SECURITY NAT. PART. LTD. PARTNER. v. Baxley

859 So. 2d 890, 2003 WL 22439746
CourtLouisiana Court of Appeal
DecidedOctober 29, 2003
Docket37,747-CA
StatusPublished
Cited by11 cases

This text of 859 So. 2d 890 (SECURITY NAT. PART. LTD. PARTNER. v. Baxley) 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
SECURITY NAT. PART. LTD. PARTNER. v. Baxley, 859 So. 2d 890, 2003 WL 22439746 (La. Ct. App. 2003).

Opinion

859 So.2d 890 (2003)

SECURITY NATIONAL PARTNERS, LIMITED PARTNERSHIP, Plaintiff-Appellee,
v.
Earnest BAXLEY and Carolyn C. Baxley, Defendants-Appellants.

No. 37,747-CA.

Court of Appeal of Louisiana, Second Circuit.

October 29, 2003.

*891 Charles B. Bice, Winnfield, for Defendants-Appellants, Earnest Baxley and Carolyn C. Baxley.

William A. Fogleman, for Plaintiff-Appellee, Security National Partners Limited Partnership.

Robert A. Thrall, for Defendant-Appellee, Assistant U.S. Attorney United States of America.

Before BROWN, GASKINS and CARAWAY, JJ.

CARAWAY, J.

The makers of a promissory note secured by a collateral mortgage question in this appeal the trial court's grant of summary judgment in favor of a party that was not the named payee of the note. Finding no material issue of fact concerning the plaintiff's right to enforce the promissory note and the mortgage, we affirm that portion of the judgment setting forth the amount of the debt. The remaining portion of the judgment concerning attorney's fees and escrow payments lists no amounts for those items. We therefore reverse that portion of the judgment pertaining to escrow payments and attorneys fees, and remand.

Facts

Security National Partners, Limited Partnership ("Security National") filed suit in November, 2001, against Earnest Baxley and Carolyn C. Baxley, husband and wife ("the Baxleys"), alleging the Baxleys' default on a 1990 loan which had been the subject of a Modification Agreement between the parties dated December 16, 1996. The agreement recited the following:

[The Baxleys] acknowledge that as of September 1, 1996, they are indebted to [Security National] in the principal amount of $134,596.52, plus accrued interest *892 at the rate of 9.00%, for a total balance as of December 1, 1996 of $181,106.92, which indebtedness is evidenced by the Note. (Emphasis added).
NOW, THEREFORE, in consideration of the premises and in order to induce [Security National] to forebear and modify the Note, the parties hereby covenant and agree as follows:
1. [The Baxleys] have requested and [Security National] agrees to accept the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 ($150,000.00) DOLLARS, plus interest on the unpaid principal balance at the rate of ten (10%) percent per annum from date until paid. The modified payment schedule is as follows: Thirty-six (36) payments; payments 1 through 12 will be in the sum of $2,450.00 each beginning December 1, 1996 and each subsequent monthly payment will be due on the first day of each month thereafter; payments 13 through 35 will be in the sum of $1,450.00 each and payment 36, the final payment, will be for the entire principal balance plus accrued interest still remaining due and payable.
* * *
9. [Security National] and [the Baxleys] agree that all provisions of the Note and any Collateral Documents not specifically amended herein shall remain in full force and effect.

During the course of the proceedings, the parties stipulated that the Baxleys paid five installments pursuant to the Modification Agreement, with the last payment occurring in 1997.

Security National's petition also alleged that it was the holder of the two promissory notes. The two notes were filed in the record. The first note (hereafter the "Handnote"), for $675,273.81, dated February 22, 1990, was signed by the Baxleys and payable to Jonesboro Federal Savings and Loan Association ("Jonesboro Federal"). The Handnote set forth no provisions for the manner in which it would be paid nor specified an interest rate. The Handnote did state that it was "secured by the pledge of that collateral mortgage note dated February 22, 1990 in the amount of $675,273.81 bearing interest at the rate of 12.00% per annum from date." The Handnote contains no endorsement from Jonesboro Federal or any other party. The second note (hereafter the "Collateral Mortgage Note"), for $675,273.81, dated February 22, 1990, was signed by the Baxleys and payable to "ourselves," on demand. Security National further alleged that the Collateral Mortgage Note was paraphed for identification with a collateral mortgage also executed by the Baxleys on February 22, 1990, in the amount of $675,273.81, and recorded in the mortgage records of Winn Parish.

On November 29, 2001, Security National filed this suit against the Baxleys. The United States was made a necessary party because of two federal tax liens recorded in Winn Parish. Security National prayed for judgment against the Baxleys for $144,378.56 plus interest, fees and costs, and recognition of the collateral mortgage. It further prayed that its mortgage be recognized as superior to the federal tax liens.[1]

Security National moved for summary judgment, submitting affidavit testimony showing that $144,378.56 was owed on the debt. The Baxleys opposed the motion on the ground of various deficiencies in the exhibits evidencing the indebtedness.

*893 Nevertheless, they filed no affidavits or documents in opposition to the motion.

The evidence supporting the motion revealed that the Baxleys filed a voluntary petition for Chapter 11 bankruptcy protection on October 22, 1990.[2] The record contains the plan of reorganization which listed $180,000 as the secured portion of Jonesboro Federal's claim and recognized a 20-year payout pursuant to the plan at 10% interest per annum. The plan designated the remainder of Jonesboro Federal's debt, estimated to be $455,000, as an undersecured claim and listed it among the other unsecured claims.

Thereafter, Jonesboro Federal went into receivership. On June 29, 1992, the Resolution Trust Corporation assigned all of its rights in the Baxleys' notes to Alaska Southern Partners, a Limited Partnership ("Alaska"). During the pendency of the Baxleys' bankruptcy, Alaska obtained a $40,000.00 payment in 1993 on the indebtedness in exchange for its release of one of the two tracts of land encumbered by the mortgage.

An assignment of the Handnote from Alaska to Security National was executed on November 27, 2001. This was long after the time that Security National obtained the Modification Agreement from the Baxleys in December, 1996.

The Baxleys answered the petition, admitting their execution of the Modification Agreement. In an answer to an interrogatory regarding the relationship between the Handnote and the Modification Agreement, the Baxleys stated:

Further answering, affiants state that they were contacted by a company named Security National Partners concerning the indebtedness they owed Jonesboro Federal Savings and Loan and affiants agreed to enter into the modification agreement with Security National Partners, acknowledging they were indebted to Security National Partners for the amount set forth in the modification agreement. Affiants' purpose of entering into the modification agreement was to allow themselves to structure a payment schedule to Security National Partners for the amount Security advised them they owed it and which they believed they could manage to repay.

After a hearing on Security National's motion, the trial court granted summary judgment on January 8, 2003. On the same day as the ruling, the Baxleys filed a peremptory exception of prescription, urging that both notes were prescribed on their face. Although it had already obtained summary judgment, Security National opposed the exception of prescription and appeared at the hearing on March 11, 2003.

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Bluebook (online)
859 So. 2d 890, 2003 WL 22439746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/security-nat-part-ltd-partner-v-baxley-lactapp-2003.