Carter v. First South Farm Credit, ACA

161 So. 3d 928, 2015 La. App. LEXIS 46, 2015 WL 160443
CourtLouisiana Court of Appeal
DecidedJanuary 14, 2015
DocketNo. 49,531-CA
StatusPublished
Cited by5 cases

This text of 161 So. 3d 928 (Carter v. First South Farm Credit, ACA) 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
Carter v. First South Farm Credit, ACA, 161 So. 3d 928, 2015 La. App. LEXIS 46, 2015 WL 160443 (La. Ct. App. 2015).

Opinions

PITMAN, J.

| Plaintiff-Appellants Christi Lynn Carter and Linda S. Payne, who serves as bankruptcy trustee for Michael Shawn Carter’s estate, appeal the trial court’s granting of motions for summary judgment filed by Defendant-Appellees First South Farm Credit (“First South”) and Michael E. Kramer. The parties do not contest the trial court’s denial of a motion for summary judgment filed by Defendant Dawn H. Mims.1 For the following reasons, we affirm.

FACTS

In 2007 and 2009, the Carters signed two promissory notes in the amounts of $656,000 and $387,000, respectively, plus interest secured by mortgages in favor of First South. The loans were secured by 80 acres of immovable property in Rich-land Parish and by equipment, farm products and crops. In 2008, the Carters moved from Louisiana to Texas. In February 2010, they defaulted on the loans with First South. In October 2010, Mr. Kramer, the attorney for First South, sent a letter to the Carters at their address in Texas, stating that the loans were in default and that legal proceedings would be initiated if they were not paid. The Carters failed to pay the loans.

On December 21, 2010, Mr. Kramer filed a petition for executory process against the Carters on behalf of First South, alleging that the Carters were former residents of Louisiana who were now Texas residents and |2requested the appointment of an attorney to represent them interests.2 Ms. Mims was appointed as curator3 and was served with the notice of seizure and sale for certain immovable and movable property owned by the Carters. Their immovable property was sold at sheriffs sale for $180,000. Following the seizure and sale, the deficiency was $244,696.21 with interest.

On April 4, 2012, the Carters filed a petition alleging a wrongful seizure and conversion of their property in that their immovable and movable property located in Richland Parish and/or Franklin Parish [931]*931was sold at auction, but they did not receive notice of the seizures and sales until after the auctions. The Carters argued that Mr. Kramer failed to meet the burden necessary for the appointment of a curator. They also alleged that Curator Mims failed to perform her duties as curator because she did not file an answer to the petition for executory process, did not assert defenses on their behalf, did not file a curator’s return and did not contact them prior to the sale of their immovable property. The Carters alleged that Mr. Kramer knew of Curator Mims’s failures and yet proceeded with the sale of the immovable property. They further alleged that Mr. Kramer failed to contact them prior to the sheriffs sale even though he had their telephone numbers, email addresses and mailing address. They argued that the acts of l.sMr. Kramer and Curator Mims in failing to contact them and provide them with proper notice of the seizure and sale of their property deprived them of their constitutional due process rights. The Carters argued that First South and Mr. Kramer could not obtain a deficiency judgment because they failed to provide them with proper notice of seizure or the right to appoint appraisers. The Carters also asserted that their due process rights were violated and that they have a 42 U.S.C. § 1983 claim. They alleged that First South, Mr. Kramer and Curator Mims did not meet the standard found in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), that required reasonable diligence to locate and serve them with the notice of seizure and sale when their location was not only reasonably ascertainable, but known by Mr. Kramer.4 They contended that Mr. Kramer and First South are solidarily liable for all damages for wrongful seizure and conversion, including, but not limited to, compensation for inconvenience, loss of use, embarrassment, humiliation, mental anguish and worry, and compensatory damages.

On May 15, 2012, First South filed an answer, reconventional demand and cross claim. First South contended that the Carters failed to state a cause of action for wrongful seizure and/or conversion of property. It alleged that the sale of the Carters’ property was insufficient to satisfy the balance of the performance due on notes, which resulted in a $244,696.21 deficiency, and asserted a reconventional claim for recovery of the |4deficiency with interest and attorney fees. First South also asserted a cross claim against Curator Mims because the Carters alleged that her conduct in failing to contact them and give them proper notice precluded First South’s entitlement to a deficiency judgment. In the alternative, First South sought recovery against Curator Mims for the amount of the deficiency judgment of which it was deprived and/or damages for which it may be cast.

On May 23, 2012, Mr. Kramer filed an answer in which he denied all liability for all acts and/or omissions and for all damages asserted by the Carters. In the alternative, he alleged that any damages suffered by the Carters for which he is responsible are the fault of the Carters and/or third parties. Mr. Kramer also contended that the Carters failed to mitigate their damages.

On November 21, 2013, First South filed a motion for partial summary judgment regarding the claims of and against Mrs. [932]*932Carter because Mr. Carter was in bankruptcy. First South argued that a deficiency judgment was appropriate and that 42 U.S.C. § 1983 does not apply because First South is a private party and not a state actor and there was no violation of due process as notice was given.

On December 20, 2013, Mr. Kramer filed a motion for summary judgment, asserting that Mr. Carter had no right to bring the cause of action because he had filed for bankruptcy. Mr. Kramer contended that he acted lawfully in the foreclosure proceedings and was legally authorized to appoint a curator for the Carters because they were absentees as they resided outside of the state of Louisiana. He further stated that the notice of seizure Land sale to Curator Mims was proper as she was the Carters’ curator; therefore, there was no violation of 42 U.S.C. § 1983.

On February 10, 2014, the Carters filed an opposition to the motions for summary judgment. They reasserted the claims raised in their original petition. First South and Mr. Kramer filed replies to the Carters’ opposition and reasserted the claims made in their motions for summary judgment. A hearing was held on the motions for summary judgment and the exceptions of no right of action on February 18, 2014.

On February 25, 2014, the trial court filed written reasons for judgment. Regarding the exceptions of no right of action contained in the motion for summary judgment filed by First South, Mr. Kramer and Curator Mims, the trial court determined that, due to the filing of the Chapter 7 bankruptcy by Mr. Carter, he no longer had an interest in judicially enforcing the right asserted. The trial court stated that the only person who can enforce the right for Mr. Carter is the bankruptcy trustee and gave the Carters 30 days to amend their petition to state the correct plaintiffs.

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161 So. 3d 928, 2015 La. App. LEXIS 46, 2015 WL 160443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-first-south-farm-credit-aca-lactapp-2015.