James v. Orange Savings & Loan Ass'n

195 So. 2d 183, 1967 La. App. LEXIS 5775
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1967
DocketNo. 6900
StatusPublished
Cited by2 cases

This text of 195 So. 2d 183 (James v. Orange Savings & Loan Ass'n) 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
James v. Orange Savings & Loan Ass'n, 195 So. 2d 183, 1967 La. App. LEXIS 5775 (La. Ct. App. 1967).

Opinion

LANDRY, Judge.

Defendant, Orange Savings & Loan Association (Orange), a homestead building and loan association domiciled in Orange-County, Texas, has taken this appeal from a permanent injunction issued by the trial court upon relation of A. Clayton James, State Bank Commissioner (Commissioner). The injunction restrains and prohibits appellant from conducting business on the building and loan association plan or any part thereof in the State of Louisiana; making, granting or extending loans of money in the State of Louisiana secured by mortgage on immovable property situated in the state; soliciting and receiving state deposits, demand accounts or any other monies other than upon a fully mutual share basis; and from using in the State of Louisiana the words “savings and loan” in its corporate title. We find the injunction was improvidently issued and must therefore be recalled and set aside. We also find that the activities engaged in by Orange within the State of Louisiana are now in violation of the provisions of LSA-R.S. 6:773 as amended and re-enacted by Act 401 of 1966.

The League of Louisiana Savings and Loan Associations, Inc. intervened in this action asserting contentions identical to-those of the Commissioner.

For all practical purposes the facts and' circumstances attending the present litigation are undisputed. Narration thereof in some detail is essential to a proper understanding of the questions to be decided on. this appeal.

[185]*185Since July 28, 1964, appellant has engaged in this state in the business of making direct mortgage loans on real property situated ■within the state. Said activity has been conducted by appellant upon authority of a •certificate issued on the aforesaid date by the Honorable Wade O. Martin, Jr., Secretary of State, State of Louisiana, pursuant "to the provisions of Act 443 of 1952. In substance Act 443 of 1952 provides that foreign corporations may qualify to do business within the state for the sole purpose ■of making mortgage loans or purchasing and owning notes secured by mortgages on property within this state upon furnishing ■certain information and paying the taxes and fees therein required. Appellant acknowledges that since its aforesaid authorization it has engaged in the business of ■soliciting deposits, mortgage loans secured by the pledge of immovable property within the state and the purchase of mortgage loans in Louisiana by means of radio and newspaper advertising. Appellant concedes its ■said certificate of authorization does not permit solicitation or receipt of monies or ■demand deposits from Louisiana citizens within the state and shows that it has never maintained either an office or any personnel in this state for such purpose. Orange admits, however, it has received deposits from Louisiana citizens at its offices in the State ■of Texas. It also appears that while Orange has made numerous direct loans secured by mortgage on real property located within Louisiana, the only personnel engaged by appellant in the state is employed for the purposes of appraisal and inspection of properties and the servicing of loans. Several copies of mortgages obtained by appellant appear in the record and reflect that whereas they contain the usual security clauses found in the ordinary conventional mortgage, they omit the special provisions, such as sale and resale, customarily found in mortgages taken by building and loan associations.

Commissioner contends, nevertheless, the certificate of authority issued by the Secretary of State pursuant to Act 443 of 1952 is invalid because said statute has no application to building and loan associations. In short, Commissioner argues further that a building and loan association, foreign or domestic, may not engage in any business activity whatsoever in the State of Louisiana, without first complying with the provisions of the Louisiana “Building and Loan Association Law”, LSA-R.S. 6:721 et seq. In this regard Commissioner relies upon R.S. 6:773, which provides that foreign building and loan associations shall be permitted to conduct their business in this state only upon compliance with the statute which requires a certificate of convenience and necessity from Commissioner. It appears Orange previously made application to Commissioner for the certificate required under the aforesaid Building' and Loan Law but same was denied for lack of necessity. Alternatively Commissioner initially argued Act 443 of 1952 was repealed by Act 386 of 1960, consequently, even if the former statute applied to building and loan associations, the law is no longer in effect and the certificate granted thereunder is null and void. Finally, in a supplemental brief filed subsequent to the effective date of Act 401 of 1966, Commissioner asserts the whole matter has been rendered moot by said Act 401 of 1966 which amends and re-enacts LSA-R.S. 6:773 and provides that foreign building and loan associations may not solicit or make direct mortgage loans in this state without first obtaining a certificate from the Commissioner.

Appellant admits it does not have a certificate from the Commissioner to solicit and make direct mortgage loans on property situated within the state. It is appellant’s position that Act 443 of 1952 applies to all foreign corporations, including building and loan associations; that it was not repealed by Act 386 of 1960, as contended by appellee; that the certificate it holds from the Secretary of State thereunder is valid and authorizes the activities in which appellant is engaged in this state; and that Act 401 of 1966 does not require that appellant secure a certificate from the Com[186]*186missioner to engage in the solicitation of and making of direct mortgage loans in this state. In effect appellant contends the Building and Loan Law, LSA-R.S. 6:721 et seq. applies only to building and loan associations acting as such and carrying on a complete operation embracing all phases of such an institution including the making of loans and receipt of deposits. Appellant maintains its limited operation does not subject it to the requirement of complying with LSA-R.S. 6:721 et seq., since it is not operating as a building and loan association but only as a mortgage company, which activity is fully authorized by the certificate issued appellant by the Secretary of State pursuant to Act 443 of 1952. Orange also argues that it applied for the certificate from the Commissioner not through necessity but solely to attain the business advantages flowing from the right to use the special security devices which are available to building and loan associations but not enjoyed by financial institutions in general. Defendant contends its present certificate permits it to operate as a mortgage company, solicit and accept direct loans and use the words savings and loan in its corporate title. Appellant concedes the certificate it holds does not permit its operation on the building and loan plan and that it is not contending it has such authority.

The pertinent provision of Act 443 of 1952, upon which appellant relies, reads as follows:

“[Fjoreign corporations, including, without limitation, banks, investment and pension trusts, and mortgage and insurance companies, may qualify to do business in the State of Louisiana for the sole purpose of making mortgage loans or purchasing and owning notes secured by mortgages on Louisiana property by filing with the Secretary of State * *.” (Emphasis by the court.)

The foregoing statutory provision is followed by a list of requirements which include the payment of a stipulated fee.

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Green v. Louisiana Underwriters Ins. Co.
571 So. 2d 610 (Supreme Court of Louisiana, 1990)
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212 So. 2d 177 (Louisiana Court of Appeal, 1968)

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Bluebook (online)
195 So. 2d 183, 1967 La. App. LEXIS 5775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-orange-savings-loan-assn-lactapp-1967.