Llp Mortg., Ltd. v. Food Innovisions, Inc., 08-CA-422.

• Court: Court of Appeal of Louisiana (US)
• Citation: 997 So.2d 628
• Decision Date: 28 October 2008
• Docket Number: No. 08-CA-422.,08-CA-422.
• Parties: LLP MORTGAGE, LTD. v. FOOD INNOVISIONS, INC., Leon J. Cabes & Cheryl S. Cabes.

997 So.2d 628 LLP MORTGAGE, LTD.
v.
FOOD INNOVISIONS, INC., Leon J. Cabes & Cheryl S. Cabes. No. 08-CA-422. Court of Appeal of Louisiana, Fifth Circuit. October 28, 2008.

Mark C. Landry, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.

David F. Waguespack, Attorney at Law, New Orleans, LA, for Defendants/Appellees.

Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

WALTER J. ROTHSCHILD, Judge.

This is an appeal from a trial court ruling granting defendants' exception of prescription. For the reasons which follow, we affirm.

On May 25, 2006, LLP Mortgage, Ltd., filed the present petition against Food Innovisions, Leon Cabes, Jr., and Cheryl Cabes, alleging that plaintiff was the holder of certain notes which were executed by defendants in 1995.¹ These notes were

997 So.2d 629

secured by two mortgages executed by Leon and Cheryl Cabes. Plaintiff alleged that the notes were in default and prayed for acceleration of all sums due thereon. Defendants filed an answer generally denying the allegations of the petition. Thereafter, defendants brought a peremptory exception of prescription. Following a hearing on November 26, 2007, the trial court maintained the exception and dismissed plaintiffs petition. This appeal followed.

The trial court ruled in favor of defendants that the promissory notes were prescribed pursuant to federal law, and plaintiff does not challenge this ruling. The sole issue presented for our review is whether the mortgages executed by Leon and Cheryl Cabes remain viable and enforceable notwithstanding the prescription of the underlying promissory notes.

At the exception hearing at the trial level, LLP argued that even assuming the promissory notes are prescribed under federal law, the mortgages are enforceable, as there is no federal rule for prescription of a mortgage. LLP relied on Farmers Home Administration v. Muirhead, 42 F.3d 964 (5th Cir.Miss.1/24/95), which held that a federal lien on property is not subject to state law statutes of limitations and is not subject to any prescriptive periods. Thus, LLP argued that pursuant to federal law the mortgages in this case are imprescriptable.

However, in the present case, defendants are not arguing that the mortgages are prescribed or are barred by a statute of limitations. Rather, defendants argue that the mortgages have been extinguished and are therefore unenforceable because the underlying notes have prescribed under both state and federal law. In support of this argument, defendants cite La. C.C. art. 3282, which provides:

Mortgage is accessory to the obligation that it secures. Consequently, except as provided by law, the mortgagee may enforce the mortgage only to the extent that he may enforce any obligation it secures.

The trial court agreed with defendants and found the mortgages to be unenforceable. By judgment dated November 26, 2007, the court granted defendants exception of prescription and dismissed plaintiff's suit for the reasons orally assigned. It is from this judgment that plaintiff now appeals.

The mortgages in this case are entitled "Louisiana Combination Mortgage" and each...