Whitney National Bank v. Buchler

615 So. 2d 895, 1993 La. App. LEXIS 874, 1993 WL 49580
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1993
DocketNo. 92-CA-1312
StatusPublished
Cited by1 cases

This text of 615 So. 2d 895 (Whitney National Bank v. Buchler) 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
Whitney National Bank v. Buchler, 615 So. 2d 895, 1993 La. App. LEXIS 874, 1993 WL 49580 (La. Ct. App. 1993).

Opinions

PLOTKIN, Judge.

Defendant Elizabeth M. Humphrey Bu-chler appeals a trial court judgment granting a motion for summary judgment and awarding plaintiff Whitney National Bank $192,514.69 in a deficiency judgment proceeding. We affirm.

Facts

As holder of two promissory notes payable on demand executed by Ms. Buchler, Whitney initiated this suit by a Petition for Executory Process to foreclose on immovable property owned by Ms. Buchler which was the subject of a $500,000 collateral mortgage securing the two debts. The first of the two promissory notes, in the amount of $10,500 was dated December 17, 1986, and bore an interest rate of 9.5 percent per annum until paid. The second, in the amount of $385,358.29, was dated February 3, 1987, and bore an interest rate of 10.5 percent per annum until paid. The back of the promissory notes, which were attached to the petition for executory process, bore evidence of numerous extensions; each time the notes were extended, the interest rate changed. The new interest rates were noted on a stamp, and Ms. Buchler signed the document each time it was extended.

Following appraisal by the plaintiff’s appointed appraiser and a second appraiser selected by the court when Ms. Buchler failed to appoint an appraiser and advertisement of the sale as required by law, the property was sold by bid for $221,375. The high bidder was Whitney.

Whitney thereafter filed a petition for deficiency judgment, alleging that the proceeds from the sale, less costs of the sheriff’s sale, plus $8,600 in rental monies re[897]*897ceived while it acted as keeper of the property, were insufficient to satisfy Ms. Bu-chler’s obligation to the bank. The bank then filed a motion for summary judgment which was granted by the trial judge. Ms. Buehler appeals.

Standard for Granting Motion for Summary Judgment

When reviewing a trial court decision granting a motion for summary judgment, appellate courts consider the evidence de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Schroeder v. Board of Supervisors, 591 So.2d 342, 345 (La.1991). That is, the appellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966(B). Thus, a motion for summary judgment may be granted only when the mover has proven both of the following elements: (1) no genuine issues of material fact exist, and (2)the mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979); Transworld Drilling v. Texas General Petroleum Co., 524 So.2d 215, 217 (La.App. 4th Cir.1988). All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion; all allegations of the party opposing the motion must be taken as true and all doubt must be resolved in his favor. Schroeder, 591 So.2d at 345.

Analysis:

Under the jurisprudence interpreting Louisiana’s Deficiency Judgment Act, LSA-R.S. 13:4106 et seq., a creditor is entitled to a deficiency judgment against a debtor on the establishment of three things: (1) existence of the obligation, (2) amount of the deficiency due, and (3) that the property has been sold with benefit of appraisal. First Acadiana Bank v. Bieber, 562 So.2d 1025, 1029 (La.App. 3d Cir. 1990).

In the instant case, Whitney’s motion for summary judgment was accompanied only by one affidavit; that affidavit was executed by Albert Lord, Whitney’s assistant vice president. The affidavit cites the above facts relative to the existence of Ms. Buchler’s debt and specifically recites the fact that the property was sold subject to appraisal. Additionally, the top of the second page of the affidavit listed the defendant’s indebtedness as follows:

(On the 10,500.00 note)
Principal $1,290.80
Interest (accrued through 10-15-90) 34.48
Intsrcst (from 10-16-90 through 3-21-91) 63.63
Total $1,388.99
(On the $385,358.29 note)
Principal $382,900.00
Interest (accrued through 10-15-90) 9,498.04
Intersst (from 10-16-90 through 3-21-91) 18,871.12
Total $411,269.16

The last paragraph of the affidavit alleges as follows:

There presently remains due and owing unto petitioner the principal sum of $1,290.88 plus interest accrued through March 21, 1991 in the amount of $90.10, and the principal amount of $382,900.00 plus interest accrued through March 21, 1991 in the amount of $28,269.16, all subject to a credit of $220,035.45. This credit takes into consideration the sheriff’s costs paid and the rentals received.

Using the numbers set out by the last paragraph of the affidavit, the trial court calculated the defendant’s indebtedness as follows:

Principal on $10,500 note $ 1,290.88
Interest on $10,500 note 90.10
Principal on $385,358.29 note 382,900.00
Interest on $385,358.29 note 28,269.16
$412,550.14
Minus credit 220,035.45
($221,375 - 8,600 - 9,939.55)
TOTAL INDEBTEDNESS $192,514.69

Whitney admitted at the trial court and at this court that the two itemizations of the defendant’s indebtedness presented in the affidavit and quoted above are inconsistent. Using the numbers presented at the top of the second page of the affidavit, the [898]*898indebtedness would have been calculated as follows:

Principal and interest on $10,500 note $1,388.99
Principal and interest on $385,358.29 note 411,269.16
$412,658.15
Minus credit 220,035.45
TOTAL INDEBTEDNESS $192,622.70

Whitney claims that $192,622.70 is the correct amount of the indebtedness, but does not challenge the trial court’s finding because of its admitted mistakes in the affidavit. Whitney notes that the trial court judgment is thus beneficial to the defendant in the amount of $108.01.

Our de novo review of the record convinces us that the affidavit presented by Whitney is sufficient to meet the requirements for establishing entitlement to a deficiency judgment in the amount of $192,-514.69. The trial court judgment granting the motion for summary judgment is therefore affirmed.

Defendant’s arguments

Despite the above facts, Ms.

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Bluebook (online)
615 So. 2d 895, 1993 La. App. LEXIS 874, 1993 WL 49580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-national-bank-v-buchler-lactapp-1993.