People's Homestead Federal Bank v. Laing

569 So. 2d 271, 1990 WL 166882
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
Docket21837-CA
StatusPublished
Cited by8 cases

This text of 569 So. 2d 271 (People's Homestead Federal Bank v. Laing) 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
People's Homestead Federal Bank v. Laing, 569 So. 2d 271, 1990 WL 166882 (La. Ct. App. 1990).

Opinion

569 So.2d 271 (1990)

PEOPLE'S HOMESTEAD FEDERAL BANK FOR SAVINGS, Plaintiff-Appellee,
v.
Fred O. LAING, Jr. Individually and d/b/a Laing Farms, Defendant-Appellant.

No. 21837-CA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 1990.

*272 Jones & Johnson by Richard L. Fewell, Jr., Monroe, for defendant-appellant.

Snellings, Breard, Sartor, Inabnett & Trascher by Charles C. Trascher, III, Monroe, for plaintiff-appellee.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

LINDSAY, Judge.

The defendant, Fred O. Laing, Sr., individually and d/b/a Laing Farms, appeals from a summary judgment granted by the trial court in this suit on a promissory note. For the reasons assigned below, we reverse.

FACTS

On November 16, 1988, People's Homestead Federal Bank for Savings filed suit against Mr. Laing, individually and d/b/a Laing Farms. The suit was brought on a promissory note dated March 1, 1987, in the original principal amount of $53,874.40. The terms of the note provided for a principal payment of $26,937.20 on December 31, 1987, and the balance on December 31, 1988, with interest payable quarterly beginning June 1, 1987. Interest was payable on *273 the unpaid principal amount at the rate of 3.00% over the Chase Manhattan Prime, with a minimum rate of 10.50% per annum from the date of the note, until paid. This hand note was secured by a collateral mortgage note dated May 28, 1985. The collateral mortgage note was payable to bearer and was due on demand. It had been executed by Mr. Laing and several family members in the principal amount of $300,000, with interest at the rate of 12% per annum from date until paid, with attorney fees of 25%.

The petition also asserted that the collateral mortgage note was paraphed with an authentic act of collateral mortgage covering immovable property in Morehouse parish. The petition further asserted that there was additional security as specified on the hand note, including several collateral pledge agreements executed by various members of the Laing family. The bank asserted that the hand note was delinquent in that the defendant had failed to make the principal payment due December 31, 1987, or the quarterly interest payment due June 1, 1987. The bank asserted that it had made demand for payment upon the defendant without avail, and that it was seeking to reserve its rights under the collateral security agreements.

The defendant filed his answer on May 22, 1989. He raised several affirmative defenses. Insofar as pertinent here, the defendant asserted that the promissory note, which he executed on March 1, 1987, was based on the promise of the bank's representatives that it would finance the Laing family farm for two years. However, once the note was signed, the bank refused to make the crop loan. The defendant asserted that because of the bank's misrepresentation, the obligation was extinguished and the defendant was released from liability. Alternatively, if the debt was found to be due and owing, the defendant claimed that he was entitled to offset against the balance due on the note the amount of his damages and losses which resulted from the late planting of crops and the false inducement of signature. In the further alternative, he asserted that the contract should be set aside because of failure of consideration.

On June 5, 1989, the bank filed a motion and rule to strike from the answer the allegations concerning the affirmative defenses. The record does not reflect any disposition of this motion.

On July 24, 1989, the bank filed a motion for summary judgment. Attached to the motion was an affidavit by the bank's vice president, verifying the facts as set forth in the petition. In response, the defendant filed an opposition and affidavit in support of the allegations contained in his answer. A hearing was held on August 14, 1989. Subsequently, the trial court ruled on August 21, 1989, that there was no genuine issue as to material facts, and granted the summary judgment. A judgment in conformity with this decision was signed on September 18, 1989.

The defendant appealed. Thereafter, on March 6, 1990, a motion and order for substitution of party-plaintiff was filed in this court. It was asserted that People's Homestead Federal Bank for Savings had been placed into receivership under the authority of the Office for Thrift Supervision and that the Resolution Trust Corporation had been appointed receiver. Subsequently, OTS had created a new institution, People's Homestead Savings Bank, fsb, Monroe, Louisiana. Thus, the motion requested that the Resolution Trust Corporation, as conservator of People's Homestead Savings Bank, fsb, be substituted as a party-plaintiff as it is the successor-in-interest of the assets of People's Homestead Federal Bank for Savings. The motion was granted on April 2, 1990.

In his appeal, the defendant asserts that the trial court erred in granting the motion for summary judgment. Specifically, he contends that there was a failure of consideration because his sons were not given the loan which was allegedly promised if he signed the note on March 1, 1987. He further asserts that the bank's breach of its agreement by failing to provide the loan caused him to incur losses for which he should be permitted an offset to be established at trial.

*274 The plaintiff argues that the record is devoid of any evidence of a promise of future financing. Furthermore, it alleges that even if the defendant's allegations are accepted as true, any evidence tending to establish them would be inadmissible under the Louisiana parol evidence rule and the federal D'Oench doctrine.

SUMMARY JUDGMENT

Summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the moving party is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. When a motion for summary judgment is made and supported by affidavits, answers to interrogatories and admissions of record, the adverse party may not rest on the mere allegations or denials of his pleading, but must, by affidavit or otherwise, show specific facts which establish that a genuine issue exists for trial. If the adverse party does not so respond, summary judgment shall be rendered against him, if appropriate. LSA-C. C.P. Art. 967.

The burden of proof initially rests upon the party moving for summary judgment to show convincingly, either by affidavits, depositions or other admissible proof, that there is an absence of a genuine issue of material fact between the litigants. All reasonable doubt shall be resolved against movant and in favor of trial on the merits. Until movant discharges this burden, the obligation of countering by the adverse party does not arise. Once movant has discharged this burden, the adverse party must show by admissible evidence that a genuine issue of material fact does exist. Landry v. E.A. Caldwell, Inc., 280 So.2d 231 (La.App. 1st Cir.1973).

Mere belief by a trial court that a litigant is unlikely to prevail on the merits is not sufficient cause to sustain a motion for summary judgment if a genuine dispute exists between the parties as to a material issue of fact. Landry, supra.

Louisiana Parol Evidence Rule

In support of its motion for summary judgment, the plaintiff furnished an affidavit by James L. Whitman, Jr., a vice president of People's Homestead.

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Bluebook (online)
569 So. 2d 271, 1990 WL 166882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peoples-homestead-federal-bank-v-laing-lactapp-1990.