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Rabo Agrifinance Inc. v. Terra XXI Ltd

Where a surety pays only part of a single debt, he cannot receive rights of subrogation. The surety must discharge the entire underlying obligation before achieving subrogation, otherwise the surety would compete with the creditor for recovery, potentially diminishing the creditor's recovery. 5th U.S. Circuit Court of Appeals, No. 08-10143, 09-22-2009

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Published opinion

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

This is at least the sixth case, the fourth before the Fifth Circuit, arising out of a series of loans made by Appellee Rabo Agrifinance, Inc. to a collection of partnerships and corporations (“the Veigel entities”).*fn2 Following defaults on these loans, Appellees sought to foreclose on their security interests in the collateral. The district court allowed the foreclosure, and the property was sold at auction. The Veigel entities appeal, arguing: (1) the statute of limitations barred collection of the underlying debt and thus, under law, barred the foreclosure, (2) even if the foreclosure was appropriate, one of the entities, Terra Partners, should be subrogated to a superior lien position in some of the equipment, and (3) the district court erred by awarding attorneys’ fees. We reject the appellants’ challenges to collection of the debt and affirm the award of attorneys’ fees.

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