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Occidental Props., Ltd. v. Zufle

Court of Appeals of Louisiana, Fifth Circuit

November 25, 2014

OCCIDENTAL PROPERTIES LTD.
v.
TIM T. ZUFLE AND THE UNOPENED SUCCESSION OF DIANE REED ZUFLE

Page 125

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 700-807, DIVISION " B" . HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING.

WILLIAM P. CONNICK, MICHAEL S. FUTRELL, GREGORY C. FAHRENHOLT, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

MARK C. LANDRY, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR THE DEFENDANT/APPELLEE.

Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg.

OPINION

HANS J. LILJEBERG, J.

Page 126

[14-494 La.App. 5 Cir. 2] Plaintiff, Occidental Properties, Ltd., seeks review of the trial court's ruling granting an exception of prescription filed by plaintiff-intervenor, Brae Asset Fund, L.P. For the following reasons, we affirm.

Factual & Procedural History

At the outset, we note that the parties to the instant appeal, Occidental Properties, Ltd. (" Occidental" ) and Brae Asset Fund, L.P. (" Brae" ), were involved in previous litigation, wherein Occidental filed suit to enforce the same promissory note and mortgage that form the basis of the instant appeal on September 8, 2003, in the 24th Judicial District Court, Parish of Jefferson, case no. 598-616. Brae intervened asserting its claim against the property was superior in rank. After no action was taken to prosecute the matter to judgment for over three years, the case was dismissed as abandoned pursuant to La. C.C.P. art. 561 on October 22, 2010. This Court affirmed the dismissal of the action on appeal. See Occidental Properties, Ltd, v. Zufle, 11-77 (La.App. 5 Cir. 11/15/11), 79 So.3d 1135, 1136.

[14-494 La.App. 5 Cir. 3] Subsequently, on April 21, 2011, Occidental filed a Petition for Foreclosure by Ordinary Process, thereby instituting its second suit in this matter, which is the focus of the instant appeal. In this second suit, Occidental alleges that it is a holder of a promissory note executed by defendants, Tim T. Zufle and the Unopened Succession of Diane Reed Zufle (" Zufles" ), dated August 25, 1988, payable to the order of Bearer, in the amount of $125,000.00, payable in 120 equal monthly installments of $1,376.00, with the first installment having been due on September 1, 1988, and continuing on the first day of each month thereafter until September 1, 1998, at which time the entire balance of the promissory note was to become due and payable.[1] The promissory note was secured by an Act of Mortgage[2] and recorded in the mortgage records of Jefferson

Page 127

Parish, State of Louisiana, on August 25, 1988.

On June 29, 1998, said promissory note was sold and assigned by the original holder of the note, Lafourche Life Insurance Company, to Occidental. The written sale and assignment was recorded on June 30, 1998, in the mortgage records of Jefferson Parish. Thereafter, on August 17, 1998, the promissory note and Act of Mortgage were amended and recorded. Under the terms of the amendment, the parties agreed, in pertinent part, to an extension of the maturity date of the promissory note from September 1, 1998, to September 1, 2008, and agreed that all other terms and conditions of the promissory note and mortgage, except as amended and modified in the amendment, would remain in full force and effect.

The petition further alleges that the Zufles failed to make a full payment to Occidental on the promissory note, as amended, since April 1, 1999, and that the [14-494 La.App. 5 Cir. 4] remaining unpaid principal balance on said note is $65,595.05, which accrued interest through March 28, 2011, and interest thereafter at the rate of 10% per annum until paid, plus 25% of said principal and interest as attorney's fees, and all costs of the proceedings as provided under the terms of the promissory note and mortgage as amended.[3]

Occidental therefore prayed for judgment in its favor and against the Zufles, in solido, for all sums due under the promissory note, plus interest, attorney's fees, and costs, and judicial recognition of the mortgage securing said sums reserving to Occidental the right to assert the rights and rank granted to it in the mortgage. Occidental additionally ...


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