Advocate Financial, L.L.C. v. Longenecker & Associates, Ltd.

3 So. 3d LXXV
CourtLouisiana Court of Appeal
DecidedNovember 25, 2008
DocketNo. 08-CA-490
StatusPublished

This text of 3 So. 3d LXXV (Advocate Financial, L.L.C. v. Longenecker & Associates, Ltd.) 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
Advocate Financial, L.L.C. v. Longenecker & Associates, Ltd., 3 So. 3d LXXV (La. Ct. App. 2008).

Opinion

MADELINE JASMINE, Judge Pro Tempore.

| ^Appellant, Lafayette Insurance Company (Lafayette), appeals the grant of summary judgment in favor of plaintiff, Advocate Financial, L.L.C (Advocate). This suit arises out of a personal injury litigation, Pam Doran v. Lafayette Ins. Co. and House of Hubcaps.1 Advocate, a champerty lender who loaned money to Doran and her attorney, Robert L. Hackett, to finance this and other litigation, filed suit against Lafayette to enforce its rights under LSA-R.S. 10:9-4122 after Lafayette tendered payment of litigation proceeds directly to Doran and her attorney, instead of paying Advocate after Advocate notified Lafayette’s litigation counsel that Doran and her attorney had assigned the proceeds of the litigation to Advocate.

For the following reasons, we affirm the judgment in favor of Advocate. Lafayette has also filed in this Court an Exception of No Cause of Action, which we also deny for the reasons below.

| :;On appeal, Lafayette assigns the following errors of the trial court:

1. The Trial Court erred in applying the non-uniform provisions of ■ R.S.10:9-411-412 of Louisiana’s Uniform Commercial Code-Secured to the transactions and judgment sued upon in this matter. La. R.S.10:9-109(d) provides the UCC does not apply to a transfer of an interest in or an assignment of a claim under a policy of insurance. R.S. 22:655(B)(i) gives an injured person a direct right of action against the liability insurer of a tortfeasor. This applies to both notices and to both the Doran indebtedness as well as to the Hack-ett indebtedness.
2. The Trial Court erred in finding that Lafayette Insurance Company was indebted to Robert Hackett et al in the Doran litigation. Advocate could have no greater rights against Lafayette than did Mr. Hackett. If Lafayette was not indebted to Mr. Hackett, then there would be nothing to seize.
3. The Trial Court erred in finding that a creditor’s attorney may provide “notification, authenticated by the debtor or the secured party.”
4. The Trial Court erred in finding that “notice” may be given to independent, litigation counsel rather than to a registered agent for service of process, to a director or [3]*3officer of the corporation, or to the corporate offices and place of business.
5. The Trial Court erred in finding that the prerequisites for notice and authentication under R.S.10:9-411-412 had been properly met with respect to the Advocate-Do-ran indebtedness.
6. The Tidal Court erred in finding that the notice to an organization R.S.10:1-201, subsections 25, 26 and 27 (before amendment) had been properly met with respect to the Advocate-Doran indebtedness, viz., sent to litigation counsel.
7. The Trial Court erred in finding that the prerequisites for notice and authentication under R.S. 10:9-411-412 had been properly met with respect to the Advocate-Hack-ett indebtedness.
8. The Trial Court erred in finding that the prerequisites for notice had been met where the notice letter was sent with reference to “Robert L. Hackett” but the satisfaction of judgment check was made payable to “Pamela Doran and the Law Offices of Robert L. Hackett, LLC” a completely separate legal entity.
9. The Trial Court erred in finding that R.S.10:1-201, subsections 25, 26 and 27 (before amendment) had been properly met with respect to the Advocate-Hackett indebtedness.
|410- The Trial Court erred in failing to apply the defense of contributory and comparative negligence to the claim and all other defenses pleaded in the Answer, as well as the plea that Pamela Doran’s indebtedness has prescribed.
11. The Trial Court erred in granting the Motion for Summary Judgment, as there existed genuine issues of material fact, the existence or non-existence of which are essential to plaintiffs cause of action.

FACTS AND PERTINENT PROCEDURAL HISTORY

Pamela Doran was a client of attorney, Richard L. Hackett, whom Hackett represented on a contingency fee basis in her personal injury suit against Lafayette and its insured, House of Hubcaps, filed on January 26, 1996. During the course of Hackett’s representation of Doran, Hack-ett executed and delivered to Advocate two commercial guarantees of unlimited amount and security agreements. The first set, dated November 16, 1995, Hack-ett signed individually and as sole proprietor on behalf of Hackett and Associates, his law firm. Advocate’s security interests were perfected by the filing of a UCC-1 financing statement. On February 2, 1998, Hackett executed and delivered to Advocate the second commercial guaranty of unlimited amount, signed by Hackett individually and as sole proprietor on behalf of the Law Offices of Robert L. Hack-ett. Hackett secured his debt with Advocate by assigning his rights to his share of the proceeds in the Doran litigation to Advocate. On April 10, 2000, and on November 15, 2000, Hackett executed and delivered to Advocate promissory notes, which were admitted into the record.

Doran also borrowed money from Advocate. Doran’s indebtedness to Advocate was secured by a perfected security interest covering, among other things, all sums received by Doran in the Doran litigation, as evidenced by the |fipromissory note, client security agreement, and UCC-1 financing statement, which were admitted into the record.

The Doran litigation was tried to a jury September 9-11 of 2002, who reached a [4]*4verdict in favor of Doran and awarded her money damages. Judgment was entered on November 12, 2002.

Shortly before trial, on September 6, 2002, Advocate’s counsel sent a letter, via certified mail, to Lafayette’s trial attorney in the Doran litigation, Geoffrey Longe-necker, notifying Lafayette3 of its perfected security interest in any sums tendered by Lafayette to Doran, specifically under LSA-R.S. 10:9-412. This letter was received by Lafayette’s attorney on September 11, 2002. Attached to it was Advocate’s documentation of the debt, including the UCC-1 filing statement.

On October 1, 2002, Lafayette, through its attorney Longenecker, issued a subpoena duces tecum and Notice of Deposition to Advocate for copies of “all notes, mortgages, liens, claims, checks, bills, medical records, medical bills, and any other document of whatsoever kind or nature with respect to Pamela R. Doran and the subject of the claim asserted by you in the attached correspondence or otherwise.”

On October 17, 2002, Advocate’s counsel sent another letter, via certified mail, to Mr. Longenecker as Lafayette’s attorney, notifying Lafayette of its perfected security interest in any sums tendered by Lafayette in the Doran litigation to Hackett. This letter was received by Lafayette’s attorney on October 19, 2002. It, also, included Advocate’s documentation of the debt.

| fiThe trial court’s judgment was appealed; appellate counsel for Lafayette was Howard B. Kaplan. This Court rendered a judgment on appeal on November 25, 2003.4

On March 25, 2004, Lafayette tendered a check in the amount of $264,616.26 payable to “Pamela R. Doran and the Law Offices of Robert L. Hackett, L.L.C.” in satisfaction of the jury verdict in the Do-ran litigation.

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3 So. 3d LXXV, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advocate-financial-llc-v-longenecker-associates-ltd-lactapp-2008.