Succession of Wray

577 So. 2d 1163, 1991 La. App. LEXIS 649, 1991 WL 45772
CourtLouisiana Court of Appeal
DecidedApril 3, 1991
DocketNo. 22237-CA
StatusPublished
Cited by2 cases

This text of 577 So. 2d 1163 (Succession of Wray) 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
Succession of Wray, 577 So. 2d 1163, 1991 La. App. LEXIS 649, 1991 WL 45772 (La. Ct. App. 1991).

Opinion

MARVIN, Chief Judge.

In this succession proceeding, a creditor, FDIC, who filed a formal proof of claim that the succession representative rejected, appeals two judgments, the first of which authorized payment of listed debts, and the second of which placed the heirs in possession of a portion of the estate.

The creditor contends the trial court should have suspended the payment of debts and distribution of assets until its claim against the succession is litigated in a separate action. We deem it significant that FDIC did not oppose the application to pay debts or otherwise seek to suspend the proceedings in the trial court after the succession representative rejected FDIC’s claim.

On this record, we find no error and affirm the judgments. CCP Arts. 3241-3246, 3301-3308, 3372.

FACTS

Edwin Newton Wray, a former director of United Mercantile Bank in Shreveport, died January 24, 1989, survived by his wife and two children. In early February, his will was probated and his children were appointed as testamentary executors.

In July 1989, Wray’s widow and children received an offer to purchase community real estate for $130,000. The executors formally obtained court approval on August 25, 1989, to sell Wray’s interest. Notice of the application to sell was first published in the Shreveport Journal on July 26, 1989. Two days later, FDIC filed a “Creditor’s Formal Proof of Claim” in the succession proceeding, alleging its appointment as receiver of United Mercantile Bank in January 1988, about a year before Wray’s death, and asserting a claim against Wray’s succession “in the amount of $2,000,000 ... arising out of [Wray’s] breaches of fiduciary duty owed to United Mercantile Bank and other acts of negligent conduct ... as a director thereof.”

In a supporting affidavit .attached to the proof of claim, an FDIC “liquidation assistant” asserted that Wray approved 17 unsound commercial and industrial loans between July 1984 and March 1987, without attempting to determine the creditworthiness of the borrowers or the value of the collateral, which loans caused losses “in excess of $2,000,000.”

On July 31, 1989, the attorney for the executors acknowledged receipt of FDIC’s proof of claim and requested supporting details about the loans referred to in the affidavit to allow the executors to either acknowledge or reject FDIC’s claim within the 30-day period provided by CCP Art. 3242. The attorney prefaced the request for additional information by stating, “[t]his letter is neither an acknowledgment nor expressed rejection of the claim.” A copy of this letter to FDIC was filed in the succession proceeding on September 21, 1989, with an affidavit by the attorney for the executors stating that no response had been made by FDIC to the request for detailed information about FDIC’s claim.

[1165]*1165Court approval to sell Wray’s interest in the real estate was granted on August 25, 1989, after FDIC’s proof of claim was filed and before the affidavit of September 21, 1989, was filed.’ The clerk’s certificate stating that no opposition to the sale was filed within seven days from the date of the last publication of notice has a handwritten notation, “except for creditors formal proof of claim filed 7-28-89 by FDIC.” FDIC did not formally oppose the sale or attempt to appeal the judgment authorizing the sale.

In April 1990, the executors filed a “Petition to Homologate the Sworn Descriptive List,” to which was attached a list of assets valued at $4.6 million, consisting mostly of stocks and bonds, with debts and expenses totaling about $300,000, for a net estate value of $4.3 million. The list of debts did not include FDIC’s claim. The executors sought court authority to pay the debts and expenses and stated in their petition, “No creditor has petitioned for or requested notice of the filing of this petition, however, the Federal Deposit Insurance Corporation has filed a Formal Proof of Claim herein.”

Notice of the petition to homologate the sworn descriptive list was published in the Shreveport Journal and was sent to FDIC by certified mail on April 9, 1990. FDIC did not file opposition to the petition. On April 17, 1990, the clerk certified that no opposition was filed within seven days of publication, “except for claim by the FDIC.” On the same day, judgment was signed homologating the sworn descriptive list and authorizing the executors “to pay the debts of this succession and distribute property in accordance therewith.”

On April 23, 1990, the Wray children petitioned for and were granted a partial judgment of possession placing them in possession of about $663,000 in cash, derived from special bequests to them by Wray of about $413,000 and their mother’s renunciation of a testamentary usufruct which was valued at $250,000. The heirs accepted the partial dispositions with benefit of inventory. The partial judgment of possession authorized them, as executors, to continue administering the succession, to sell stocks and bonds at private sale, and to pay “all debts, expenses and charges of this succession, as more fully set forth in the Sworn Descriptive List previously filed herein.”

On May 24, 1990, a month later, FDIC entered an appeal of the judgments of ho-mologation and partial possession and filed an “Objection to Filing of Tableau of Distribution,” asserting that the judgment ho-mologating the sworn descriptive list had been signed but no tableau of distribution had been filed. Relying on the filing of its July 1989 proof of claim, FDIC formally objected “to any Tableau of Distribution which may be- filed in this matter to the extent that it does not include the claim of FDIC against the Succession ...”

When the appeal was taken, FDIC had not yet filed its suit against the succession or other former bank officers and directors. At oral argument of this appeal FDIC’s attorney said FDIC had filed suit in federal court in January 1991 against Wray’s succession and 13 other co-defendants, claiming over $10 million in damages.

CCP SCHEME FOR ENFORCING CLAIMS AGAINST A SUCCESSION

The procedural scheme to enforce a claim against a succession is found in CCP Arts. 3241-3246. These articles provide that the creditor must present a written claim to the succession representative, who has 30 days to acknowledge or reject the claim. If, as here, the succession representative does neither within 30 days, the claim is deemed rejected. Art. 3242.

The creditor’s filing of a formal proof of claim suspends prescription on the claim even if the claim is later rejected by the succession representative. Art. 3245. The creditor “may enforce his claim judicially” only after the succession representative has rejected the claim. Art. 3246. See also paragraphs (c) and (d) of the Official Revision Comments following Art. 3246. These comments state that the article applies “to all claims, whether liquidated or not, including damage suits,” and that it is based in part

[1166]*1166upon Art. 986 of the 1870 Code of Practice, which provides that if the claim is not liquidated or if the representative refused to approve it, the creditor may bring an ordinary action or may proceed by way of opposition to the final account. The language “may enforce his claim judicially” is intended to cover both of these procedures.

The succession representative must obtain court authority to pay debts and charges of the succession. CCP Art. 3301.

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Bluebook (online)
577 So. 2d 1163, 1991 La. App. LEXIS 649, 1991 WL 45772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-wray-lactapp-1991.