Texas Bank of Beaumont v. Bozorg

534 So. 2d 498, 1988 La. App. LEXIS 2479, 1988 WL 127042
CourtLouisiana Court of Appeal
DecidedNovember 16, 1988
DocketNo. 88-CA-286
StatusPublished
Cited by2 cases

This text of 534 So. 2d 498 (Texas Bank of Beaumont v. Bozorg) 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
Texas Bank of Beaumont v. Bozorg, 534 So. 2d 498, 1988 La. App. LEXIS 2479, 1988 WL 127042 (La. Ct. App. 1988).

Opinion

WICKER, Judge.

The Texas Bank of Beaumont suspen-sively appeals certain findings of the trial judge with regard to interest and apportionment of costs in a sheriffs sale. We affirm in part, reverse in part, and render.

Texas Bank was the holder of two mortgages executed by the original defendant, Kazem Michel Bozorg. It sought exec-utory process to enforce these mortgages by having property seized and sold. Another holder of a mortgage executed by Bozorg, Massey-Ferguson, Inc., intervened to have its own mortgage recognized and ranked. Texas Bank purchased the property at the sheriff's sale on August 26, 1981, for less than the amount necessary to pay off the outstanding mortgages.

The trial of respective rankings and of issues of retroactivity of the mortgages resulted in a judgment in favor of Massey-Ferguson. Texas Bank appealed the ruling on one of the mortgages, and that appeal was heard by a five-judge panel of this court. The panel reversed the trial court, retroactively ranking Texas Bank’s mortgage so that it primed that of Massey-Ferguson. 444 So.2d 698 (La.App. 6th Cir. 1984), writ granted 449 So.2d 1342 (La.1984). The Supreme Court reversed the Fifth Circuit in part, finding that only part of Bozorg’s obligation to Texas Bank should be ranked retroactively. It held that $88,026.34 of his indebtedness plus accrued interest should prime Massey-Ferguson’s claim, with “costs ... to be assessed one-half to each of the two creditors.” 457 So.2d 667, 675 (La.1984).

Following this ruling, Massey-Ferguson asked the trial court to determine the amount due under its judgment, taking into consideration Texas Bank’s superior claims of $88,025.34 and $35,000.00 (the unap-pealed mortgage). The property had been sold at the sale to Texas Bank for $229,-167.00, a sum insufficient to pay off both creditors in full. Since Texas Bank was apparently entitled to $123,025.34, plus an additional sum in interest, attorney’s fees, and costs, Massey-Ferguson asked the court to determine the extent of Texas Bank’s entitlement so it could know precisely what was left over to satisfy its judgment.

Texas Bank had resold the property for $290,000.00, and Massey-Ferguson alleged the bank had the use of either the property or the proceeds since the sheriff’s sale. (This may have been only a paper transaction during a buy-out of Texas Bank by another bank.) Massey-Ferguson claimed Texas Bank owed it interest on its share of the proceeds from the date of the judicial sale until the date of payment. $9,135.35 had been expended by Texas Bank and by Massey-Ferguson in pursuing their respective claims, but Texas Bank’s expenditure was much larger since it had the costs and commission of the sheriff’s sale. Massey-Ferguson urged the trial court to divide those costs equally between the parties, in accordance with the Supreme Court’s opinion. Texas Bank opposed Massey-Ferguson’s contentions, arguing that it should receive interest on the amount due it through the dates of the Fifth Circuit and Supreme Court decisions and that the costs should be deducted from the sale proceeds prior to any further calculation, effectively charging all costs to Massey-Ferguson. By Massey-Ferguson’s calculation, Texas Bank would be entitled to a total of $151,-526.93 less one half of the costs, and Massey-Ferguson would be entitled to whatever remained, or $110,093.62. By Texas Bank’s calculations, it would be entitled to $210,639.14, and Massey-Ferguson would receive $10,407.40.

The trial judge considered the pleadings, the record, the Supreme Court opinion, and the arguments and awarded Massey-Fer[500]*500guson $41,029.96 “together with legal interest from August 26, 1981 until paid and for all additional costs incurred herein (emphasis added).” The trial judge outlined his reasons:

Texas Bank of Beaumont had seized and bought the property for $229,167.00 on August 26, 1981. Said bank did not deposit the sale proceeds in the Registry of the Court or in any interest accumulating account and sold it shortly thereafter for $290,000.00.
The Supreme Court left in tact [sic] the $35,000.00 principal claim of Massey Ferguson. To this sum is added the accrued interest up to the date of the purchase by Texas Bank of Beaumont which amounts to $5,015.06. The Court awards court costs in the amount of $1,014.90 which is the actual amount expended by Massey Ferguson, Inc. The Court cannot consider that the Supreme Court intended that Massey Ferguson, Inc. should share in splitting the $8,000.00 or $9,000.00 in court costs expended by Texas Bank of Beaumont. It appears to be quite equitable that each party be reimbursed for the actual expenditures as court costs or expenses in connection with his proceeding. These sums add up to $41,029.96.

Massey-Ferguson moved for a partial new trial on two grounds: the judgment awarded to it the $35,000.00 that Texas Bank was entitled to, and the trial judge failed to make any distribution of the proceeds of the sheriffs sale over and above that uncontested amount due Texas Bank. This motion was neither granted nor denied; an amended judgment awarded Massey-Ferguson $77,640.07 “together with legal interest from August 26, 1981 until paid and for all additional costs incurred herein.” The trial judge assigned additional reasons:

The Supreme Court left intact the $35,-000 principal claim of Texas Bank of Beaumont. To this sum is added the accrued interest up to the date of the purchase by Texas Bank of Beaumont which amounts to $5,015.06 plus attorneys fees in the amount of $8,003.01 or a total of $48,018.07. Texas Bank of Beaumont is also entitled to receive, on the second note, the principal amount of $88,-025.34 plus interest through the date of the sheriffs sale in the amount of $15,-483.52 or a total of $103,508.86. Thus, Texas Bank of Beaumont was entitled to receive a total of $151,526.93 on its claims under the two notes.
The proceeds of the sheriffs sale amounted to $229,167.00; deducting the $151,526.93 due to Texas Bank of Beaumont, the remaining balance of $77,-640.07 is due to Massey Ferguson, Inc. together with legal interest on said amount.... The Court cannot consider that the Supreme Court intended that Massey Ferguson, Inc. should share in splitting the $8,000.00 or $9,000.00 in court costs expended by Texas Bank of Beaumont.

Following Texas Bank’s first appeal, Massey-Ferguson moved to set its previously-filed motion for a new trial for hearing, noting that it had never been set nor had it been either granted or denied. Texas Bank excepted to the trial court’s jurisdiction. The Fifth Circuit vacated the amended judgment and remanded the matter for a hearing on Massey-Ferguson’s motion for a new trial, 496 So.2d 1215. Ultimately, on remand, the trial court reinstated its previous amended judgment, finding it correct, and its previous amended reasons.

Texas Bank has appealed suspensively from this judgment, arguing that the trial judge was manifestly erroneous in two respects: (1) he failed to reduce the sales proceeds by the costs of the sheriff’s sale, and (2) he used erroneous figures in his calculations of the amount due.

COSTS OF THE SHERIFF'S SALE

The actual amounts spent by Texas Bank were $6,875.00 in sheriff’s commission and $1,245.00 in costs of the sale and court costs. Massey-Ferguson spent $1,113.00 in court costs.

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Bluebook (online)
534 So. 2d 498, 1988 La. App. LEXIS 2479, 1988 WL 127042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-bank-of-beaumont-v-bozorg-lactapp-1988.