Pelican Homestead & Savings Ass'n v. Elms

617 So. 2d 983, 1993 La. App. LEXIS 1460, 1993 WL 114573
CourtLouisiana Court of Appeal
DecidedApril 15, 1993
DocketNo. 91-CA-2716
StatusPublished

This text of 617 So. 2d 983 (Pelican Homestead & Savings Ass'n v. Elms) 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
Pelican Homestead & Savings Ass'n v. Elms, 617 So. 2d 983, 1993 La. App. LEXIS 1460, 1993 WL 114573 (La. Ct. App. 1993).

Opinions

ARMSTRONG, Judge.

In this foreclosure proceeding defendants, Regina Elms Keever, The Michael Elms Mauberret — John J. Elms Sr. Testamentary Trust, and The Andrea B. Mauber-ret Trust — C (collectively referred to as “the Keevers”) appeal a default judgment entered against them and in favor of Pelican Homestead and Savings Association (“Pelican”).1 For the reasons that follow, we affirm the judgment of the trial court.

On December 31, 1985, Gretchen Kuntz, wife of/and John J. Elms Jr. (“the Elms”), who are also named as defendants in this action, borrowed $2,124,594.75 from Gulf Federal Savings Bank (“Gulf Federal”), as evidenced by a promissory note made payable to the order of Gulf Federal. The note was secured by the pledge of a $4,000,-000.00 collateral mortgage note executed by the Elms and the Keevers in favor of Gulf Federal. The collateral mortgage note was itself secured by an act of collateral mortgage, which encumbers certain immovable property now owned by R. Keever Realty, Inc. However, at the time [984]*984of the execution of the mortgage, the property at issue was owned in indivisión by the Elms and the Keevers.

The promissory note became due and the Elms subsequently filed for bankruptcy. On June 28, 1990, Pelican, as successor in interest to Gulf Federal and holder and owner of the promissory note, filed suit on the note seeking to foreclose the collateral mortgage on the Keevers’ property, in preference to property owned by the primary obligors, the Elms.2 In response thereto, the Keevers filed exceptions of prematurity and lack of discussion which were overruled by the trial court on June 21, 1991.3 On June 26, 1991, the Keevers filed notice of intent to apply for supervisory writs and were granted thirty days in which to do so by the trial court.4 On July 2, 1991, Pelican obtained a preliminary default against the Keevers after the Keev-ers failed to file an answer. Pelican confirmed the preliminary default on July 9, 1991 and obtained a judgment against the Keevers. On July 22, 1991, the Keevers filed a motion for a new trial which was denied by the trial court. This appeal was subsequently taken.

On appeal, the Keevers claim the trial court erred in granting the default judgment because the trial court had orally granted them an additional thirty days in which to file responsive pleadings while they applied for writs to this court relating to the trial court’s overruling of the exceptions. In addition, the Keevers claim the trial court erred in overruling their exceptions of prematurity and lack of discussion.

PREMATURITY

The Keevers claim that when the trial court granted them an additional thirty days in which to seek writs from this court on the trial court’s denial of the dilatory exceptions of prematurity and lack of discussion, it also granted them an additional thirty days in which to file responsive pleadings. The Keevers maintain that the thirty-day period had not elapsed at the time the default judgment was rendered and, therefore, that the default judgment was granted prematurely.

La.C.C.P. art. 1001 states the general rule as to the time in which an answer must be filed after a judgment overruling an exception. It provides:

When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition. The court may grant additional time for answering.

The record furnishes no evidence that the trial court granted the Keevers additional time in which to file responsive pleadings after denying the exceptions and granting them additional time in which to seek writs. The RTC points out that if the trial court had indeed granted such additional time to the Keevers, it would have granted the Keevers’ motion for new trial filed after the default judgment had been granted. The trial court denied the motion for new trial.

It is absolutely essential that an answer be filed prior to confirmation of a preliminary default in order to set aside and render invalid a default judgment. American Bank & Trust Co. of Lafayette v. Huval Fin., 460 So.2d 91 (La.App. 3rd Cir.1984), citing American Bank & Trust Co. v. Marbane Investments, Inc., 337 So.2d 1209 (La.App. 3rd Cir.1976).

Considering the record evidence, we are unable to say that the trial court erred in granting a preliminary default, confirming [985]*985the default and rendering judgment in favor of Pelican.

DISCUSSION

Both the collateral mortgage note and the act of collateral mortgage securing it were signed by Gretchen Elms, John Elms and Regina Keever in their individual capacities, and on behalf of the Michael Elms Mauberret — John J. Elms Sr. Testamentary Trust. Regina Keever signed the mortgage note with the Elms as a principal and solidary obligor. The collateral mortgage note stated in pertinent part:

Every person at any time liable for the payment of the debt evidenced hereby waives any homestead or exemption rights against said debt. The makers of this note and the endorsers, guarantors and sureties hereon hereby severally waive presentment for payment, protest, and all pleas of division and discussion, and agrees that the time of payment, hereof may be extended from time to time one or more times, without notice of such extension or extensions and as original promissors, for the payment here in principal, interest, costs and attorney’s fees. (Emphasis added).

Thus, the clear unambiguous language of the note evidences that Regina Keever waived the right of discussion. That is, she waived her right to demand that the creditor proceed against the Elms’ property before proceeding against the Keevers’ property in the event of a default on the obligation.5

Controverting the clear unambiguous language of the collateral mortgage note, the Keevers maintain that an oral agreement existed between Regina Keever and John Mmahat, the former president of Gulf Federal, which altered the terms of the loan documents and effectively preserved the right of discussion in the event of default on the loan. The Keevers produced the sworn affidavit of Regina Keever in which she recited that in order to induce her to mortgage her property as security for the obligations of the Elms, Mmahat “represented to her” that the property of the Elms would be seized and sold before and in preference to hers. The affidavit further recites that in reliance on Mma-hat’s promises, Regina Keever provided security for the obligations of the Elms in the form of a mortgage of her real property in favor of Gulf Federal.

Assuming arguendo, that an oral agreement was discussed, Pelican correctly points out the fact that such an agreement could not be asserted against them. In the United States Supreme Court case of D’Oench, Duhme & Company, Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1941), the Court held that a defendant would not be allowed to assert a defense to a claim by the FDIC that a written agreement which is valid on its face, is modified by an undisclosed secret agreement.

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617 So. 2d 983, 1993 La. App. LEXIS 1460, 1993 WL 114573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelican-homestead-savings-assn-v-elms-lactapp-1993.