Bank of Lafayette v. Bailey

531 So. 2d 294, 1988 WL 65733
CourtLouisiana Court of Appeal
DecidedNovember 18, 1988
Docket87-496
StatusPublished
Cited by10 cases

This text of 531 So. 2d 294 (Bank of Lafayette v. Bailey) 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
Bank of Lafayette v. Bailey, 531 So. 2d 294, 1988 WL 65733 (La. Ct. App. 1988).

Opinion

531 So.2d 294 (1988)

BANK OF LAFAYETTE, Plaintiff-Appellee,
v.
Frank R. BAILEY, Jr. and Mary Louise White Bailey, Defendants-Appellants.

No. 87-496.

Court of Appeal of Louisiana, Third Circuit.

June 27, 1988.
Writ Granted in Part November 18, 1988.

*295 Allen, Gooch, Burgeois, Breaux, Robison & Theunissen, P.C., Paul J. Breaux, Neil G. Vincent, Lafayette, for plaintiff-appellee.

Hiatt & Kuehne, G. Bruce Kuehne, Eugene F. Pollingue, Jr., and Kenneth N. Hawkins, Lafayette, for defendants-appellants.

Before GUIDRY, FORET and LABORDE, JJ.

GUIDRY, Judge.

Defendants, Frank R. Bailey, Jr. and Mary Louise White Bailey, appeal the granting of a partial summary judgment in favor of plaintiff, Bank of Lafayette (hereafter "Bank"), awarding plaintiff a deficiency judgment against defendants for

"... the difference between the amount due to plaintiff on that certain promissory note drawn to plaintiff's order and dated July 12, 1986 [sic], which July 12, 1986 [sic] note is in the original sum of $175,620.75 and executed by defendant, Frank R. Bailey, Jr., and the amount of the proceeds of the foreclosure sale held in this cause by the Sheriff on February 19, 1986 pursuant to Order issued by this Court".[1]

On appeal, defendants argue that the trial court erred in three respects:

1. The trial court incorrectly held that affidavits which contradicted each other on material issues of fact did not present a genuine issue of material fact for trial.
2. The trial court erred in signing an order permitting the filing of a supplemental answer, which was filed, and in then holding that the issue raised therein would not be considered on rehearing.
3. The trial court erred when it rendered summary judgment against Mary Louise White Bailey, as she did not sign the hand note which was secured by the collateral note and mortgage.

The Bank answered the appeal praying that the summary judgment of January 13, 1987, be modified so as to grant judgment in favor of the Bank and against defendants for

"... $175,438.50 with accrued interest from August 16, 1985 until paid and an attorney's fees of 25% of the principal and interest due, subject to a credit of $149,232.00 paid February 19, 1986."

The learned trial judge gave an excellent synopsis of the facts of the case in his written reasons for originally granting summary judgment in favor of plaintiff as follows:

"This is a suit for a deficiency judgment, filed by the Bank of Lafayette against Frank R. Bailey, Jr. and Mary Louise White Bailey. The plaintiff, Bank of Lafayette, filed a petition for executory process on December 19, 1985. Pursuant to a writ of seizure and sale, certain immovable property, which was the subject of a collateral mortgage executed by the defendants, Mr. and Mrs. Bailey, was *296 sold at a Sheriff's sale. From the proceeds of the sale $149,232.42 was applied as a credit to the balance due on a hand note signed only by Mr. Bailey. This hand note was payable in five monthly installments of $2500.00, with a final payment of $170,869.48. Interest on the hand note as stated in the verified petition was the `prime' or `base' lending rate at the Bank of Lafayette. The verified petition for executory process stated that the amount of interest due on the hand note through October 14, 1985 was $5,252.52 with a per diem interest of $56.48 until paid.
After all credits from the sale on the above stated property, the Bank of Lafayette in the present suit alleges that there is a principal balance due on the hand note of $37,332.37, accrued interest of $989.06 as of May 12, 1986, plus a per diem of $12.59 from May 12, 1986 until paid. Thus, this suit for a deficiency judgment."

The original hearing on the motion for summary judgment filed in connection with the suit for deficiency judgment was taken up on Monday, July 28, 1986. The matter was taken under advisement to be submitted on briefs which the court ruled were to be filed on or before August 1, 1986. Thereafter, on September 30, 1986, summary judgment was granted in favor of plaintiff. Subsequent to the signing of that judgment, several motions were filed by both sides: a motion for a new trial, a motion in opposition thereto, a motion to supplement pleadings, and a motion in opposition to the latter motion. These pleadings were all filed with the clerk of the trial court on either October 7, 1986 or October 8, 1986. Both the motion to supplement pleadings and the motion in opposition thereto, which prayed for a contradictory hearing on the issues were signed by the Commissioner of the Fifteenth Judicial District Court. In as much as judgment had already been rendered in the matter, the signing, by the Commissioner, of the motion to supplement pleadings, filed by defendants, was in error. The trial judge recognized this fact and, on December 8, 1986, held a hearing on the four motions filed subsequent to the judgment signed by him on September 30, 1986.

As a result of that hearing, the following judgment was rendered by the court on December 11, 1986:

"IT IS ORDERED, ADJUDGED AND DECREED that the Motion to Supplement Pleadings filed by defendants, Frank R. Bailey, Jr. and Mary Louise White Bailey is denied at defendants' cost.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Motion for New Trial filed on behalf of defendants, Frank R. Bailey, Jr. and Mary Louise White Bailey, is granted, however, only to permit this court to consider the Affidavits of:
G. Bruce Keuhne executed on July 31, 1986;
Yvonne (Bonnie) Ray Haight executed on July 28, 1986; and
Robert Wade executed on April 16, 1986, filed by defendants and attached to defendants' Memorandum in Opposition to Motion for Summary Judgment which were filed one week after hearing on the Motion for Summary Judgment, and to allow this court to reconsider its ruling on the Motion for Summary Judgment handed down on September 30, 1986, in light of said Affidavits."

After considering the matter on rehearing, the trial court, by judgment dated January 13, 1987, again rendered partial summary judgment in favor of the Bank. Defendants-appellants first urge that a genuine issue of material fact exists concerning whether the plaintiff, Bank, made certain representations, through its agents, to prospective purchasers, which statements they contend substantially reduced competitive bidding at the foreclosure sale. The issue raised was succinctly framed by the trial judge as follows:

"Prior to the time established for sheriff's sale of the property, but during the period of advertisement of such property, given to secure the payment of the debt referred to in the petition, one or more agents of the petitioner informed various *297 persons who were interested in purchasing such property that the petitioner would purchase the property at the sale for the full amount of the indebtedness and would sell the property at private sale thereafter."

Appellants urge that such fact is material because if it can be established that the statements were made and did stifle competitive bidding, such would constitute an irregularity in the judicial sale sufficient to deprive the Bank of its right to a deficiency judgment.

The affidavits of Mr. Keuhne and Ms.

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Bluebook (online)
531 So. 2d 294, 1988 WL 65733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-lafayette-v-bailey-lactapp-1988.