Bank One, Nat. Ass'n v. Velten

• Decision Date: 17 August 2005
• Docket Number: No. 2004-CA-2001.,2004-CA-2001.
• Citation: 917 So.2d 454
• Parties: BANK ONE, NATIONAL ASSOCIATION, as Trustee v. Marjorie Madere VELTEN aka Marjorie Madere Hoffman Velten.
• Court: Louisiana Supreme Court

917 So.2d 454

BANK ONE, NATIONAL ASSOCIATION, as Trustee v. Marjorie Madere VELTEN aka Marjorie Madere Hoffman Velten.

No. 2004-CA-2001.

Court of Appeal of Louisiana, Fourth Circuit.

August 17, 2005.

Rehearing Denied December 9, 2005.

COPYRIGHT MATERIAL OMITTED

Charles H. Heck, Jr. Dean Morris, L.L.P. Monroe, Louisiana for Plaintiff/Appellee.

Patrick D. Breeden, New Orleans, Louisiana, for Defendant/Appellant.

(Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).

JAMES F. MCKAY III, Judge.

The defendant/appellant, Marjorie Madere Velten a/k/a Marjorie Madere Hoffman Velten (Marjorie Velten), appeals the district court's judgment granting a partial summary judgment in favor of the plaintiff/appellee, Bank One, National Association, As Trustee (Bank One). The trial court held that there were no genuine issues of material fact concerning the defendant's liability on the promissory note and security agreements and that Bank One was entitled to enforce its security right in accordance with Louisiana Law. Furthermore, the trial court held that the points and fees, as evidenced by the disclosure statement, did not exceed the statutory eight percent (8%) of the total loan amount and therefore there was no genuine issue of material fact regarding the question of "high rate loan" pursuant to the Truth in Lending Act as amended by the Home Ownership and Equity Loan Protection Act (HOEPA), 15 U.S.C.A. et seq. Lastly, the trial court held that Bank One was not required to make any special disclosures pursuant to the act, and consequently Marjorie Velten does not receive the three (3) year rescission window. We agree.

FACTS AND PROCEDURAL HISTORY

This case evolves from the purchase and foreclosure proceeding against Marjorie Velten referencing the subject residence located at 5524 Canal Boulevard. On December 13, 1999, the appellant initiated a promissory note, recorded as instrument No. 558526, in favor of Aegis Mortgage Corporation d/b/a/ UC Lending (Aegis) in the amount of $91,300.00, interest thereon at 9.363% per annum, and guaranteed by an act of mortgage securing property owned by the appellant. The appellant, made payments on this loan for approximately 1½ years before defaulting by failing to pay her mortgage installments.¹ On April 22, 2002, Bank One² filed a petition for executory process seeking to enforce the aforementioned note and mortgage agreement based on the appellant's default. On July 16, 2002, almost two and one half years after the initial loan was perfected, Marjorie Velten, through her attorney, sent a letter to Bank One advising that she was rescinding her loan. She advanced a defense alleging that the loan was promulgated pursuant to the Homeowner Equal Protection Act (HOEPA) 15 U.S.C.A. 1602,³ and argued that she had not received specific disclosures, as required by statute. She further argued that the applicable Act extended the time limit for rescission up to three years from the date that the loan originated. In response to this letter Bank One advised the appellant that they would not rescind the loan and would proceed with their foreclosure action.

On July 26, 2002, the appellant filed a petition for an order suspending the seizure and sale order and/or preliminary injunction and/or permanent injunction and/or damages. The hearing was set two days before the scheduled Sheriff's sale of the subject property. The trial court granted the preliminary injunction thereby canceling the Sheriff's sale of this property. Bank One took a writ to this Court in case No.2002-C-2020, which we dismissed as untimely.⁴ On December 5, 2002, pursuant to L.C.C.P art. 2644, Bank One converted the original executory proceeding to an ordinary proceeding. On November 4, 2003, Bank One filed a motion for summary judgment. On February 19, 2004, the appellant filed an opposition. On June 18, 2004, the matter was heard and a decision was rendered in favor of Bank One granting their motion for summary judgment, finding that no genuine issues of material fact were in dispute, and that the subject loan was not a HOEPA loan.

ASSIGNMENTS OF ERROR

The appellant advances numerous issues for review asserting that the trial court erred in granting summary judgment in favor of Bank One. The appellant asserts that the law of the case doctrine applies to this matter. We disagree with this assertion. Additionally, the other issues asserted by the appellant can be aggregated into one, that being whether this is a loan pursuant to HOEPA. The trial court held that it was not a HOEPA loan and we can find no reason in the record to disagree with this holding.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1182; Alexis v. Southwood Ltd. Partnership, 2000-1124, p. 2 (La.App. 4 Cir. 7/18/01), 792 So.2d 100, 101. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises, Inc. v. First National Bank of Commerce, 98-2004-0467 p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must "make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial." La. C.C.P. art. 966(C).

DISCUSSION

The appellant argues that the law of the case doctrine applies to the instant matter. We disagree.

Although the appellant fails to make a clear argument for this assignment of error, it appears that the appellant's argument is based on the fact that the trial court initially issued a preliminary injunction to thwart a sheriff's sale of the subject property. The appellee filed a writ with this Court, which we dismissed as untimely, never addressing the merits of the case.⁵ Consequently, the law of the case doctrine argument cannot hold, as a preliminary injunction is not a final judgment, but merely an interlocutory order. Key to this issue is the fact, as previously noted that Bank One had converted the matter from an executory proceeding to an ordinary proceeding and obtained a partial summary judgment which in the instant matter is a final judgment.

A writ of preliminary injunction is essentially an interlocutory order issued in a summary proceeding incidental to the main demand for permanent injunctive relief. It is designed to and serves the purpose of preventing irreparable harm by preserving the status quo between the parties pending a determination on the merits of the controversy. Bally's Louisiana, Inc. v. Louisiana Gaming Control Board, 99-2617, p. 7 (La.App. 1 Cir. 1/31/01), 807 So.2d 257, 263; Freeman v. Treen, 442 So.2d 757, 763 (La.App. 1 Cir.1983). The principal demand, as opposed to the injunction, is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the injunction may touch upon or decide issues regarding the merits. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 494 (La.1979).

The law of the case doctrine refers to "(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case." Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973); Louisiana Land and Exploration Co. v. Verdin, 95-2579, pp. 3-4 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65. This doctrine "may bar redetermination of a question of law or a mixed question of law and fact during the course of a judicial proceeding." 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 6.7 (1999). Thus, the law of the case doctrine is the proper procedural principle, as opposed to res judicata, for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Posey v. Smith, 453 So.2d 1016 (La.App. 3 Cir.1984). The policy reasons behind this doctrine include: (i) avoiding relitigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (1971).

Unlike the statutory doctrine of res judicata, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly. "Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice." Petition of Sewerage and Water Bd., 278 So.2d at 83. In addition to the latter exception for palpable error, the jurisprudence has recognized two other...