308 Holding Co., LLC v. Equity Trust Co.

160 So. 3d 587, 14 La.App. 3 Cir. 903, 2015 La. App. LEXIS 515, 2015 WL 1035925
CourtLouisiana Court of Appeal
DecidedMarch 11, 2015
DocketNo. 14-904
StatusPublished

This text of 160 So. 3d 587 (308 Holding Co., LLC v. Equity Trust Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
308 Holding Co., LLC v. Equity Trust Co., 160 So. 3d 587, 14 La.App. 3 Cir. 903, 2015 La. App. LEXIS 515, 2015 WL 1035925 (La. Ct. App. 2015).

Opinion

COOKS, Judge.

| iThese appeals arise from the trial court’s judgment finding an alleged mortgage between the parties was instead a simulation and not a mortgage. The trial court nullified the alleged mortgage and granted an order to remove it from the public records. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The facts established Plaintiffs, Linda Donado and her son, William Donado, were real estate agents who worked regularly for Charles Breland beginning in 2002. The Donados worked approximately nine years for Breland, purchasing and selling millions of dollars of properties in Mexico. The Donados worked on commissions they would receive from the sale or purchase of the properties.

In the fall of 2004, the Donados were due to receive several millions dollars in commissions in the near future, the first such commission to accrue following a December 15, 2004 closing. During this time period, Linda found herself facing a December 1, 2004 expiration of a purchase agreement for a home located at 101 Turf-way Drive in Lafayette, Louisiana because her lessor/seller would not agree to an extension. She discussed her situation with Breland and asked if he would advance her $700,000 of the approximately $5.8 million the Donados would be receiving in commissions.

According to the Donados, Breland agreed to the advance, but conditioned the advance upon an agreement which would require the Donados to repay $1 million to Breland from the future commissions. The Donados stated Breland told Linda he did not personally have $700,000 available, but he could arrange for the loan to be made from his self-directed IRA. Linda was referred to Breland’s counsel, who arranged for the loan to be funded by his IRA. Breland required a note and mortgage on the home at 101 Turfway Drive, but only to facilitate the use 12of IRA funds from Equity Trust, the custodian of Bre-land’s IRA, to make the advance. The Donados maintained they accepted Bre-land’s condition and agreed to execute the repayment counterletter. All paperwork required by Equity Trust was properly completed and executed.

Breland argued he and the Donados had a “special agreement by which Breland would be paid $500,000 for each of the two transactions when each closed (one in December, 2004 and one in March, 2005).” His version of the arrangement differs significantly from that of the Donados. Bre-land testified he requested this arrangement due to the “windfall of commissions” the Donados were to receive. Breland maintained this was the reason the two payments of $500,000 were to be made to him.

The first $500,000 repayment was required on December 15, 2004, and the second was to be repaid from escrow after a second closing in March 2005. A $500,000 repayment was made by the Do-nados immediately upon receiving their commission following the December 15, 2004 closing. Following the March 2005 [589]*589closing, a large portion of the Donados commission was placed in an escrow account. In July of 2005, it is undisputed Breland withdrew the funds necessary to make the second repayment.

Despite the Donados repaying Breland the agreed upon $1 million, the mortgage was never removed from the public records. Although no demand was ever made for the home at 101 Turfway Drive, the terms of the mortgage provided a one year maturity date of December 1, 2005.

Several years later, in early 2007, the Donados became aware the home at 101 Turfway was still subject to the Equity Trust mortgage. The discovery was made when Linda attempted to execute a reverse mortgage on the property to acquire money to help care for her aging parents.

| sWilliam stated he contacted Breland and was told that Breland had not paid off the Equity Trust mortgage, despite the receipt of $1 million dollars from the Dona-dos. Breland explained he needed to keep the mortgage in place and requested a substitute mortgage on William’s house at 104 Turfway Drive. William testified that in an attempt to indulge Breland and continue their profitable business association, he agreed to the request and executed the mortgage, which released the mortgage on the property at 101 Turfway Drive.

Ultimately, the relationship between Breland and the Donados became contemptuous. On June 8, 2011, a “Petition to Extinguish Mortgage and Cancel Recor-dation” was filed by 308 Holding Company, and its duly authorized members, Linda and William Donado.1 It sought to have the mortgage on the property at 104 Turf-way Drive released. Named as defendant in the petition was Equity Trust Company, as the custodian of Charles Breland’s IRA. Approximately four months after the Do-nados filed their petition, Equity Trust, purportedly at the request of Breland, sought to foreclose on the mortgage. To that end, a Verified Petition for Executory Process and a Writ of Seizure were filed by Equity Trust in October of 2014.

The matter was tried before the district court on April 14-15, 2014. The trial court found the presumptive mortgage on the property at 104 Turfway Drive was a simulation. The trial court nullified the note and mortgage, ordering it removed from the public records. Equity Trust’s Petition for Executory Process was dismissed with prejudice. The trial court, in its oral reasons for judgment, stated:

Well, I am going to rule that it’s a simulation. I mean, everything that I’ve seen shows me that Mr. Breland was in total control of these funds. Everything that Mr. Breland did, he directed people to pay certain things and how to' do it.... it’s not a traditional mortgage and there was no, ever, demand that it be paid, which to me leads me to believe that there’s no doubt that they knew it was repaid |4between themselves, but Equity Trust didn’t know it was repaid. And Mr. Breland could have simply directed that money be sent to Equity Trust and he would have paid back his retirement IRA and everybody would have been happy. But he, obviously, needed cash or something along the way to continue the cash flow for the deal.
... It just seems as if he was in control of those monies from the very beginning and this was just something to put in his Equity Trust account to verify that there was an outstanding [590]*590debt so that he had this money to himself.

This appeal followed, wherein Equity Trust asserts the trial court erred in its refusal to recognize and enforce Equity ■Trust’s note and mortgage. For the following reasons, we affirm.

ANALYSIS

Louisiana Civil Code Article 2025 provides a simulation contract is one which “by mutual agreement ... does not express the true intent of the parties.” This court in Hutsen v. Davis, 07-1550, p. 2 (La.App. 3 Cir. 5/7/08), 983 So.2d 266, 268 (quoting Richard v. Thompson, 411 So.2d 699, 701 (La.App. 4 Cir.1982)), discussed the burden of proving a simulated contract at trial:

A simulated contract is one which has no substance whatsoever. Such a contract may be declared null at any time at the demand of any person in interest. A presumption of simulation may arise when the plaintiff produces facts casting serious doubts on the validity of the transaction. Once the presumption arises the burden shifts to the defendants to prove the validity of the transaction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perkins v. Entergy Corp.
782 So. 2d 606 (Supreme Court of Louisiana, 2001)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Ridgedell v. Succession of Kuyrkendall
740 So. 2d 173 (Louisiana Court of Appeal, 1999)
HUTSEN v. Davis
983 So. 2d 266 (Louisiana Court of Appeal, 2008)
Miller v. Jackson
80 So. 3d 673 (Louisiana Court of Appeal, 2011)
Richard v. Thompson
411 So. 2d 699 (Louisiana Court of Appeal, 1982)
Pelican Outdoor Advertising, Inc. v. Eugene
786 So. 2d 184 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
160 So. 3d 587, 14 La.App. 3 Cir. 903, 2015 La. App. LEXIS 515, 2015 WL 1035925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/308-holding-co-llc-v-equity-trust-co-lactapp-2015.