 95-102.) The FDIC counters that neither this promissory note nor any other reliable indication of Ken-Penn's indebtedness to Sanders for this amount exists in the extensive record before this court, and therefore, the 1982 confessed judgment and the 1988 sheriff's sale are both invalid as sham transactions intended to protect Ken-Penn's assets, the rides, from the legitimate claims of creditors such as the FDIC.


 I. Standard of Review

 Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

 When deciding a motion for summary judgment, it is not the court's function to weigh and determine the truth of the matter, but rather simply to determine whether there is a genuine issue of fact for trial. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

 The moving party has the burden of identifying those portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must go beyond the pleadings and, by affidavits, depositions, answers to interrogatories and admissions on file, designate facts showing that there is a genuine issue for trial. Id. at 324.

 The court may disregard an assertion made in an affidavit which is contradictory to earlier deposition testimony when determining whether a genuine issue of material fact exists. Hackman v. Valley Fair and Local 575, International Brotherhood of Teamsters, slip op. at 3 (3d Cir. May 3, 1991). Affidavits which are merely conclusory and lacking in specific facts may be ...

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