First Tower Loan, LLC d/b/a Tower Loan of Winnfield v. Ad Atkins

• Court: Louisiana Court of Appeal
• Decided: May 21, 2025
• Docket: 56,248-CA
• Status: Published

Opinion

Judgment rendered May 21, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 56,236-CA No. 56,248-CA (Consolidated Cases)

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** FIRST TOWER LOAN, LLC Plaintiff-Appellant D/B/A TOWER LOAN OF WINNFIELD versus

ROY COMBS Defendant-Appellee *****

consolidated with

***** FIRST TOWER LOAN, LLC Plaintiff-Appellant D/B/A TOWER LOAN OF WINNFIELD versus

AD ATKINS, A/K/A Defendant-Appellee A D ADKINS III ***** Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court Nos. 47,276 and 47,565

Honorable Anastasia S. Wiley, Judge *****

ROGERS, CARTER & PAYNE, LLC Counsel for Appellant By: Jessica L. Greber

AD ATKINS A/K/A In Proper Person A D ATKINS III *****

Before STONE, MARCOTTE, and ELLENDER, JJ. ELLENDER, J.

In these consolidated cases, First Tower Loan LLC, d/b/a Tower Loan

of Winnfield, appeals 15 default judgments in which the district court

rendered judgments for amounts different from those alleged in the petitions,

verified in the affidavits of correctness, and stated in the proposed

judgments. For the reasons expressed, we amend the judgments to conform

to the records and, as amended, render. A separate opinion is issued for each

borrower.

PROCEDURAL HISTORY

Ad Atkins, a/k/a A.D. Atkins III, of Winnfield, took out a loan from

Tower Loan in May 2023. The amount financed was $2,503.93, at a stated

APR of 36.20%, requiring Atkins to make 15 payments of $210.00, for a

total of $3,150.00. According to Tower Loan’s petition, Atkins never made

a single payment, leaving a balance of $3,049.19.

Tower Loan filed this suit on March 28, 2024, seeking the unpaid

balance of $3,049.19, together with contractual interest of 31.65% per

annum for one year beginning February 8, 2024, and 18% thereafter. The

petition also prayed for late charges, court costs, collection costs, and

contractual attorney fees. Tower Loan attached an affidavit of lost note,

executed by Anthony Barnes, an officer of the company, certifying that the

document (apparently the disclosure statement) was a true and correct copy

of the original, which has been lost.

Atkins filed no responsive pleading, so Tower Loan moved for default

judgment. It attached an affidavit of correctness executed by Charlie

Hawkins, an officer of the company, verifying that the balance due was $3,049.19 and that the interest rate, under the disclosure statement, was

31.65% per annum for one year beginning February 8, 2024, and 18%

thereafter until paid in full. Tower Loan also provided a proposed judgment

stating this balance due, interest rate, and other matters not pertinent to this

appeal.

On July 15, 2024, the only minute entry in the record, the district

court “reviewed record and amended judgment amount.” In the transcript,

the court stated merely, “Okay, I’ve signed the judgment and returning [sic]

the same to the Clerk.” The court drew a line through the principal of the

judgment, changing it from $3,049.19 to $2,503.93, and through the interest

rate of 31.65%/18%, changing it to “legal” interest.

Tower Loan has appealed, raising five assignments of error. Atkins

has not filed a brief.

DISCUSSION

Compliance with Art. 1702

By its first assignment of error, Tower Loan urges the court erred in

failing to accept Tower Loan’s affidavit of correctness, submitted in support

of the proposed judgment, as prima facie proof of the indebtedness owed

under the promissory note, as required by La. C.C.P. art. 1702(B)(3). By its

second assignment, Tower Loan urges the court erred in failing either to sign

the proposed judgment or direct that a hearing be held, as required by La.

C.C.P. art. 1702(C).

For the reasons expressed in First Tower Loan v. Combs, 45,236 (La.

App. 2 Cir. 5/21/25), rendered this day, these assignments have merit. The

district court lacked authority to disregard the affidavit of correctness and

erred in not signing the proposed judgment. 2 Reduction of Principal

By its third assignment of error, Tower Loan urges the court erred in

reducing the principal amount of the judgment from the amount prayed for

and properly rebated in accordance with La. R.S. 9:3533, to the amount

financed on the face of the promissory note. For the reasons expressed in

First Tower Loan v. Combs, supra, this assignment has merit.

The disclosure statement reflects a finance charge of $646.07. Total

payments would come to $3,150.00; according to the affidavit, no payments

were ever made, resulting in a balance of $3,049.19. There is no further

requirement for an itemization of payments or how the amount sued upon

was calculated. Moore Fin. Co. v. Ebarb, 46,392 (La. App. 2 Cir. 5/18/11),

70 So. 3d 856. The district court lacked authority to render judgment for a

principal amount other than $3,049.19. The judgment will be amended to

this amount.

Award of Interest

By its fourth assignment of error, Tower Loan urges the court erred in

failing to award interest as prayed for and as mandated by La. C.C. art. 1921.

By its fifth assignment, Tower Loan urges the court erred in reducing the

interest in the judgment to “legal interest” from the amount stated in the

promissory note, contrary to La. R.S. 9:3519 and 9:3522. For the reasons

expressed in First Tower Loan v. Combs, supra, these assignments have

merit.

The disclosure statement states the amount financed was $2,503.93.

Under La. R.S. 9:3519, Tower Loan could charge 27% on the portion of the

principal that exceeds $1,400 but does not exceed $4,000 (this portion would

be $1,103.93) and 36% on the remaining portion ($1,400). The affidavit 3 states that these rates, properly apportioned, yield a contractual rate of

31.65%. Moreover, Atkins’s loan was accelerated on February 8, 2024;

hence, after February 8, 2025, the interest cannot exceed 18%. The amount

prayed for in the petition, and stated in the proposed judgment, complies

with the applicable laws.

The district court lacked authority to award interest different from that

stated in the loan agreement, the petition, and the affidavit. The judgment

will be amended to provide the contractual and legal rate.

CONCLUSION

For the reasons expressed, the principal and interest stated in the

judgment are amended as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff, FIRST TOWER LOAN, LLC, d/b/a TOWER LOAN OF WINNFIELD, and against the defendant, AD ATKINS, a/k/a A D ATKINS III (SSN XXX-XX-6012), in the amount of $3,049.19, together with interest thereon at the rate of 31.65% per annum for one year beginning February 8, 2024, and 18% thereafter.

In all other respects, the judgment is affirmed. All costs are to be paid

by the borrower, Ad Adkins, a/k/a A.D. Adkins III.

AMENDED, AFFIRMED AS AMENDED, AND RENDERED.