Casey v. Hibernia Corp.

709 So. 2d 933, 97 La.App. 4 Cir. 1273, 1998 La. App. LEXIS 334, 1998 WL 97678
CourtLouisiana Court of Appeal
DecidedMarch 4, 1998
DocketNo. 97-CA-1273
StatusPublished
Cited by3 cases

This text of 709 So. 2d 933 (Casey v. Hibernia Corp.) 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
Casey v. Hibernia Corp., 709 So. 2d 933, 97 La.App. 4 Cir. 1273, 1998 La. App. LEXIS 334, 1998 WL 97678 (La. Ct. App. 1998).

Opinion

I ,ARMSTRONG, Judge.

This is a lender liability case. The plaintiffs allegedly obtained a house construction loan from the defendant bank. The bank allegedly engaged an inspector to monitor the progress of construction. Allegedly, before the completion of the construction, the bank instructed the inspector to cease monitoring the construction. Allegedly, there was a very large cost overrun on the construction, which resulted in financial distress to the borrowers, foreclosure proceedings by the bank, bankruptcy of the plaintiffs and a bankruptcy court-ordered sale of the house at a great financial loss to the plaintiffs. The plaintiffs allege that this cost overrun would not have occurred but for the bank’s cessation of the monitoring of construction.

The key issue in this case is whether the bank had an obligation to the plaintiffs to have the construction monitored. The bank contends that the allegations of plaintiffs’ petition as to that issue are inadequate to state a cause of action in light of La. R.S. 6:1121-23. Based upon that contention, the bank filed an exception of no cause of action. After twice allowing the plaintiffs to amend and supplement their petition, the trial court maintained that exception and ^dismissed. We find that the allegations of the plaintiffs’ petition as amended are inadequate to state a cause of action in light of La. R.S. 6:1121-28, and so we affirm.

Plaintiffs Byron J. Casey, III and Stephanie J. Johnson allege that they purchased an unimproved lot in New Orleans and, in connection with that purchase, executed a mortgage. The plaintiffs then allege that they entered into an agreement with a local contractor to build their house on the lot for a price of $335,000. The plaintiffs’ petition, as amended, then makes the following allegations:

5.
The petitioners presented a written loan application to Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank in order to secure a loan in the sum of $150,000.00 for the anticipated ultimate completion of construction as petitioners had anticipated employing their own funds during the initial stages of construction.
[935]*9355(a).
That subsequent to the date of the submission of their written loan application to Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank the said Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank executed a written loan commitment document approving petitioners’ written loan application.
6.
Construction of the improvements being made at 57 Dove Street, New Orleans, Louisiana, began in September of 1989.
7.
As per a provision of the terms of the loan, Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank ordered the Griffin Group to monitor the construction in question.
_jj8.
The Griffin Group monitored the construction thru December 4, 1989 at which time Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank instructed the Griffin Group to discontinue the monitoring of construction despite the fact that inconsistencies were observed in the cost of construction.
9.
The construction of the improvements at 57 Dove Street, New Orleans, Louisiana were completed in June of 1990. The cost of construction of the improvements to-talled some $515,000.00 rather than the contracted price of $335,000.00.
10.
Petitioners aver that the discrepancy in the cost of construction was caused by the negligence of Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank in failing to monitor the construction of the improvements.
11.
That as a result thereof, petitioners became delinquent in the payment of the loan to Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank. The bank in question instituted foreclosure proceedings necessitating the filing of bankruptcy proceedings to be filed by Byron J. Casey III in order to obtain a stay order halting the judicial sale of the referred to property.
12.
Petitioners’ residence located at 57 Dove Street, New Orleans, Louisiana, was placed on the real estate market for sale in order to comply with the orders of the U.S. Bankruptcy Court. The property was eventually sold in November of 1992 for the sum of $450,000.00. Petitioners realized the sum of $127,214.90 from the sale of the property after deducting from the purchase price the amount owed Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank. Petitioners sustained a loss of sum $513,000.00 from the forced sale of the referred to property.
J43.
Petitioners allege that Hibernia Corporation d/b/a Hibernia National Bank and/or Hibernia National Bank breached its contract with petitioners by failing to monitor the construction of the improvements being constructed at 57 Dove Street, New Orleans, Louisiana. Petitioners further allege that the breach caused the ultimate foreclosure of the said property and the sale thereof resulting in a net loss to the petitioners of $513,000.00

The above-quoted allegations are followed by allegations of special and general damages, and allegations of additional legal theories.

The cornerstone of the plaintiffs’ suit is their claim that Hibernia agreed to have an inspector monitor construction of their house and then ceased doing so. Hibernia argues that such an agreement to monitor construction can be actionable only if that agreement was in a signed writing. Specifically, Hibernia relies upon a statute, referred to in the [936]*936caselaw as the Louisiana Credit Agreement Statute (“LCA Statute”), which provides, in pertinent part: “A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and debtor.” La. R.S. 6:1122. See generally, Whitney National Bank v. Rockwell, 94-3049 (La.10/16/95), 661 So.2d 1325 (extensive discussion of LCA Statute); Fleming Irrigation v. Pioneer Bank & Trust, 27,262 (La.App.2d Cir. 8/23/95), 661 So.2d 1035, writ denied, 95-2357 (La.12/8/95), 664 So.2d 427; DiGioia, Whitney National Bank v. Rockwell: The Louisiana Supreme Court Enforces the Statute of Frauds for Credit Agreements, 70 Tul. L.Rev. 1739 (1996).

The plaintiffs argue first that we need not even consider the LCA Statute because some of the relevant events predate the statute and the statute is not |5retroactive. It has, indeed, been held that the LCA Statute is not retroactive. Trans-Global Alloy v. First Nat. Bank, 583 So.2d 443, 450 (La. 1991); Bryant v. Heritage Life Ins. Co., 613 So.2d 1044 (La.App. 3 Cir.1993). In Trans-Global and Bryant, all of the relevant events had occurred before the enactment of the LCA Statute. In fact, in Trans-Global, suit had been filed about four years before enactment of the LCA Statute.

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Bluebook (online)
709 So. 2d 933, 97 La.App. 4 Cir. 1273, 1998 La. App. LEXIS 334, 1998 WL 97678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-hibernia-corp-lactapp-1998.