Keating v. First National Bank of Jefferson

65 B.R. 191, 1986 U.S. Dist. LEXIS 20132
CourtDistrict Court, E.D. Louisiana
DecidedSeptember 19, 1986
DocketCiv. A. No. 85-4884
StatusPublished

This text of 65 B.R. 191 (Keating v. First National Bank of Jefferson) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keating v. First National Bank of Jefferson, 65 B.R. 191, 1986 U.S. Dist. LEXIS 20132 (E.D. La. 1986).

Opinion

MEMORANDUM OPINION

MENTZ, District Judge.

This case comes before the Court on appeal from the Bankruptcy Court of the Eastern District of Louisiana. The debtors, Danny and Bettie Keating (“the Keat-ings”), as well as Keating Air Conditioning, Inc. (“Keating AC”) filed for bankruptcy [192]*192under Chapter 11 of the Bankruptcy Code. Subsequently, the debtors challenged the validity of the collateral mortgage sought to be enforced by the First National Bank of Jefferson Parish (“FNJ”). The Bankruptcy Court determined that the security interest held by FNJ was invalid, and that the claim of FNJ was unsecured. After reviewing the memoranda, and considering the oral arguments of counsel, the Court AFFIRMS the Bankruptcy Court’s ruling. However, it does so for different reasons. The issue to be decided is whether FNJ’s loan to Keating AC is secured by a valid collateral mortgage.

FACTS

On September 22, 1980, Keating AC attempted to effect a collateral mortgage with the Continental Bank (now FNJ). In connection with this loan, the following five relevant documents were executed:

1. A collateral mortgage by Keating AC, in favor of the Continental Bank (now FNJ), on five pieces of real estate (“the collateral mortgage”, P.Ex. 3). The collateral mortgage was signed by 1) Danny P. .Keating as president of Keating AC; 2) the Continental Bank; 3) Robert G. Creely, Notary Public; and 4) two witnesses. The five pieces of property were not owned by Keating AC, rather they were owned by the Keatings in their individual capacity.

2. A collateral mortgage note (P.Ex. 4) in the amount of $500,000.00, payable to bearer, with Keating Air Conditioning as maker. The face of the note contains the following language:

“NE VARIETUR” For identification with -an act of COLLATERAL MORTGAGE and COLLATERAL CHATTEL MORTGAGE executed before me this 22nd day of September, 1980, [signed], Robert G. Creely, Notary Public.

The reverse side of the collateral mortgage note contains the signatures of Danny P. Keating and Bettie Evans Keating, and identifies their signatures as being made in an individual capacity. Below their signatures, the following language appears:

NE VARIETUR To identify with an Act of Correction Passed before me this 15th day of October, 1980, [signed], Robert G. Creely, Notary Public.

3. A hand note for $330,000.00 (P.Ex. 5), payable to the order of Continental Bank, with Keating AC, Danny P. Keating and Bettie Evans Keating, individually, as the maker.

4. A “Collateral Pledge Agreement” (P.Ex. 7) executed by Keating AC, and accepted by the Continental Bank, containing the following notation:

Secured by the pledge of one (1) certain demand collateral mortgage and collateral chattel mortgage note dated September 22,1980 in the amount of $500,000.00 payable to “Bearer,” executed by Keat-ing Air Conditioning, Inc. paraphed “Ne Varietur” to identify with an act of mortgage passed before Robert G. Creely, Notary Public, on September 22, 1980 in the face amount of $500,000.00.

5. A “Small Business Administration (SBA) Guaranty” (D.Ex. 4) in favor of the Continental Bank for the debts of Bettie Evans Keating and Danny P. Keating. The collateral securing the guaranty included four of the five pieces of property referred to in the collateral mortgage, but not the property located on Stumpf Boulevard, where Keating AC is located.

When FNJ subsequently realized that the property which was the subject of the collateral mortgage was owned by the Keatings individually, FNJ attempted to correct the problem. Thus, on October 15, 1980, an “Act of Correction” (P.Ex. 8) was executed by Keating AC, the Keatings, and the Continental Bank. The Act of Correction stated:

That an error was committed in preparing the aforesaid collateral mortgage in that KEATING AIR CONDITIONING, INC., was identified as the mortgagor when as a matter of fact, the mortgagor should have been BETTIE EVANS, wife of/and DANNY P. KEATING.
That in view of the foregoing and for the same consideration originally recited, the parties have agreed to reform and cor[193]*193rect1 the collateral mortgage executed on September 22,1980, to reflect the true owners and mortgagors as BETTIE EVANS, wife of/and DANNY P. KEATING of the following described property, to-wit ...

The effect of the various documents is that on September 22, 1980, FNJ’s notary public erroneously executed a collateral mortgage with Keating AC, on property owned individually by the Keatings. Thereafter, FNJ attempted to correct the problem by executing the above mentioned Act of Correction.

In 1983, Keating AC was unable to maintain the mortgage loan payments. Foreclosure proceedings, via executory process, were instituted in Louisiana state court by FNJ. Thereafter, Keating AC, and the Keatings filed for bankruptcy protection.

ANALYSIS

The Bankruptcy Court found that the security interest held by FNJ was invalid. First, since the security provided to FNJ was not owned by Keating AC, the requisites of Louisiana Civil Code art. 3300 were not met.2 Additionally, the Bankruptcy Court found that FNJ did not carry the burden of proving by clear and convincing evidence that the Act of Correction reformed the original mortgage, so as to provide for a valid mortgage. Finally, the Bankruptcy Court determined that the Keatings could not be considered to have ratified the acts of Keating AC, since such a finding would require a piercing of the corporate veil, and ignoring the evidence of a valid corporate entity.

This Court agrees that the security interest of FNJ is invalid. However, the security is invalid because FNJ failed to obtain a valid pledge agreement from the Keatings which properly pledged their individual assets for the debts of Keating AC.

FNJ concedes that the collateral mortgage is invalid, but argues that the collateral mortgage should be read in conjunction with the Act of Correction, and that together the two documents constitute a valid mortgage.

The Keatings assert that the security interest is invalid for numerous reasons (although fraud is not alleged), as follows:

(1) the Act of Correction was not signed before a notary public;

(2) the Act of Correction was not signed before any witnesses;

(3) the language in the Act of Correction is ambiguous;

(4) the Act of Correction does not contain a phrase paraphing the Act of Correction with the hand note;

(5) the Keatings intended to mortgage only one piece of property, the Stumpf property;

(6) FNJ attempted to add new parties to the Act of Correction; and

(7) FNJ failed to obtain a proper pledge from the Keatings.

The Court finds that no valid mortgage exists, even if the collateral mortgage and Act of Correction are read together, since the collateral mortgage was not properly pledged by the Keatings to secure the hand note. Thus, it is not necessary to rule upon the other alleged defects with FNJ’s security interest.

In First Guaranty Bank v. Alford, 366 So.2d 1299, 1302 (La.1978), the Louisiana Supreme Court outlined the requirements of a collateral mortgage, as follows:

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Related

First Guaranty Bank v. Alford
366 So. 2d 1299 (Supreme Court of Louisiana, 1978)
Durham v. First Guaranty Bank of Hammond
331 So. 2d 563 (Louisiana Court of Appeal, 1976)
Thrift Funds Canal, Inc. v. Foy
260 So. 2d 628 (Supreme Court of Louisiana, 1972)

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Bluebook (online)
65 B.R. 191, 1986 U.S. Dist. LEXIS 20132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keating-v-first-national-bank-of-jefferson-laed-1986.