Raymond v. United Federal Sav. and Loan Ass'n

• Decision Date: 13 January 1976
• Docket Number: No. 7149,7149
• Citation: 325 So.2d 719
• Court: Court of Appeal of Louisiana — District of US
• Parties: James P. RAYMOND, Jr. v. UNITED FEDERAL SAVINGS & LOAN ASSOCIATION.

Page 719

325 So.2d 719

James P. RAYMOND, Jr. v. UNITED FEDERAL SAVINGS & LOAN ASSOCIATION.

No. 7149.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 13, 1976.

Schumacher, McGlinchey, Stafford & Mintz, New Orleans (Donald R. Mintz), New Orleans, for plaintiff-appellant.

James A. Smith, Lake Charles, for defendant-appellee.

Before SAMUEL, LEMMON and SCHOTT, JJ.

SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for damages based upon allegations that defendant breached a collateral pledge agreement between the parties.

In connection with a mortgage loan made by defendant to Mr. and Mrs. Errol J. Meadoux in January, 1972, plaintiff deposited $3,000 in a savings account with defendant and pledged this sum to secure the mortgage loan to Meadoux. The pledge agreement contained the following:

'. . . It is hereby expressly agreed in consideration of the aforesaid matters that before this pledge is used to remedy any delinquency in the payment of said indebtedness, said association shall give the undersigned pledgor notice of such delinquency at the address stated above or any other address supplied by the pledgor to the pledgee in writing by mail; and the depositing of such notice in the United States mail, postage prepaid, shall constitute service of such notice upon the undersigned pledgor. After such notice and within 30 days thereof the undersigned pledgor shall have the privilege (1) of paying the amount of such delinquency or (2) of taking an assignment of said note and mortgage, without recourse, for the unpaid balance thereof, including such advances and costs, upon payment of such amount. If within 30 days of such notice such delinquency is not remedied and such loan is not bought and transferred to the undersigned pledgor, then any officer of said Association is appointed attorney-in-fact for the undersigned pledgor and is expressly authorized to execute a withdrawal request against said Savings Account in the name of the undersigned pledgor and to withdraw any or all of the funds in said Savings Account. . . . It is specifically agreed that at the option of the pledgee, it may exhaust the real estate security securing said indebtedness and retain this pledge to secure any deficiency and acting as above provided but without further notice, apply sold Savings Account toward the liquidation of any deficiency, provided 30 days' notice is given of the foreclosure sale of the real estate security.'

By August of 1972 the loan account had become delinquent provoking a meeting in February, 1973, between plaintiff and defendant's representative and Meadoux at which it was agreed that Meadoux would make two payments per month beginning in March, 1973, until the account was brought up to date. Defendants' representative also agreed to notify plaintiff in the event Meadoux failed to comply with his agreement. On February 14, 1973, a letter was sent to plaintiff confirming this understanding, including a statement that 'As requested, notification will be forwarded to you when delinquency occurs.'

The two payments were made in each of the months of March, April and May, 1973, but none thereafter with the result that the matter was referred by defendant to its attorney in October, 1973, for foreclosure on the mortgage and execution on the pledge agreement. On November 13, 1973, the foreclosure proceedings were filed and in January, 1974, defendant withdrew $3,000 from plaintiff's savings account in execution of the pledge.

Plaintiff's charge that defendant breached the pledge agreement is based upon defendant's failure to notify him of the delinquencies in Meadoux's account and failing to notify him that the mortgaged property would be seized and sold.

Plaintiff testified that he was never contacted by anyone at the defendant's Savings and Loan Association from the time of the meeting in February, but he acknowledged that he spoke to defendant's attorney in August or September of 1973, and he was told that the account 'looked bad; that something would have to be done.' He stated that he first learned of the forfeiture of the pledge from his account when he went to defendant's office in February, 1974, to have his interest posted to his pass book. He specifically denied that he received any letter from defendant notifying him that the account was delinquent.

James A. Smith, attorney for defendant, testified that upon his receipt of the account for foreclosure he mailed to plaintiff a letter on October 8, 1973, providing as follows:

'This is to notify you, in accordance with the Collateral Pledge Agreement executed on January 5, 1972, that the mortgage account of Mr. and Mrs. Errol J. Meadoux at United Federal Savings and Loan Association is seriously delinquent.

'Mr. &...