Opinion
2018 CA 0149
02-25-2019
BAYVIEW LOAN SERVICING, LLC, A DELAWARE LIMITED LIABILITY COMPANY v. JOYCE MARIE SPEARS ATKINS A/K/A JOYCE SPEARS ATKINS A/K/A JOYCE M. ATKINS AND UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY - INTERNAL REVENUE SERVICE
Ashley E. Morris John Clyde Morris, III Jason R. Smith Rachel A. Williams Ethan A. Hunt Monroe, Louisiana Counsel for Plaintiff-Appellee Bayview Loan Servicing, LLC, a Delaware Limited Liability Company Ronald R. Johnson-Robertson Baton Rouge, Louisiana Counsel for Defendant-Appellant Joyce Marie Spears Atkins
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 635742, SECTION 25, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE WILSON E. FIELDS, JUDGE Ashley E. Morris
John Clyde Morris, III
Jason R. Smith
Rachel A. Williams
Ethan A. Hunt
Monroe, Louisiana Counsel for Plaintiff-Appellee
Bayview Loan Servicing, LLC, a
Delaware Limited Liability Company Ronald R. Johnson-Robertson
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Joyce Marie Spears Atkins BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Defendant-appellant, Joyce Marie Spears Atkins, appeals the trial court's judgment, which enforces a promissory note secured by a mortgage on three parcels of commercial immovable property located in Baton Rouge that she owned after she failed to pay plaintiff-appellee, Bayview Loan Servicing, LLC (Bayview). For the following reasons, we affirm.
The mortgaged properties bear the following Baton Rouge municipal addresses: 3393 Victoria Drive; 5245 Winbourne Avenue; and 10079 Burbank Drive.
BACKGROUND
When Atkins defaulted on a promissory note executed in December 2007, as well as subsequent loan modification agreements she executed in favor of Bayview, Bayview filed a petition to enforce its security interest by ordinary process against Atkins on December 11, 2014, seeking to collect the remaining amount due on the note plus interest, costs, and fees. Atkins filed an answer denying Bayview's allegations.
Although the initial promissory note was issued in favor of Interbay Funding, LLC (Interbay), Bayview attached to its petition a copy of the assignment of the mortgage note from Interbay to Bayview, which was also identified in an affidavit executed by a Bayview document coordinator attached to Bayview's motion for summary judgment.
The IRS was also named as a defendant because the property was encumbered by a tax lien in favor of the IRS. Bayview and the IRS entered a consent judgment in January 2015 that allowed Bayview to proceed with the seizure and sale of the property at issue but attached the IRS's lien to the proceeds of the sale.
On April 9, 2015, Bayview filed a motion for summary judgment averring that, because there were no issues of material fact, it was entitled to a judgment enforcing the terms of the agreements. Atkins opposed the motion and, on July 27, 2015, filed a verified PETITION/MOTION for a temporary restraining order, with subsequent issuance of a preliminary injunction and a permanent injunction. In the verified petition/motion, Atkins claimed that she had been a victim of predatory loan practices and was, therefore, entitled to injunctive relief arresting the sale and seizure of her properties. On March 24, 2017, Atkins filed a reconventional demand alleging breaches of contract and a fiduciary duty by Bayview for having failed to obtain forced-place insurance coverage on the property securing the promissory note. Maintaining that the uninsured property was damaged in the flood of August 2016, Atkins claimed the right to a set-off or credit against Bayview, which she sought to have applied against Bayview's enforcement of the promissory note and loan modification agreements.
The trial court granted Bayview's motion for summary judgment in open court on May 22, 2017. A judgment was subsequently signed in favor of Bayview that awarded the principal amount along with interest and other incidentals, including attorney fees. Atkins appeals.
Another panel of this court issued an interim order dismissing the appeal finding that the judgment issued by the trial court on June 15, 2017 lacked the requisite specificity in that it failed to state the precise amount of recovery awarded to Bayview. See Bayview Loan Servicing , LLC v. Atkins , 2018-0149 (La. App. 1st Cir. 5/29/2018) (unpublished interim order). In addition to including the precise amount of $4,700.00 in attorney fees, the reformed judgment signed on August 30, 2018 and supplement into this record awarded to Bayview the principal in the amount of $781,254.14 with default interest @ 10.00% of $78,124.51 along with interest thereon at 4.00% per annum from February 1, 2014, until paid. Late charges of $190.84, advances of $19,962.24 for the payment of taxes and insurance, inspections of $42.00, prior attorney fees and expenses of $45.40, accrued through February 28, 2015, were also awarded in the reformed judgment.
Atkins did not file a motion for suspensive appeal within 30 days of the expiration of the time to file a motion for new trial and likewise failed to timely post an appeal bond as required by La. C.C.P. art. 2123. However, because Atkins satisfied the requirements for filing a devolutive appeal, i.e., she filed a petition for appeal within 60 days of the expiration of the delay for applying for a new trial, see La. C.C.P. art. 2087, the suspensive appeal is converted to a devolutive appeal. See Stevens v. St. Tammany Par. Gov't , 2016-0534 (La. App. 1st Cir. 1/18/17), 212 So.3d 568, 574. To the extent that Atkins has raised challenges to the trial court's denial of injunctive relief, her appeal was untimely. See La. C.C.P. art. 3612C ("An appeal from ... [a] judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the ... judgment.). Accordingly, any complaints by Atkins related to the denial of the preliminary injunction are not properly before us in this appeal.
DISCUSSION
Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action ... and shall be construed to accomplish these ends." La. C.C.P. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC v. Louisiana Hardwood Products LLC , 2016-0758 (La. App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 2017-1748 (La. 12/5/17), 231 So.3d 624.
A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966A(3). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Larson v. XYZ Ins. Co., 2016-0745 (La. 5/3/17), 226 So.3d 412, 416.
Without challenging the evidentiary basis for the trial court's grant of summary judgment in favor of Bayview, Atkins urges instead that summary judgment was inappropriate because it failed to resolve the issues pleaded in her reconventional demand. She asserts that outstanding issues of material fact preclude the grant of summary judgment. Specifically, she maintains whether she is entitled to setoffs or credits for her recovery on the claims asserted in her reconventional demand and the amounts of each are unresolved material facts.
Our independent review of the record shows that Bayview sustained its burden of proving its right to summary judgment on the enforcement of the promissory note. See La. R.S. 10:3-301 (setting forth the requirements necessary for a person to enforce a promissory note); 3-309 (providing for the enforcement of a lost promissory note); and Hebert v. Torbert , 2017-1628 (La. App. 1st Cir. 1/7/19), 2019 WL 126337, *3 (unpublished opinion) (holding that in order to enforce a promissory note, a plaintiff must, among other things, show that the defendant has defaulted; and as to an assignee, present evidence of a chain of assignments). See also La. C.C. art. 1832 (establishing an exception for the requirement of documentary proof of a written contract when it has been lost).
At the time that Bayview moved for summary judgment and the matter was set for hearing, Atkins had not yet filed her reconventional demand asserting her claims for damages. It was not until March 24, 2017 that Atkins averred she was entitled to money damages and then her allegations were directed to alleged breaches of contract and a fiduciary duty by Bayview as a result of its failure to obtain forced-placed insurance. Atkins did not amend her reconventional demand to include allegations of entitlement to monetary damages as a result of alleged predatory loan practices by Bayview and, more importantly, did not move to have the claims set forth in her reconventional demand heard at the May 22, 2017 hearing. Thus, the record establishes that Atkins' entitlement to money damages was not an issue before the trial court at the time of the summary judgment hearing.
The appropriate circumstances for setoff are explained in American Bank v. Saxena , 553 So.2d 836, 844 (La. 1989), as follows:
Set-off, or to use the codal term, compensation, takes place by operation of law when two persons owe to each other sums of money and these sums are liquidated and presently due. In such a case, compensation extinguishes both obligations to the extent of the lesser amount. [La.] C.C. 1893.Independent Living Ctr., Inc. v. State , Dep't of Soc. Servs., 93-0776 (La. App. 1st Cir. 6/24/94), 638 So.2d 1202, 1205.
"The two debts must be equally liquid.... [A] liquid debt [is] one whose existence is certain and its quantity determined. A disputed debt is not liquid and cannot be admitted as susceptible of compensation unless the one who asserts compensation has in hand the proof of the existence of the disputed debt and is thus in a position to prove it promptly." 4 Aubry & Rau, Cours de Droit Civil Francais, s. 326 (6th ed. 1965).
In this case, Bayview filed its petition in December 2014 and its motion for summary judgment in April 2015. The hearing on the motion for summary judgment, continued several times, was set for May 22, 2017 by a trial court order dated March 27, 2017, after the grant of Atkins' March 22, 2017 motion to continue on the basis of a scheduling conflict. It was not until March 26, 2017 that Atkins filed her reconventional demand, raising her claim of entitlement to damages from Bayview. Bayview answered the reconventional demand, denying some allegations but averring that "an active lender placed flood insurance policy" was and is in effect on the property. Atkins neither sought to join the issues raised in her pleading with the already-scheduled May 22, 2017 hearing on Bayview's motion for summary judgment and her claim for injunctive relief; nor did she seek a continuance of the May 22, 2017 hearing or to otherwise put before the trial court the propriety of trying the claims set forth in the reconventional demand in a single proceeding. Accordingly, we find no error in the trial court's grant of summary judgment.
According to the terms of the promissory note, Atkins agreed to pay, among other things, Bayview's attorney fees. Atkins challenges the trial court's award of $4,700.00 in attorney fees suggesting that it is excessive. We disagree.
Although in her appellate brief Atkins maintained that attorney fees were awarded without a hearing, the August 30, 2018, reformed judgment states that the trial court held a hearing in conjunction with its compliance of this court's interim order. Thus, we find it unnecessary to address Atkins' assertion that a hearing was required before the trial court could enter an award of attorney fees to Bayview. --------
It is well recognized that the Louisiana Supreme Court has full and exclusive authority to regulate all aspects of the practice of law, including the client-attorney relationship. E.g., Chittenden v. State Farm Mut. Auto. Ins. Co., 2000-0414 (La. 5/15/01), 788 So.2d 1140, 1148. Further, "[c]ourts are vested with the responsibility of both monitoring and analyzing the attorney-client relationship, even when it is based on a written contract between the parties." Whitney Bank v. NOGG , L.L.C., 2015-1399 (La. App. 1st Cir. 6/3/16), 194 So.3d 819, 823, quoting In re Interdiction of DeMarco , 2009-1791 (La. App. 1st Cir. 4/7/10), 38 So.3d 417, 427. However, that responsibility must be carried out with restraint, especially when the parties have signed a contract that sets the terms of the attorney-client relationship. Part of any attorney-client relationship is the fee the attorney may charge the client for professional services. Any court-ordered reduction in an attorney's fee must rest upon a factual finding that the excessive fee amount was never earned. Absent a showing that the fee charged was clearly excessive, a contractual relationship between an attorney and client should not be altered. Id.
An appellate court must use the "clearly wrong" or "manifestly erroneous" standard of review in considering a trial court's factual findings relating to the reasonableness of a contractual attorney fee. Id., 38 So.3d at 428. Factors to be considered in determining the reasonableness of attorney's fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. Whitney Bank , 194 So.3d at 824.
Admitted into evidence was an affidavit of Bayview's attorney attesting to the date, articulating the activity undertaken, and setting forth the duration of time expended on each activity. The itemization showed that between October 20, 2014 and June 12, 2018, 73.5 hours had been expended in the enforcement of Bayview's claims with total billings amounting to $9,492.50. In light of the attestations admitted into evidence, a reasonable factual basis exists to support the trial court's award of $4,700.00, which was less than one-half the amount Bayview's attorney billed. Accordingly, we conclude that the trial court's award of attorney fees is not excessive.
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against defendant-appellant, Joyce Marie Spears Atkins.
AFFIRMED.