Elmwood Federal Savings & Loan Assoc. v. Sanco Louisiana, Inc.

557 So. 2d 296, 1990 La. App. LEXIS 17, 1990 WL 2380
CourtLouisiana Court of Appeal
DecidedJanuary 16, 1990
DocketNo. 89-CA-0725
StatusPublished
Cited by3 cases

This text of 557 So. 2d 296 (Elmwood Federal Savings & Loan Assoc. v. Sanco Louisiana, Inc.) 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
Elmwood Federal Savings & Loan Assoc. v. Sanco Louisiana, Inc., 557 So. 2d 296, 1990 La. App. LEXIS 17, 1990 WL 2380 (La. Ct. App. 1990).

Opinion

WARD, Judge.

Elmwood Federal Savings & Loan Association sought a deficiency judgment on a loan against Sanco Louisiana, Inc. after foreclosing by executory process on the property mortgaged to secure the loan. In the deficiency judgment action, Elmwood filed a motion for summary judgment. On December 6, 1988 the Trial Court granted the motion, awarding Elmwood $450,222.16 plus interest and attorney fees, subject to a credit for the sale price of the property purchased by Elmwood at the sheriffs sale. On January 4, 1989, the Trial Court, on its own motion, rendered an “amended/corrected judgment,” awarding Elm-wood $937,500.00 plus interest and attorney fees, subject to a credit for the sale price of the property purchased at the sheriffs sale.

Saneo appeals the amended judgment, asserting that the Trial Court erred in amending its earlier judgment to substantively alter the judgment. Also, Sanco argues that the Trial Judge failed to timely grant a new trial. Finally, and alternatively, Sanco contends the Trial Court erred in granting summary judgment to Elmwood. We affirm.

When Elmwood filed its petition for exec-utory process in February 1987, the principal balance due on the promissory note which the mortgage secured was $925,-282.55 plus interest and attorney fees. After appraisal, Elmwood purchased the mortgaged property at the sheriffs sale for $600,000.00. Elmwood’s original petition for deficiency judgment against Sanco requested judgment in the amount of $450,-222.16 plus interest and attorney fees, subject to a credit of $600,000.00. Because $450,222.16 was the principal amount Elm-wood claimed Sanco owed after subtracting the $600,000.00 credit, Elmwood was erroneously asking that Sanco be given credit twice for the amount Elmwood paid at the sheriffs sale. On October 16, 1987, Elm-wood filed an amending and supplemental petition, amending its prayer to request judgment for $937,500.00 plus interest and attorney fees, minus the $600,000.00 credit.

Apparently, when the Trial Judge originally rendered judgment he tracked the language of the prayer in Elmwood’s original petition instead of the amended petition. Then, realizing his error, the Trial Judge rendered judgment in which he granted a motion for a partial new trial on his own motion, finding the original judgment contrary to the law and the evidence, and then amended and/or corrected the earlier summary judgment.

In rendering the amended/corrected judgment, the Trial Court cited La.C.C.P. arts. 1951, 1971 and 1972 which provide:

Art. 1951. Amendment of judgment A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.
Art. 1971. Granting of new trial
a new trial may .be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.
Art. 1972. Peremptory grounds
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

Given the circumstances in this case, we believe the Trial Court, on its own motion, merely amended its earlier judgment to correct what was an error of calculation, which is clearly authorized under La.C.C.P. art. 1951. Obviously, the prayer in the original petition was wrong because it [298]*298would have allowed Saneo to obtain a second credit for the price Elmwood paid for the property.

The Trial Judge believed that his first judgment contained an error of calculation, and he did not intend to alter the substance of his original judgment. In his amended judgment, the Trial Judge stated:

This matter arises Ex-proprio motu pursuant to Code of Civil Procedure Articles 1951 and 1971 for the partial granting of a new trial to correct a summary judgment rendered herein in favor of the plaintiff on December 6th, 1988.
At the time the summary judgment was rendered by the Court, plaintiffs original prayer was used by the Court in preparation of the judgment instead of plaintiffs prayer as set forth in plaintiffs amended petition and therefore, the summary judgment is contrary to the law and the evidence.
For the reasons set forth herein above and pursuant to Code of Civil Procedure Articles 1951, 1971, and 1972, a motion for new trial is granted and the summary judgment is amended and corrected ...

We find no error in the Trial Court’s amendment of its original judgment to correct an error of calculation.

Sanco’s argument that the Trial Court’s grant of a new trial was untimely is also meritless. Because we find the Trial Court’s action falls within the scope of La.C.C.P. art. 1951, the “granting of a new trial” was superfluous. Therefore, whether the Trial Judge timely granted its own motion for new trial is of no consequence because new trials are granted to consider altering the substance of a judgment, not, as in this case, to correct an error of calculation.

Alternatively, claiming there are genuine issues of material fact still in dispute, Sanco argues that the Trial Court erred in granting summary judgment in favor of Elmwood for a deficiency. Sanco claims that Elmwood is not entitled to summary judgment on the deficiency judgment petition because Elmwood led Sanco to believe that it would take a dation en paiement of the property. Sanco contends that if this agreement existed, then it would not be liable to Elmwood beyond the return of the property. La.C.C. art. 2655 provides:

The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due. (Emphasis added.)

A valid dation therefore would require Elmwood’s consent. However, no evidence of an agreement was presented to the Trial Court to substantiate Sanco’s claim.

In defense of a deficiency judgment suit, “the debtor may assert that an obligation is null, or that it has been modified or extinguished, but in such a case the debtor must prove the facts or acts giving rise to the nullity, modification, or extinction. La.C.C. art. 1831; La.C.Civ.P. art. 1005.” First Guaranty Bank v. Baton Rouge Petroleum, 529 So.2d 834, 842 (La.1988), on rehearing. By failing to prove this defense to the deficiency judgment claim, Sanco’s argument has no merit.

Finally, Sanco asserts that two procedural errors in the executory process preclude Elmwood from pursuing a deficiency judgment.

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Bluebook (online)
557 So. 2d 296, 1990 La. App. LEXIS 17, 1990 WL 2380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmwood-federal-savings-loan-assoc-v-sanco-louisiana-inc-lactapp-1990.