Sanders v. Pasternack

• Decision Date: 25 June 1980
• Docket Number: No. 7633,7633
• Citation: 386 So.2d 685
• Parties: Mary SANDERS, Plaintiff-Appellee, v. Joe PASTERNACK, Jr., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 685

386 So.2d 685

Mary SANDERS, Plaintiff-Appellee, v. Joe PASTERNACK, Jr., Defendant-Appellant.

No. 7633.

Court of Appeal of Louisiana, Third Circuit.

June 25, 1980.

Rehearing Denied Aug. 22, 1980.

Roy S. Halcomb, Sr., Ferriday, for defendant-appellant.

Ernest L. Johnson, Baton Rouge, for plaintiff-appellee.

Before CULPEPPER, SWIFT and STOKER, JJ.

SWIFT, Judge.

Plaintiff, Mary Sanders, instituted this action to have a foreclosure sale of her property annulled, asserting it was invalid because the price was insufficient to discharge an existing superior mortgage as required by LSA-C.C.P. 2337.¹ Following a hearing, the trial judge decreed the sale a nullity. Defendant, Joe Pasternack, Jr., has perfected this appeal.

On August 24, 1968, plaintiff executed a promissory note in which she agreed to pay the sum of $700 to Joe Pasternack, Jr. To secure the note, she signed an act of mortgage on a portion of Lot 57 in Helena Plantation Subdivision in Concordia Parish which was filed for record December 7, 1971.

Following her default on the note, defendant obtained judgment on February 9, 1973, against Ms. Sanders in the sum of $622.35, plus eight per cent per annum interest from June 4, 1970, and 25 per cent of principal and interest as an attorney's fee. The judgment also ordered that the mortgage securing the note be recognized and maintained. The mortgaged property was seized on April 17, 1973, pursuant to a writ of fi fa. On June 13, 1973, it was adjudicated to Mr. Pasternack, the seizing creditor, for the sum of $1,000.00, two thirds of its appraised value. He tendered the sum of $149.00, the costs of the sale, and retained the remainder.

The mortgage certificate obtained by the sheriff in connection with the sale reflected a mortgage was executed by Ms. Sanders on the property in question in favor of the East Louisiana Mortgage Co., Inc., (East Louisiana Company) to secure a promissory note in the sum of $2,310.00, dated July 11, 1968, payable in 47 monthly installments of $48.12 and a final payment of $48.36 beginning August 4, 1968. This mortgage was filed for record July 12, 1968. Thus, it is clear that East Louisiana Company's mortgage was superior to the mortgage granted the defendant. The latter contends, however, that the superior mortgage had been extinguished by payment of the note secured thereby prior to the date of the judicial sale.

The plaintiff testified that she paid off East Louisiana Company's mortgage note in 1974. However, she produced receipts from East Louisiana Company which show that on July 6, 1972, she had actually paid this mortgagee sufficient sums to extinguish the indebtedness secured by is mortgage.

The record indicates that Ms. Sanders executed two additional promissory notes to East Louisiana Company in 1970. One note was for $275.00, payable in 11 monthly installments of $25.00 beginning April, 1970. The second note was for $54.00, payable on demand. Neither of the latter notes were secured by a mortgage.

The receipts, which Ms. Sanders produced and said were for payments on her house that was...