Once the plaintiff, the holder of a promissory note, proves the maker's signature, or the maker admits it, the holder has made out his case by mere production of the note and is entitled to recover in the absence of any further evidence. Johnson v. Drury, 99–608 (La.App. 5 Cir. 6/2/00), 763 So.2d 103, 109–110; Premier Bank, Nat'l Association v. Percomex, Inc., 615 So.2d 41 (La.App. 3rd Cir.1993); Thomas v. Bryant, 597 So.2d 1065 (La.App. 2nd Cir.1992). Once the plaintiff has met his burden of proof, the burden shifts to the defendant to prove the existence of a triable issue of fact.
Only in the context of the applicable substantive law can issues of material fact be ascertained. Johnson v. Drury, 99-608, 99-1071, at 6 (La.App. 5 Cir. 6/2/00), 763 So.2d 103, 108; Sun Belt Constructors, Div. of MCC Constructors, Inc. v. T R Dragline Services, Inc., 527 So.2d 350, 352 (La.App. 5 Cir. 1988). The burden of proof remains with the movant.
Only in the context of the applicable substantive law can issues of material fact be ascertained. Johnson v. Drury, 99-608, 99-1071, at 5-6 (La.App. 5 Cir. 6/2/00), 763 So.2d 103, 107-8; Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T R Dragline Services, Inc., 527 So.2d 350, 352 (La.App. 5 Cir. 1988). The burden of proof remains with the movant.
See also N&F Logistic, Inc. v. Cathay Inn Intern., Inc., 14-835 (La. App. 5 Cir. 4/15/15), 170 So.3d 275. Pannagl v. Kelly, 13-823 (La. App. 5 Cir. 5/14/14), 142 So. 3d 70, 74 (citing Johnson v. Drury, 99-608 (La. App. 5 Cir. 6/2/00), 763 So.2d 103, 109-110); Premier Bank, Nat'l Association v. Percomex, Inc., 92-243 (La. App. 3 Cir. 3/3/93) 615 So. 2d 41; Thomas v. Bryant, 597 So.2d 1065 (La. App. 2nd Cir. 1992)). Under the Uniform Commercial Code, as adopted by Louisiana, a "holder" is the party who possesses an instrument issued to him or his order.
89-927, (La. 12/11/1989), 553 So. 2d 836; see also Bank of Am. Nat. Trust & Sav. Ass'n v. Reeves, No. CIV.A. 94-2580, 1997 WL 537691, at *3 (E.D. La. Aug. 25, 1997) (stating the same). Pannagl v. Kelly, 13-823 (La. App. 5 Cir. 5/14/14), 142 So. 3d 70, 74 (citing Johnson v. Drury, 99-608 (La. App. 5 Cir. 6/2/00), 763 So.2d 103, 109-110); Premier Bank, Nat'l Association v. Percomex, Inc., 92-243 (La. App. 3 Cir. 3/3/93) 615 So. 2d 41; Thomas v. Bryant, 597 So.2d 1065 (La. App. 2nd Cir. 1992)). Under the Uniform Commercial Code, as adopted by Louisiana, a "holder" is the party who possesses an instrument issued to him or his order.
Assuming no such counter has been made, to collect on a promissory note, a plaintiff must establish (1) the existence of the note in question, (2) the defendant signed the note, (3) the plaintiff is the owner and holder of the note, and (4) a certain balance is due and owing on the note. Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex. App. 1992); cf. Johnson v. Drury, 763 So. 2d 103, 110 (La. Ct. App. 2000) (stating the very similar Louisiana variant). As this schematic suggests, enforcement of a promissory note does not require a perfect mortgage.
Summary judgment is the proper procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement. Johnson v. Drury, 99-608 (La.App. 5 Cir. 6/2/00), 763 So. 2d 103, 109. "Once the holder of a promissory note proves the maker's signature, or the maker admits it, the holder has made out his case by mere production of the document and is entitled to recover in the absence of any further evidence."
Once the plaintiff, as holder of a promissory note, proves the maker's signature, or the maker admits it, the holder has made out his case by mere production of the note and is entitled to recover in the absence of any further evidence. Whitney Bank , 236 So.3d at 780-81 ; Johnson v. Drury , 99-608 (La. App. 5 Cir. 6/2/00), 763 So.2d 103, 109-110. Once the plaintiff has met his burden of proof, the burden shifts to the defendant to prove the existence of a defense or triable issue of material fact.
[I]n any asset acquired by it as a receiver unless such agreement: (1) is in writing; (2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset; (3) was approved by the depository institution's board of directors or its loan committee; and (4) has been continuously an official record of the depository institution. Johnson v. Drury , 99-608, 99-1071 p. 7 (La.App. 5 Cir. 6/2/00), 763 So.2d 103, 108. Fidelity Bank contends the D'Oench, Duhme doctrine requires that The Bank's alleged breach of its contractual obligations of good faith and fair dealing, which resulted in the claimed impairment of Westgate's security for its debt, must be evidenced on the face of Westgate's loan documents maintained by The Bank or they fail.
Such proof can be established through parol evidence. Scafidi v. Johnson , 420 So.2d 1113, 1115 (La. 1982) ; Johnson v. Drury , 99-1071, p. 10 (La. App. 5 Cir. 6/2/00), 763 So.2d 103, 109, 110. In the present case, Conerly presented his sworn affidavit in support of his defenses to the notes.