Opinion
No. 91-738.
November 4, 1992. Writ Granted January 15, 1993.
APPEAL FROM FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE BRADFORD WARE, DISTRICT J.
Liskow Lewis, Billy J. Domingue, Lafayette, John K. Pierre, New Iberia, for plaintiff-appellant.
Jefferson J. Moss, Jr., in pro. per.
The sole issue before us on appeal is whether the in globo sheriff's sale pursuant to executory process, of two separately mortgaged immovable properties which secured two different hand notes, was unlawful and is a defect which bars plaintiff's right to a deficiency judgment. The two properties were separately appraised. The trial judge granted a summary judgment in favor of defendants and dismissed plaintiff's suit for a deficiency judgment under the rationale of Central La. Bank Trust Co. v. Dauzat, 539 So.2d 1306 (La.App. 3d Cir. 1989). Plaintiff appeals this judgment. We reverse.
The facts in this case are distinguishable from those in Dauzat because that case involved two loans secured by various mortgages, one owed by both Shivor and Dauzat and the other owed only by Shivor. The in globo judicial sale of the combined property securing the two debts, seized under more than one executory proceeding, resulted in no available means to properly apportion the sale proceeds between the two debts. The creditor could not prove the amount owed by Dauzat alone in order to obtain a deficiency judgment against him. The case before us now involves two debts which are secured by two separate mortgages and are each owed by the same two debtors equally. The two mortgaged properties were separately appraised for equal values. Defendants have shown no prejudice resulting to them from the in globo sale. Plaintiff can prove the damages owed by the debtors in the deficiency judgments.
The facts and issue in this case are identical to the facts and issue in First Bank of Natchitoches v. Chenault, 576 So.2d 1123 (La.App. 3d Cir. 1991). In Chenault, this court distinguished Dauzat for the same reasons set forth above and upheld the creditor's right to a deficiency judgment. For the reasons given in Chenault, we find this case is clearly distinguishable from Dauzat. Therefore, we reverse the judgment of the trial court and remand for further proceedings.
Costs of this appeal are assessed to defendants-appellees.
REVERSED and REMANDED.