Holmes v. Peoples State Bank of Many

753 So. 2d 1006, 2000 La. App. LEXIS 369, 2000 WL 235511
CourtLouisiana Court of Appeal
DecidedMarch 3, 2000
DocketNo. 32,749-CA
StatusPublished
Cited by7 cases

This text of 753 So. 2d 1006 (Holmes v. Peoples State Bank of Many) 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
Holmes v. Peoples State Bank of Many, 753 So. 2d 1006, 2000 La. App. LEXIS 369, 2000 WL 235511 (La. Ct. App. 2000).

Opinion

h STEWART, J.

Peoples State Bank of Many (“Peoples”) appeals the issuance of a preliminary injunction restraining it from allowing any third person to purchase or use certain property obtained by it through a sheriffs sale. Peoples also assigns as error the wrongful issuance of a temporary restraining order and the failure of the trial court to grant its request for an injunction and writ of mandamus directing removal of notices of lis pendens filed by the plaintiff, Patricia Lattier Holmes, and her boyfriend, Larry Reed. For the reasons discussed below, we reverse the trial court’s judgment, vacate the preliminary injunction, and remand the matter for further proceedings on the merits of Holmes’ claim.

FACTS

In August 1996, Holmes began construction of a home on a lakefront lot in Caddo Parish, Louisiana. Reed acted as contractor for the building project. Holmes entered into an interim financing agreement with Peoples and executed a note, secured by a mortgage on the property, in the [1008]*1008amount of $294,000. Peoples also required Holmes to execute a performance bond in the amount of $295,000. As of December 1997, construction of the home was not complete even though all of the loan proceeds had been disbursed to Holmes. Holmes borrowed an additional $25,000 from Peoples. This second loan was also secured by a mortgage.

After disbursal of the funds from the second loan, Peoples learned that over $50,000 in worker and materialman liens had been filed. Peoples also believed that Holmes had failed to pay property taxes and maintain insurance on the property. Efforts to resolve these problems and complete construction included the discussion of another loan; however, Peoples insisted on certain conditions for additional financing, such as requiring Holmes to obtain the services of a licensed | ggeneral contractor and end Reed’s involvement in the project. Holmes apparently refused the proposed terms, and Peoples did not extend additional financing.

By way of a letter dated March 3, 1998, Peoples demanded payment of the outstanding balances on the loans made to Holmes. Peoples then filed a petition for executory process on March 26, 1998 to seize and sell the property. On March 30, 1998, the trial court ordered the issuance of a writ of seizure and sale. Holmes responded to Peoples’ actions by filing a formal complaint about Peoples to the FDIC, alleging racial discrimination. Holmes also filed the instant suit for damages against Peoples on April 1, 1998, alleging that Peoples’ actions constituted a violation of both the Louisiana Equal Credit Opportunity Act, La. R.S. 9:3581 et seq., and 15 U.S.C. § 1691. Holmes later amended her petition to drop the federal law claim. This appeal arises from proceedings in Holmes’ suit against Peoples.

In the meantime, Holmes attempted to stop the sheriffs sale of the seized property by filing a petition for arrest of seizure and sale in which she alleged that Peoples had failed to comply with the authentic evidence requirements for executory proceedings. The trial court denied relief. Holmes applied for supervisory review, which was denied by this court on May 28, 1998 in No.31421-CW and by the supreme court on June 6, 1998 in No. 98-CC-1448. Holmes also filed for Chapter 13 bankruptcy in an effort to stop the sale of the seized property. However, Peoples successfully overturned the stay as to the sale of the property, and in September 1998, Holmes dismissed her bankruptcy action.

On October 23, 1998, Peoples answered Holmes’ petition for damages and asserted a reconventional demand for a money judgment on the amounts due on the outstanding loans. On October 28, 1998, Peoples was the high bidder at the sheriffs sale of the property. Holmes then amended her petition for damages to allege that Peoples improperly converted the executo-ry process to an ordinary paction by filing the reconventional demand for a money judgment. In the amended petition, Holmes alleged that the sheriffs sale was improperly conducted and prayed that either the sheriffs sale be declared a nullity or that damages be awarded.

On January 27, 1999, as Peoples began efforts to sell the property to a third party, Holmes filed an application in the instant proceedings for a preliminary injunction under La. C.C.P. arts. 2752, 2753, and 3602 to stop the sale. In the application, Holmes referred to the pending litigation for damages or nullity of the sheriffs sale and to findings by the FDIC of violations by Peoples of consumer protection laws, including a truth-in-lending violation involving misrepresentation of finance charges. Peoples responded by filing its own application for injunctive relief and for issuance of a writ of mandamus to obtain cancellation of notices of lis pendens filed by Holmes and Reed in the conveyance and mortgage records of Caddo Parish and to prevent further filings affecting the property. Thereafter, on February 8, 1999, Peoples filed an opposition to Holmes’ petition for preliminary injunction [1009]*1009and sought dissolution of a temporary restraining order granted by the trial court in response to Holmes’ application for a preliminary injunction. Peoples alleged that the temporary restraining order, which suspended the sale of the property pending a hearing on Holmes’ application for a preliminary injunction, was issued without prior notice, security, or a showing of irreparable harm. Peoples also alleged that Holmes mistakenly relied upon La. C.C.P. arts. 2752 and 2753 in seeking in-junctive relief as those articles pertain only to enjoining seizure and sale of property through executory process. Peoples also filed a supplemental petition for in-junctive relief and writ of mandamus seeking an order directing removal of a worker and materialman lien filed by Reed against Peoples.

The pending motions for injunctive relief were heard on February 16,1999, at which time Holmes, Reed, and Dale Hopper on behalf of Peoples testified. The Ltrial court rendered a judgment on March 9, 1999, in favor of Holmes, finding that Peoples acted in bad faith towards her and that she was in danger of receiving irreparable harm for which an award of damages would not suffice. As such, the trial court issued a preliminary injunction enjoining Peoples “from allowing any third person or entity to purchase or use the property located at 2018 N. Cross Blvd., Shreveport, Louisiana, in violation of the contract with Patricia Lattier Holmes.” The trial court also provided an “Amended Judgment” which granted the same relief but with additional findings regarding alleged violations by Peoples as determined by the FDIC.

Peoples filed for both supervisory and appellate review of the trial court’s adverse judgment. On supervisory review, we determined that the “Amended Judgment” was not substantive because the trial court’s disposition remained the same. We denied Peoples’ request for dissolution of the preliminary injunction with the caveat that our ruling would not be construed as a finding under La. C.C.P. art. 3608 that injunctive relief was appropriate. We also ruled that the notices of lis pen-dens were not disturbances in law under La. C.C.P. art. 3659 so long as the action for nullity is pending. Lastly, we granted Peoples’ request for relief from the filing of a lien by Reed and ordered a hearing to show cause why the lien should not be canceled.

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753 So. 2d 1006, 2000 La. App. LEXIS 369, 2000 WL 235511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-peoples-state-bank-of-many-lactapp-2000.