Lilly Lyd, L.L.C. v. Graham

167 So. 3d 829, 14 La.App. 5 Cir. 594, 2014 La. App. LEXIS 3074, 2014 WL 7499386
CourtLouisiana Court of Appeal
DecidedDecember 30, 2014
DocketNo. 14-CA-594
StatusPublished
Cited by4 cases

This text of 167 So. 3d 829 (Lilly Lyd, L.L.C. v. Graham) 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
Lilly Lyd, L.L.C. v. Graham, 167 So. 3d 829, 14 La.App. 5 Cir. 594, 2014 La. App. LEXIS 3074, 2014 WL 7499386 (La. Ct. App. 2014).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

laThis appeal stems from a suit on a promissory note arising out of a loan transaction between appellant, Lilly Lyd, L.L.C., and appellee, Cora Joyce Graham. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Appellee, Cora Joyce Graham, and her husband, Robert Mullins, who was deceased at the time of trial, were the owners of Humble Spirit International, Inc. (“HSI”), a non-profit corporation organized for the purpose of educational, religious, and counseling services. In January of 2005, HSI acquired property located at 1242 St. Roch Avenue in New Orleans, Louisiana (hereinafter, “the property”). The property was encumbered by a mortgage held in favor of Gulf Coast Bank & Trust Company in the amount of $50,000.00, in addition to other liens. Intending to clear the title and renovate the property for use as a multi-purpose center, HSI required funding and so contacted Michael Dazet, a loan broker who had previously assisted Ms. Graham and Mr. Mullins in refinancing | .-¡their home, to secure a loan for this purpose. Mr. Dazet, who was deceased at the time of trial, located a lender: appellant, Lilly Lyd. It was not disclosed to Ms. Graham or Mr. Mullins at the time that Lilly Lyd was in fact Mr. Dazet’s company.

Lydia Dazet, the member manager of Lilly Lyd and Mr. Dazet’s widow, explained that Lilly Lyd is a company that finds investment properties for investors and manages them for and on the investors’ behalf. Ms. Dazet explained that Lilly Lyd issues “hard money loans,” which she defined as a “high-risk loan in which investors put up funds as the bank for the loan.” Under this type of loan, Lilly Lyd acquires ownership of the property that secures the loan and the client maintains the option to buy back the property after the loan is paid off. In the event the loan is not paid off, Lilly Lyd, as owner, maintains the right to sell the property.

In the present case, this “hard money loan” was effected through the execution of three instruments on April 21, 2005: a promissory note, a “Sale with Assumption of Mortgage,” and an “Option to Purchase.”

First, the promissory note, the subject of the present proceedings, was signed by Ms. Graham in which, “for value received,” she promised to pay Lilly Lyd $128,750.00 at an annual interest rate of 12 percent with the entire balance of principal and interest becoming due and payable on April 21, 2006.1 Next, in the “Sale with Assumption of Mortgage,” executed by Mr. Mullins and Mr. Dazet, Lilly Lyd obtained ownership of the property and assumed the existing mortgage thereon. And lastly, in the “Option to Purchase,” also executed by Mr. Mullins and Mr. Daz-et, Lilly Lyd conveyed to HSI, until April 20, 2006, the exclusive option to purchase the property for the amount of the loan, $128,750.00. However, the “Option to Purchase” makes no reference to the promissory note executed by Ms. | ¿Graham and does not state that Ms. Graham’s obligation to pay the $128,750.00 pursuant to the promissory note would be relieved [831]*831upon HSI’s exercising its right to re-purchase the property for $128,750.00.

Ms. Graham testified that she first realized, within ten to fourteen days of the closing, that her husband, on behalf of HSI, had transferred ownership of the property to Lilly Lyd. HSI complained to Mr. Dazet, who agreed to transfer the property back. HSI then moved forward with the renovation on the assumption that the property would be transferred back and attempted to effectuate this transfer on three separate occasions to no avail. HSI ultimately never regained ownership of the property and Lilly Lyd sold it to a third party in 2011 for $70,000.00.

Ms. Graham testified that neither she, Mr. Mullins, nor HSI received any loan proceeds or a loan distribution sheet delineating for what purpose the funds were to be used or how they were to be spent. Although evidence introduced at trial reflects that Lilly Lyd disbursed six checks payable to HSI totaling $27,112.50 between May and August of 2005, Ms. Graham explained that HSI received these funds in its capacity as a general contractor for renovation work on the property, not as the lendee. Ms. Graham maintained that HSI never controlled any loan proceeds and never authorized any of Lilly Lyd’s payments of the mortgage, liens, property taxes, insurance premiums, or fees for a title exam and appraisals of the property. Ms. Graham further asserted that HSI received neither a copy of an insurance policy nor proof that a title exam or appraisals were actually conducted.

Ms. Graham explained that she made no payments on the promissory note because she “no longer owned the property.” She added: “Why would I pay something when Lilly Lyd was totally in control of all the funds? ... It was their property[.]” Consequently, on August 24, 2010, Lilly Lyd filed a petition seeking to enforce the promissory note and recover $128,750.00, plus 12 percent interest |fifrom April 21, 2005 until paid, attorney fees in the amount of 25 percent of the principal and interest due, and all costs of the proceedings. In its answer, HSI raised, among others, the affirmative defense of failure of consideration in accordance with La. C.C.P. art. 1005.2

Following a bench trial on March 10, 2014, the trial court, rendered judgment on April 4, 2014, dismissing with prejudice Lilly Lyd’s claims against Ms. Graham and awarding Ms. Graham court costs. The court found the promissory note was “not enforceable due to the lack of cause and consideration.” The court explained that because “Lilly Lyd acquired ownership of the property and retained control over the loan proceeds, ... Ms. Graham received no consideration in return for her execution of the promissory note.” Lilly Lyd appeals from this judgment.

DISCUSSION

On appeal, Lilly Lyd argues that the trial court erred in concluding that Ms. Graham received no consideration for her execution of the promissory note. Lilly Lyd claims that the note was given for consideration in the form of the six checks issued directly to HSI as well as Lilly Lyd’s funding of repairs to the property.

In a suit on a promissory note, the payee who produces the note sued upon makes out a prima facie case and will be given the presumption that the instrument was given for value received unless the maker casts doubt upon the reality of the [832]*832consideration. Graves v. Porterfield, 555 So.2d 595, 598 (La.App. 1 Cir.1989). Once the maker casts doubt upon the consideration, the ultimate burden shifts to the payee to prove consideration by a preponderance of the evidence. Id.

In the instant case, Lilly Lyd introduced into evidence a copy of the promissory note signed by “Cora Joyce Graham,” which Ms. Graham did not deny | fiwas her signature. Accordingly, the note was presumed to have been given for consideration and the burden shifted to Ms. Graham to rebut this presumption. The trial court determined this presumption was rebutted by evidence demonstrating that Lilly Lyd acquired ownership of the property and that HSI never received any of the loan proceeds while Lilly Lyd retained exclusive control over them.

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Bluebook (online)
167 So. 3d 829, 14 La.App. 5 Cir. 594, 2014 La. App. LEXIS 3074, 2014 WL 7499386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lilly-lyd-llc-v-graham-lactapp-2014.