Gelpi v. Burke

Decision Date08 November 1978
Docket NumberNo. 9454,9454
Citation364 So.2d 1064
PartiesMrs. Joyce Perez GELPI v. Richard J. BURKE, Thomas P. Eustis and Gregory E. Eustis.
CourtCourt of Appeal of Louisiana — District of US

W. Eric Lundin, III, Duke & Porterie, New Orleans, for plaintiff.

Clarence F. Favret, Jr., Favret, Favret & Demarest, New Orleans, for defendant Richard J. Burke.

Edmond H. Fitzmaurice, Jr., Provensal & Fitzmaurice, New Orleans, for defendants Thomas P. Eustis and Geoffrey E. Eustis.



Plaintiff Louisiana domiciliary, the assignee of a Texas judgment for $143,795.62 owed to a Texas bank on a Texas mortgage loan, appeals from a summary judgment in Louisiana refusing further execution of the judgment.

Not at issue is the unquestionable entitlement of the Texas judgment to full faith and credit, U.S.Const. art. 4 § 1, the same in Louisiana as in Texas, 28 U.S.C. § 1738. But that a judgment is entitled to full faith and credit does not prevent it from being extinguished. Payment of a foreign judgment (either in the foreign state or elsewhere) discharges the judgment in the foreign state, and upon any later attempt to execute the judgment discussion of constitutional issues of full faith and credit would be pointless. Other means of extinguishment or satisfaction effective in the state of rendition to discharge a judgment are equally effective in all states, without taking one whit from the judgment's entitlement to full faith and credit.

The core question in this case is whether this perfectly good Texas judgment, absolutely entitled to recognition by Louisiana, has been extinguished in Texas. Does the "purchase" of the judgment by the mother of two of the three individual judgment debtors constitute its Payment (by her for them), or, if not, is the judgment discharged by her execution of the judgment by mortgage-foreclosure sale to her sons for $10,000 of the property admittedly bought for $176,000 and allegedly worth $200,000?

We set aside the summary judgment because there is dispute over the material facts concerning both the value of the property and the mother's relationship to the sons as to her acting with or for them in "buying" the Texas judgment from the bank and in foreclosing the mortgage. (There are possibly other unanswered questions of fact, such as what was the agreement, as among themselves, express or implied, as to the "shares" of the two sons and Burke of the secondary liability on the notes. The two sons apparently supplied 100% Of the corporate funds, although Burke was a 50% Shareholder.)

There are allegations of the mother's involvement with the sons and defendant Burke from before the incorporation by the sons and Burke of defendant Ben Development Co., Inc. and until recent efforts by her, acting in concert with her sons, to destroy the corporation because of some disagreement between Burke and the sons. These allegations, including that the mother purchased and foreclosed on other corporate indebtednesses, lend support to the allegation that the mother acted for or with the sons in "buying" the bank's judgment in order to harm Burke. If the sons themselves bought that judgment (or paid it off), they might have been entitled to recover Burke's share of their secondary liability but equity would not tolerate that they force Burke to pay his share of the land while their Texas maneuvers deprive him of all interest in it for virtually no credit against the price.

Burke argued the applicability in principle of Louisiana's deficiency judgment statute, La.R.S. 13:4106-4107. That statute declares a public policy so strong that its provisions "can not . . . be waived by a debtor": a judicial sale (In Louisiana...

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2 cases
  • Purchase Corp. v. Starkes
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 26, 1990
    ...would not apply Louisiana deficiency judgment statutory requirements of appraisal and sale to a foreign judgment. Gelpi v. Burke, 364 So.2d 1064, 1066 (La.App. 4th Cir.1978). Nor would Louisiana courts apply the requirements of the deficiency judgment act to other proceedings on property lo......
  • First Commerce Realty Investors v. K-F Land Co.
    • United States
    • Texas Court of Appeals
    • June 3, 1981 determined under Texas Law that this action for deficiency is also properly a matter to be determined by Texas law. (3) Citing Gelpi v. Burke, 364 So.2d 1064 (La.Ct. of App. 4th Cir.1978), appellants assert that Louisiana does not apply its Deficiency Judgment Act to a Texas real estate ......

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