Credit Recoveries, Inc. v. Crow

862 So. 2d 1146, 2003 La. App. LEXIS 3834, 2003 WL 22997222
CourtLouisiana Court of Appeal
DecidedDecember 17, 2003
Docket37,913-CA
StatusPublished
Cited by4 cases

This text of 862 So. 2d 1146 (Credit Recoveries, Inc. v. Crow) 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
Credit Recoveries, Inc. v. Crow, 862 So. 2d 1146, 2003 La. App. LEXIS 3834, 2003 WL 22997222 (La. Ct. App. 2003).

Opinion

862 So.2d 1146 (2003)

CREDIT RECOVERIES, INC. Plaintiff-Appellant
v.
Chester L. CROW Defendant-Appellee

No. 37,913-CA.

Court of Appeal of Louisiana, Second Circuit.

December 17, 2003.

*1147 Rogers, Hearne & Carter by Michael B. Rennix, Counsel for Appellant.

Robert U. Goodman, Shreveport, Counsel for Appellee.

Before STEWART, DREW and LOLLEY, JJ.

DREW, J.

Credit Recoveries, Inc. appeals from a judgment dismissing its lawsuit against Chester L. Crow. We reverse and remand.

FACTS

In this suit on a promissory note, the question is whether the trial court erred in dismissing the plaintiff's lawsuit on the basis that the note was inadmissible into evidence. On July 12, 1988, Chester L. Crow executed a promissory note payable "to the order of THE FIRST NATIONAL BANK OF SHREVEPORT or BEARER" in the amount of $21,578.42 at an interest rate of 3% per annum above the prime *1148 rate in effect at The First National Bank of Shreveport until paid. A copy of this note was attached to the petition in this case. It is a standard preprinted promissory note, and the back of the note bears the following undated restrictive indorsement:

PAY TO THE ORDER OF CREDIT RECOVERIES, INC. WITHOUT RECOURSE, REPRESENTATION OR WARRANTY OF ANY KIND.

PREMIER BANK, NATIONAL ASSOCIATION

BY: /s/ Palmer Perque

TITLE: PALMER PERQUE, VICE PRESIDENT

On July 15, 1999, Credit Recoveries filed this lawsuit against Chester L. Crow, alleging that Crow owed $7,222.57 on the note, plus interest, as of the last payment date of November 11, 1994. Crow filed an answer generally denying the allegations of the petition. Thereafter, Credit Recoveries filed a motion for summary judgment, supported by inter alia an affidavit of its president, James William Scott, alleging the amount owed and the date of the last payment.

In response, Crow filed an opposition asserting that Premier Bank, N.A., the successor to The First National Bank of Shreveport, had cancelled the debt on September 8, 1994. In support of his opposition, Crow attached:

• A copy of the note that appears identical in substance to the copy attached to the plaintiff's petition, and he stated in his opposition that this note was indeed a copy of the note evidencing the debt.

• What appears to be a bank statement showing a balance on some account of $8,655.73 as of July 8, 1991.

• An IRS Form 1099 for 1994 executed by Premier Bank, N.A., as creditor in favor of Crow as debtor cancelling on September 8, 1994, a debt of $7,891.00.[1]

• Copies of checks written by Crow and his wife to Premier Bank on September 10, 1994; October 6, 1994; and November 11, 1994, in the amount of $50.00 each.

• An undated and unpersonalized letter from Premier Bank, to "Loan Customer" noting that the customer's recent loan payment was more than what was due and stating that a check accompanying the letter was a refund of the overpayment.

In an accompanying affidavit, Crow admitted that Premier Bank, N.A., was the successor to The First National Bank of Shreveport, that he was unable to make payments on the note after June 27, 1991, and that Premier Bank, N.A., cancelled the debt on September 8, 1994. Crow stated that the $50 checks were payments made by him to Premier after the bank had cancelled the debt and that by its letter Premier refunded these payments to him.

Upon this evidence, the trial court denied summary judgment for Credit Recoveries, and after both plaintiff and defendant secured new counsel, Crow filed an amended answer. In this answer, Crow alleged that at the time Credit Recoveries purchased the note, the obligation represented by the note had been extinguished by the then holder of the note and thus Credit Recoveries had no cause of action. Crow further alleged that the obligation had been extinguished by remission or rescission, and that the actions of Credit Recoveries, "assignee of Bank One," had prejudiced him and that Credit Recoveries *1149 was estopped from asserting its claim against him.

In his witness list, Crow noted that he might call "a representative and employee of Bank One, successor in interest to Premier Bank, as yet unnamed [.]" In the statement of the case in his pre-trial brief, Crow noted that Premier Bank, N.A., was the successor to The First National Bank of Shreveport, and he stated that Credit Recoveries purchased the note on September 30, 1994.

Thereafter, the matter went to trial. Prior to the commencement of testimony, the plaintiff offered the note, filed into the suit record as an attachment to its motion for summary judgment, as plaintiff's Exhibit 1. Crow objected to the introduction of the note into evidence, asserting that since the lawsuit was brought by someone other than the payee, the plaintiff had to prove its ownership of the note. After discussion of the applicable law, the court refused to allow Credit Recoveries to introduce the note into evidence at that time. Thereafter, Credit Recoveries called Mr. Crow to testify.

Crow admitted that he was the person who borrowed $21,578.42 from The First National Bank of Shreveport on July 12, 1988, and admitted that he had made payments on the note to that bank and to other unspecified payees. Crow was not asked and did not admit that the note offered as plaintiff's Exhibit 1 was the note that he signed. Crow admitted that he had received a demand for payment on the note from Credit Recoveries and that he had asserted the remission of the debt. When shown a letter purportedly written by him to Credit Recoveries containing an offer to repay the debt under different terms, Crow said that he had no recollection of the letter, and the court refused to allow this into evidence as well, citing its absence on the exhibit list filed by the plaintiff.[2] Counsel for Credit Recoveries asked for a continuance to allow the owner of the company to testify about the chain of ownership of the note since that issue was a surprise. The court denied this request, and when the plaintiff had nothing further to offer, Crow moved for an involuntary dismissal under La. C.C.P. art. 1672(B). The court granted the motion, noting that it could do nothing else, since no evidence had been admitted to identify the note. The court specifically observed, "Actually, I think the note possibly could have been identified by Mr. Crow, but it is too late for that now."

The court signed a judgment dismissing Credit Recoveries' lawsuit on April 22, 2002, but no proof of mailing of notice of the judgment to the plaintiff or his counsel appears in the record. Credit Recoveries filed a motion for new trial on May 10, 2002, urging that the court should have admitted the note. Credit Recoveries filed a motion to set aside the judgment on June 18, 2002, urging that its counsel had not been given the opportunity to review the judgment before signing as contemplated by Rule 9.5 of the Rules for Louisiana District Courts. On August 12, 2002, the court signed a second judgment identical to the April 22, 2002, judgment dismissing Credit Recoveries' action, and notice of judgment was mailed to the plaintiff on August 14, 2002. On August 21, 2002, Credit Recoveries filed a second motion for new trial, urging that the court should have admitted the note; the court denied the motion in open court on October 14, 2002, and signed a judgment memorializing the denial on December 26, 2002. No notice of mailing of judgment per La. *1150 C.C.P. art. 1914(C) appears in the record.

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Bluebook (online)
862 So. 2d 1146, 2003 La. App. LEXIS 3834, 2003 WL 22997222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/credit-recoveries-inc-v-crow-lactapp-2003.