Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Collins Asset Group, LLC v. Hamilton

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

COLLINS ASSET GROUP, LLC Plaintiff-Appellant
v.
EDDIE J. HAMILTON Defendant-Appellee

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 610, 061 Honorable Craig O. Marcotte, Judge

          THE OAKES LAW FIRM, LLC By: Blake E. Oakes Counsel for Appellant

          BODENHEIMER, JONES, & SZWAK, LLC By: David A. Szwak Counsel for Appellee

          Before WILLIAMS, GARRETT, and THOMPSON, JJ.

          THOMPSON, J.

         This appeal arises from a suit by plaintiff, Collins Asset Group, LLC, against defendant, Eddie J. Hamilton, over sums due on an installment promissory note. The defendant filed an exception of prescription which was maintained by the trial court. The plaintiff now appeals the trial court's judgment. For the following reasons, we reverse and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On May 16, 2005, defendant, Eddie J. Hamilton ("Hamilton"), contemporaneously executed two promissory notes payable to Long Beach Mortgage Company ("Long Beach") in connection with purchasing certain immovable property located at 708 Culbertson Lane, Natchitoches, Louisiana. The first promissory note was for $133, 600 (the "First Note"), [1]and the second promissory note was for $33, 400 (the "Second Note").[2] The two separate notes were secured by two separate mortgages on the property. It is only the Second Note that is before this Court.

         On November 21, 2007, Deutsche Bank National Trust Company ("Deutsche Bank"), as trustee for Long Beach, declared Hamilton to be in default of the First Note, and filed a Petition for Executory Process Without Appraisement against him on the First Note only in the Tenth Judicial District Court in Natchitoches Parish. On March 26, 2008, the property was sold at sheriff's sale, without benefit of appraisement, to a third party bidder for $156, 000. The foreclosure action is not on appeal.

         Based upon the affidavit of Hamilton, no payments were made by him on the Second Note for a considerable amount of time before and after the foreclosure action. Hamilton intimates that his obligation under the Second Note-secured by the same immovable property as the First Note-had been extinguished by the foreclosure and sale of the property. The distinction of the creditor holding and not pursuing acceleration of the Second Note at the time of the foreclosure was apparently not appreciated by Hamilton.

         On August 15, 2014, the Second Note was transferred and assigned by an assignee of Long Beach to plaintiff, Collins Asset Group, LLC ("CAG"). CAG notified Hamilton of the assignment seeking periodic monthly payments of the principal starting on October 1, 2016. CAG alleges Hamilton failed to make any payments and it accelerated the Second Note. On July 16, 2018, CAG filed a petition in the First Judicial District Court for sums due on the Second Note against Hamilton, alleging a past due amount of $29, 654.25 plus legal interest, all fees, and costs.

         On July 25, 2018, Hamilton filed a pro se answer, generally denying the claims against him. On September 4, 2018, CAG filed a motion for summary judgment, including an affidavit from a CAG representative, the Second Note, and other relevant exhibits. On November 2, 2018, Hamilton filed an opposition to the motion for summary judgment, a reconventional demand, and an exception of prescription.[3] The motion for summary judgment was heard on November 19, 2018, and the trial court denied the motion without issuing reasons.

         CAG filed an opposition to the exception of prescription on December 5, 2018. According to CAG, the prescriptive period began in 2016 when it accelerated payments on the Second Note, well within the five-year prescriptive period under Louisiana law. The trial court heard the exception of prescription on December 17, 2018, ruled in favor of Hamilton by granting the exception of prescription, and dismissed CAG's claim and main demand with prejudice. The trial court issued written reasons for judgment on May 17, 2019.

         On January 15, 2019, CAG filed a motion for new trial on the exception of prescription. Hamilton filed an opposition to CAG's motion for new trial on February 4, 2019. In turn, on February 27, 2019, CAG filed a supplemental memorandum in support of its motion for new trial. In CAG's supplemental memorandum, CAG argued that the trial court's granting of Hamilton's exception was erroneous, as the "mortgage and underlying promissory note for the Foreclosure Action is not the same promissory note at issue" in this case. The motion for new trial was heard on March 4, 2019, and the trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.