Williams v. Perkins-Siegen Partnership

623 So. 2d 146, 1993 La. App. LEXIS 2588, 1993 WL 254382
CourtLouisiana Court of Appeal
DecidedJuly 2, 1993
DocketNo. CA 91 1907
StatusPublished
Cited by1 cases

This text of 623 So. 2d 146 (Williams v. Perkins-Siegen Partnership) 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
Williams v. Perkins-Siegen Partnership, 623 So. 2d 146, 1993 La. App. LEXIS 2588, 1993 WL 254382 (La. Ct. App. 1993).

Opinion

EDWARDS, Judge.

The plaintiffs appeal a judgment dismissing their petition for deficiency judgment. After a thorough review of the record and the applicable jurisprudence we find no error below, and accordingly affirm.

Factual Background

Three separate tracts of land, which are the subject of this matter, were purchased from the plaintiffs by six of the defendants in three separate acts of cash sale on October 31,1984. The first tract, B-l, was purchased by James J. Hannie and Patricia Ann Coppo-nex Hannie (Hannie) with a loan in the amount of $440,000 from First National Bank of East Baton Rouge, secured by a collateral mortgage note paraphed “Ne Varietur” for identification with an Act of Collateral Mortgage affecting Tract B-l. The second tract, B-2, was purchased by Ronald K. Ferris and Lora Cross Ferris (Ferris) with a loan in the amount of $250,000 from First National Bank of East Baton Rouge, secured by a collateral mortgage note paraphed “Ne Varietur” for identification with an Act of Collateral Mortgage affecting Tract B-2. The third tract, B-3, was purchased by Thomas C. Lundin and Darlene Fasullo Lundin (Lundin) with a loan in the amount of $80,000 from First National Bank of East Baton Rouge, secured by a collateral mortgage note paraphed “Ne Varietur” for identification with an Act of Collateral Mortgage affecting Tract B-3.

The defendants paid the proceeds of these loans to the plaintiffs and the balance of the purchase price was represented by a promissory note in the amount of $821,500 secured by a collateral mortgage note paraphed “Ne Varietur” for identification with an Act of Collateral Mortgage affecting the immovable property consisting of all three tracts of land. This mortgage in favor of the plaintiffs was for all three tracts of land; however, they were listed and described separately in the act of mortgage as Tracts B-l, B-2, and B-3. All four of the above described mortgages were executed on October 31, 1984 and recorded on November 9, 1984.

On March 29, 1985 the three tracts of land were acquired by the defendant, Perkins-Siegen Partnership, by an Act of Sale with Assumption of Mortgages. The three tracts of land were listed and described separately in this act of sale.

[148]*148In March, 1988, the plaintiffs initiated ex-ecutory proceedings during which the three tracts of land were seized and sold, in globo, at sheriffs sale. Prior to the sale, a joint appraisal was submitted by Norbert Schex-nayder, the appraiser appointed by the plaintiffs and John Lejeune, the appraiser appointed by the Sheriff for the defendants. Following the sale, the plaintiffs instituted this ordinary proceeding against the same defendants claiming that they are entitled to a deficiency judgment.

Action of the Trial Court

The trial court found that the appraisal in this case was defective and invalid and therefore the plaintiffs were not entitled to a deficiency judgment. On appeal, the plaintiffs argue that the defendants failed to object timely to the appraisal process and were thereby precluded from raising such defense in this action. The plaintiffs further contend that the trial court erred in finding that the appraisal was untimely filed, and in holding that the appraisal did not comply with statutory provisions.

Are Defendants Precluded From Objecting to the Appraisal Process?

A judicial sale with appraisal in accordance with the statutory provisions is a prerequisite to a deficiency judgment. LSA-R.S. 13:4106; LSA-C.C.P. arts. 2771, 2772. Formal appraisal requirements ensure protection against an unjust sacrifice of the debtor’s property. See McMahon, The Historical Development of Executory Procedure in Louisiana, 32 Tul.L.Rev. 555, 567 (1958); see also First Guaranty Bank, Hammond, Louisiana v. Baton Rouge Petroleum Center, Inc., 529 So.2d 834, 844 (La.1988). This prerequisite is a matter of public policy which “can not, and shall not be waived by a debtor.” LSA-R.S. 13:4107.

In League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968), our supreme court held that a fundamental defect in executory proceedings was a bar to a later action for a deficiency judgment. In First Guaranty Bank, 529 So.2d at 843-44, the court overruled the broad holding in League Central, and held that the safeguards provided by the deficiency judgment act were not intended to “bar a creditor who fully complies with appraisal requirements from obtaining a deficiency judgment simply because of a lack of authentic evidence in the executory proceeding.” (emphasis added). Although First Guaranty Bank evidences a departure from the harsh application of the deficiency judgment act to every defect in the executory proceeding, a close reading of the case reflects that the decision was based on a specific holding and, contrary to plaintiffs’ argument, did not eliminate the requirement of an appraisal in accordance with law. In fact, the court has restated its position in Security Homestead Association v. Fuselier, 591 So.2d 835, 340-41 (La.1991), as follows:

First Guaranty makes it clear that a defense based on formal or procedural defects in an executory proceeding must be raised in that proceeding, and may not be raised as a defense, in an action for a deficiency judgment. The decision in that case also makes it clear, however, that a judicial sale with appraisal in accordance with the statutory provisions is a prerequisite to a deficiency judgment. This prerequisite is mandated by the deficiency judgment act, [citations omitted], which preclude deficiency judgments where property is foreclosed and sold without appraisal in accordance with law. (emphasis added).

The Appraisal Requirements

Prior to sale, the property seized must be appraised in accordance with law, and the order directing the issuance of the writ of seizure and sale must have directed that the property be sold as prayed for. LSA-C.C.P. art. 2723. Furthermore, not less than seven days, exclusive of holidays, before the sale of seized property, the sheriff shall serve written notice on the debtor and on the seizing creditor, in the manner provided for the service of citation, directing each to name an appraiser to value the property and to notify the sheriff of his appointment prior to the time stated in the notice. LSA-R.S. 13:4363 A.

The statutory requirements of service of notice of seizure and notice to appoint appraisers are designed to afford the debtor [149]*149with the right and a meaningful opportunity to participate in the appraisal process. Failure to comply with these requirements deprives the debtor of “a significant right, not a mere procedural nicety.” [citation omitted] These requirements go to the heart of an effective appraisal process, the absence of which precludes a deficiency judgment. See First Acadiana Bank v. Bieber, 582 So.2d 1293, 1296 (La.1991).

Security Homestead Association v. Fuselier, 591 So.2d 335, at 341 (La.1991) (emphasis added).

Application of the Law

In order to obtain a deficiency judgment, the plaintiffs had the burden of establishing compliance with two criteria: (1) insufficiency of the sale proceeds to satisfy the underlying debt; and (2) sale of the seized property after appraisal in accordance with the codal and statutory requirements for executory proceedings. First Acadiana Bank v. Bieber, 582 So.2d at 1296 (emphasis added).

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Related

Williams v. Perkins-Siegen Partnership
649 So. 2d 367 (Supreme Court of Louisiana, 1995)

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623 So. 2d 146, 1993 La. App. LEXIS 2588, 1993 WL 254382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-perkins-siegen-partnership-lactapp-1993.