Louisiana Ass'n for the Blind v. Robertson

552 So. 2d 580, 1989 La. App. LEXIS 2056, 1989 WL 134325
CourtLouisiana Court of Appeal
DecidedNovember 1, 1989
DocketNo. 20891-CA
StatusPublished
Cited by3 cases

This text of 552 So. 2d 580 (Louisiana Ass'n for the Blind v. Robertson) 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
Louisiana Ass'n for the Blind v. Robertson, 552 So. 2d 580, 1989 La. App. LEXIS 2056, 1989 WL 134325 (La. Ct. App. 1989).

Opinion

LINDSAY, Judge.

In this suit for deficiency judgment, the defendants, Clayton DeWayne Robertson and Dee Ann Robertson, appeal a trial court judgment granting a motion for summary judgment in favor of the plaintiff, Louisiana Association for the Blind, Inc. We reverse and remand for further proceedings.

FACTS

On October 22, 1987, plaintiff filed suit for executory process, alleging that it was the holder and owner of a promissory note executed by the defendants on January 1, 1983 in the amount of $17,300. Plaintiff alleged that the the parties also executed a collateral pledge agreement in which a $25,000 collateral mortgage note and collateral mortgage on the defendant’s home had been pledged to secure the payment of the promissory note. The plaintiff asserted that the defendant ceased making payments on the primary obligation on September 16, 1985 and that a balance of $14,-110.19 was due and owing.

Upon filing the suit for executory process, an attorney-at-law was appointed to represent the defendants, who were then absentees from the state of Louisiana. At the same time, a writ of seizure and sale was issued, directing that the mortgaged property be seized and sold, with benefit of appraisal. Pursuant to the writ, the property was seized and advertised for sale. The sheriff’s sale was scheduled for January 13, 1988. The plaintiff and the defendants were duly notified to appoint appraisers, who were to submit appraisals by December 11, 1987. Neither the plaintiff nor the defendants appointed appraisers. Accordingly, the sheriff appointed two appraisers to assess the value of the property. The property was appraised on January 12,1988 for $65,000. The property was sold to the plaintiff on January 13, 1988, for $50,500. The proces verbal of the sheriff’s sale shows that the sale was made subject to two prior recorded mortgages, the balance of both totaling $48,140.52. The plaintiff alleges that the balance due on the first mortgage was $36,811.09 and the balance due on the second mortgage was $11,329.43. Costs totaled $2,119.80.

As a result of the sheriff’s sale, and after deducting the amount allegedly owed on the two prior mortgages, the defendants were only credited with $239.68 on the writ, thereby remaining indebted to the plaintiff in the amount of $13,870.31. Accordingly, on February 23, 1988, the plaintiff filed suit for a deficiency judgment, claiming that the defendants owed a deficiency in the amount of $13,870.51, plus interest, costs and attorney fees.

On March 31, 1988, through retained counsel, the defendants answered the peti[582]*582tion for deficiency judgment, urging the affirmative defense of setoff. The defendants claimed they are entitled to credit for donations which they made to the plaintiff, which were made to reduce their debt. They also sought credit for amounts which plaintiff allegedly owed as bonuses to the defendant, DeWayne Robertson, a former employee of the plaintiff.

On October 24, 1988, the plaintiff filed a motion for summary judgment. Plaintiff claimed that, because the defendants had failed to raise affirmative defenses during the suit for executory process, those defenses had been waived and could not be raised in defense of the suit for deficiency judgment.

At the hearing on the motion for summary judgment, the trial court ruled that the defendants could not present evidence of setoff, holding that affirmative defenses had been waived by the failure of the defendants to assert those defenses in response to the suit for executory process.

After ruling that the defendants were precluded from offering evidence of affirmative defenses, the plaintiff filed in evidence, by reference, the entire record of the executory process suit, which included the sheriffs sale documents, as well as the original notes, pledge agreement and mortgage. In support of its claim for attorney’s fees, plaintiffs counsel also filed an affidavit showing the time which he spent on the case. No other affidavits, testimony, depositions, stipulations or evidence was adduced. At the conclusion of the hearing, the trial court granted the plaintiffs motion for summary judgment, ordering the defendants to pay $13,870.51 to the plaintiff, plus $2,000 in attorney fees.

The defendants, now proceeding pro se, appeal the trial court judgment.

WAIVER OF AFFIRMATIVE DEFENSES

The defendants argue that even though they failed to personally appear during the executory proceedings and failed to assert the affirmative defense of setoff, they are not now precluded from raising that defense in response to the plaintiffs suit for deficiency judgment.

The plaintiff argues that when the defendants failed to raise the defense of setoff prior to the sale of the property, the defense was waived.

LSA-C.C.P. Art. 2642 provides in pertinent part:

Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a sus-pensive appeal from the order directing the issuance of the writ of seizure and sale, or both.

In Ford Motor Credit Corporation v. Herron, 234 So.2d 517 (La.App. 3rd Cir.1970), it was held that in a suit for deficiency judgment, where the debtor did not appear in the executory process proceedings and assert the defense of payment through injunction or suspensive appeal, it must be presumed that the defendant waived or abandoned the defense of payment.

The plaintiff relies on Ford Motor Credit Corporation v. Herron, supra, in arguing that failure to raise defenses or defects in the executory proceeding bars the defendant from asserting any affirmative defenses in a subsequent suit for deficiency judgment.1

Ford Motor Credit v. Herron, supra, and the other cases cited upon by the plain[583]*583tiff, were all, in one form or another, cases in which a debtor was attacking the technical aspects of the executory proceedings. For example, in Ford Motor Credit, upon which plaintiff relies so heavily, the debtor did not allege that the debt was not owed, but claimed that the seizing creditor did not properly allege in the executory proceedings that the debt was due when the seizure was made. In its decision, the court was focusing on the technical aspects of the executory proceedings, the nature of the pleadings and the supporting documents, rather than considering a true affirmative defense of payment.

While Ford Motor Credit v. Herron, supra, does state that failure to raise a defense of payment in an executory proceeding bars assertion of the defense in a suit for deficiency judgment, the recent Louisiana Supreme Court case of First Guaranty Bank v. Baton Rouge Petroleum, 529 So.2d 834 (La.1987), holds to the contrary and supports the defendants’ argument that, in defense of a suit for deficiency judgment, affirmative defenses may be asserted.

In First Guaranty Bank, the court set forth the requirements for obtaining a deficiency judgment:

To obtain a deficiency judgment, the creditor first must affirmatively plead and prove the existence of the obligation giving rise to the debt, La.C.C. art. 1831, and the grounds of non-performance entitling him to maintain his judicial action. La.C.C. art. 1994.

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Bluebook (online)
552 So. 2d 580, 1989 La. App. LEXIS 2056, 1989 WL 134325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-assn-for-the-blind-v-robertson-lactapp-1989.