UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL B. BALK, as an individual and as a partner of BALK FARMS,

Defendant-Appellant,

and

KAREN D. BALK, a/k/a KAREN BARKER, as an individual and as a partner of BALK FARMS; BERNARD S. BALK, as an individual and partner of BALK FARMS; JUANITA L. BALK, as an individual and as a partner of BALK FARMS; IDA CAMPBELL; JOE L. JACKSON, d/b/a JOE L. JACKSON & ASSOCIATES; DAVID WEBER; WOODWARD COUNTY TREASURER; WOODWARD COUNTY BOARD OF COUNTY COMMISSIONERS; ROBERT H. RICHARDS; LOUISE A. SCHUMAKER; THE ESTATE AND SUCCESSORS OF IDA C. RICHARDS, formerly IDA C. CAMPBELL; OKLAHOMA TAX COMMISSION, ex rel State of Oklahoma,

Defendants.

No. 02-6347

(Western District of Oklahoma)

(D.C. No. CIV-98-1024-R)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Michael B. Balk, acting pro se,1 appeals the district court's denial of his motion under Fed. R. Civ. P. 60(b)(4) for relief from final judgment. Exercising jurisdiction under 28 U.S.C. § 1291 (2002), we affirm.

On February 2, 1982, Mr. Balk and several partners signed and delivered two promissory notes to a federal lender, the Farm Service Agency, formerly known as the Farmer's Home Administration. The notes were secured by a second mortgage on certain real properties located in Woodward County, Oklahoma. There is no dispute that Mr. Balk and his partners defaulted on the notes.

On July 27, 1998, the United States, asserting jurisdiction under 28 U.S.C. § 1345,2 filed a complaint to foreclose its second mortgage and collect outstanding amounts due. Mr. Balk and two of his partners retained counsel and answered the complaint. On August 24, 1999, the United States filed a motion for summary judgment under Fed. R. Civ. P. 56. Mr. Balk did not respond to the motion. By order dated January 25, 2000, the district court granted summary judgment to the United States, and on February 11, 2000, judgment was entered.

On October 9, 2002, more than two and a half years later, Mr. Balk filed a pro se3 motion under Fed. R. Civ. P. 60(b)(4) for relief from the summary judgment on the grounds it was void.4 The district court correctly construed Mr. Balk's Rule 60(b)(4) motion to be premised upon three assertions: 1) the court lacked subject matter jurisdiction; 2) there was no justiciable controversy; and 3) the court lacked sufficient evidence to grant summary judgment. The district court found no merit in any of these arguments and denied the motion on October 11, 2002.5

"We review de novo the district court's ruling on a Rule 60(b)(4) motion." United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002). "A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process of law." Id. (quotation and citation admitted).6 First, in his answer to the complaint, Mr. Balk admitted subject matter jurisdiction under 28 U.S.C. § 1345, and the record clearly supports this statutory grant of jurisdiction. Second, he offers no cogent authority to support his constitutional argument that the case presents no justiciable controversy. In any event, the argument is frivolous. It is beyond peradventure that a suit to foreclose a mortgage granted to a federal lender constitutes a case or controversy under Article III, Section 2 of the United States Constitution. Mr. Balk's final argument, that the judgment lacks evidentiary support, is not cognizable under Rule 60(b)(4). He had the opportunity to make this argument by opposing the United States' motion for summary judgment; he chose not to do so. In any event, we have carefully reviewed the record, and it contains an abundance of evidence to support the district court's decision.

Accordingly, we AFFIRM the order and judgment of the district court. This is a frivolous appeal. Appellant shall, within ten days of the filing date of this Order and Judgment, show cause in writing why he ought not be required to pay double costs to the appellee. Fed. R. App. P. 38.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge