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Union Federal Credit Union v. Thornton

Court of Appeal of Louisiana, Second Circuit

January 28, 2015

UNION FEDERAL CREDIT UNION, Plaintiff
v.
THORNE THORNTON AND CHESTER FERGUSON, Defendant

Appealed from the Third Judicial District Court for the Parish of Union, Louisiana. Trial Court No. 44,283. Honorable R. Wayne Smith, Judge.

JUDGMENT AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

SMITH & NWOKORIE, By: Brian G. Smith, Anselm N. Nwokorie, Counsel for First Appellant, Union Federal Credit Union.

USRY, WEEKS & MATTHEWS, By: Fred Schroeder, Craig E. Frosch, Counsel for Second Appellant/Third Party Appellee, Union, v Parish Sheriff Dusty Gates.

Before WILLIAMS, CARAWAY and LOLLEY, JJ.

OPINION

Page 415

[49,529 La.App. 2 Cir. 1] CARAWAY, J.

The creditor with security over large vehicles brought this executory process proceeding which was initially interrupted by the bankruptcy of the debtor. Long after the seized property was abandoned by the bankruptcy court with this proceeding still pending, the sheriff intervened to tax the costs of towing and storage of the vehicles. Ultimately, after 689 days of storage, the sheriff sought $153,954. Rejecting the charge as " absurd," the trial court awarded judgment in favor of the sheriff for $12,450 for the towing and storage fees. Both sides appeal. We affirm the judgment in part and reverse in part.

Facts

On January 11, 2011, the creditor in this case, Union Federal Credit Union (" Union Federal" ), began this executory process proceeding on the loan obligation of Thorne Thornton and Chester Ferguson for the financing of several vehicles, including four tractor trucks and three trailers. The defendants' note was executed on August 14, 2008, in the sum of $36,923. Union Federal obtained an order on January 10, 2011, for seizure and sale of the vehicles, listed as collateral for the debt owed. The district court directed the Union Parish Sheriff's Department (" Sheriff" ) to seize four semi-trucks and three flatbed trailers. Three of the trucks and three trailers (hereinafter collectively " the 6 Vehicles" ) were towed by A& R Towing, Inc. (" A& R" ) on January 16, 2011. The 6 Vehicles were stored at A& R's lot and, with the consent of the Sheriff's office, A& R was appointed as keeper [49,529 La.App. 2 Cir. 2] of them. The fourth and only functional truck was delivered to Union Federal, which acted as keeper.

Page 416

Before a sale of the 6 Vehicles could occur, Thornton filed for bankruptcy protection on January 31, 2011, and the proceedings were stayed. Ultimately, the 6 Vehicles remained in A& R's storage from January 2011 through December 5, 2012, at which point Union Federal took possession of the 6 Vehicles as the substitute keeper. The vehicles were in storage at A& R's lot for 689 days. A portion of that time in storage occurred during the pendency of the bankruptcy before Union Federal obtained an abandonment order from the bankruptcy court.

A& R billed the Sheriff's office $2,730 for the cost of towing. For storage, they billed the Sheriff $36 per day per vehicle, the rate established by the Louisiana Public Service Commission for " oversized vehicles." At that cost, the 6 Vehicles were accruing a daily charge of $216. A& R charged an additional $2,400 as an office fee. The total amount billed for the 689 days plus other charges was $153,954. Upon the filing of the proceeding, the Sheriff collected $1,437.99 for statutory costs and fees, and those were paid before trial by Union Federal.

On March 12, 2012, the Sheriff filed a motion to tax costs, requesting that the court issue an order compelling Union Federal to pay all outstanding costs associated with the seizure and sale of the 6 Vehicles. By that time, the Sheriff was seeking $94,338 in storage fees. On July 9, 2012, the district court initially deferred judgment on the Sheriff's motion to tax costs, stating that the Sheriff had not established a standard and reasonable [49,529 La.App. 2 Cir. 3] rate for storage of the vehicles. The court expressed its concern with the amount of the storage charge in relation to the debt. Nevertheless, the court allowed the Sheriff to submit further ...


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