Fidelity Bank v. Lloyd Vaughn

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-47

FIDELITY BANK

VERSUS

LLOYD VAUGHN

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 253,861-B
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

REVERSED AND REMANDED.

Richard A. Rozanski
Wheelis & Rozanski
2312 South MacArthur Drive
Alexandria, La 71315
(318) 445-5600
COUNSEL FOR DEFENDANT/APPELLANT:
Lloyd Vaughn

Barbara Bell Melton
Faircloth Melton, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR PLAINTIFF/APPELLEE:
Fidelity Bank

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PICKETT, Judge.

A personal surety appeals the trial court’s judgment granting summary

judgment against him in favor of the holder of two promissory notes for which he

guaranteed payment. As discussed below, the trial court’s judgment is reversed,

and the matter is remanded to the trial court.

FACTS

In 2013, Lloyd Vaughn entered into a business venture for the development

of a residential development in Fort Mitchell, Alabama. Mr. Vaughn signed a

personal guaranty guaranteeing the debt of Westgate Homes, L.L.C., which

consisted of two promissory notes, with The Bank of Georgia (The Bank).

Westgate defaulted on the promissory notes and filed for bankruptcy. In 2015, The

Bank sued Mr. Vaughn to collect the balance Westgate owed on the notes.

In October 2015, The Bank entered into receivership with the Federal

Deposit Insurance Corporation (FDIC). Pursuant to a purchase and assumption

agreement with the FDIC, Fidelity Bank acquired the assets of The Bank,

including enforcement rights of promissory notes payable to The Bank. The trial

court granted leave for Fidelity Bank to be substituted as plaintiff in place of The

Bank.

Thereafter, Fidelity Bank filed two motions for summary judgment. One

motion sought judgment against Mr. Vaughn as guarantor of Westgate’s debt. The

second motion sought dismissal of reconventional demands Mr. Vaughn asserted

in his answer to the petition. The trial court denied both motions after hearings

held in July 2016, finding that the parties had not had adequate time to conduct

discovery.

In May 2017, Fidelity Bank substituted its counsel, and the new counsel

filed a peremptory exception of no cause of action to have Mr. Vaughn’s

reconventional demands dismissed. The trial court sustained the exception, and

Mr. Vaughn did not appeal the judgment dismissing those demands.

In April 2018, Fidelity Bank filed another motion for summary judgment to

enforce Mr. Vaughn’s guaranty of Westgate’s debt. After a hearing, the trial court

granted the motion and signed a judgment granting judgment in favor of Fidelity

Bank in the principal amount of $373,207.92, together with legal interest, late fees,

attorney fees, and judicial interest. Mr. Vaughn filed a motion for new trial, which

was denied; he then filed a motion for appeal.

ASSIGNMENT OF ERROR

Mr. Vaughn’s sole assignment of error states:

The [t]rial [c]ourt erred in granting Fidelity Bank’s [m]otion for
[s]ummary [j]udgment where genuine issues of material fact existed
as to whether Lloyd Vaughn’s Guaranty was extinguished by breach
by The Bank . . . (and Fidelity Bank as the assignee of the FDIC) of
its contractual obligation of good faith and fair dealing and
impairment of collateral securing the Westgate Homes, L.L.C. loan

DISCUSSION

Jurisdiction

Fidelity Bank asserts that this court does not have jurisdiction to consider

Mr. Vaughn’s assigned error because Mr. Vaughn designated the judgment

denying his motion for a new trial by title and date as the judgment being appealed

in his motion for appeal. Contrary to that designation, Mr. Vaughn addresses only

the trial court’s judgment granting Fidelity Bank’s motion for summary judgment

in his assignment of error and his arguments to this court.

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We addressed this issue in Babineaux v. University Medical Center, 15-292,

p. 5 (La.App. 3 Cir. 11/4/15), 177 So.3d 1120, 1123, explaining:

[W]hen the pleadings and briefs on appeal indicate that an appellant
actually intended to appeal from a final judgment on the merits, the
appeal could be maintained as being taken from the judgment on the
merits. See Garrett v. City of Lake Charles, 499 So.2d 956 (La.App.
3 Cir.1986) (appeal dismissed where the intent was to appeal the dated
judgment denying the plaintiff’s motion for a new trial).

See also Fuqua v. Gulf Ins. Co., 525 So.2d 190 (La.App. 3 Cir. 1988).

Fidelity Bank argues that McClure v. City of Pineville, 05-1460 (La.App. 3

Cir. 12/6/06), 944 So.2d 805, writ denied, 07-43 (La. 3/9/07), 949 So.2d 446,

requires that we dismiss Mr. Vaughn’s appeal. In McClure, the appellant

designated the judgment on his motion for new trial by date and title as the

judgment being appealed, and its actions did not evidence that it misstated the

judgment it was appealing. Mr. Vaughn’s arguments clearly evidence his intent to

appeal the judgment granting summary judgment. McClure has no application

here.

Summary Judgment

Appellate courts review summary judgments de novo, using the same

criteria as the trial court. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La.

2/26/08), 977 So.2d 839. To succeed on a motion for summary judgment, the

moving party must show that there are no genuine issues of material fact and that

he “is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). “A

fact is ‘material’ when its existence or nonexistence may be essential to plaintiff’s

cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.

7/5/94), 639 So.2d 730, 751.

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“The only documents that may be filed in support of or in opposition to the

motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions.”

La.Code Civ.P. art. 966(A)(4). “Supporting and opposing affidavits shall be made

on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the

matters stated therein.” La.Code Civ.P. art. 967(A).

Personal knowledge means something the witness actually saw
or heard, as distinguished from what he learned from some other
person or source. The purpose of the requirement of “personal
knowledge” is to limit the affidavit to facts which the affiant saw,
heard, or perceived with his own senses. Portions of affidavits not
based on personal knowledge of the affiant should not be considered
by the trial court in deciding a motion for summary judgment.

Denbury Onshore, L.L.C. v. Pucheu, 08-1210, p. 18 (La.App. 3 Cir. 3/11/09), 6

So.3d 386, 398, (quoting Hibernia Nat’l Bank v. Rivera, 07-962, pp. 8-9 (La.App.

5 Cir. 9/30/08), 996 So.2d 534, 539-40 (citations omitted)).

When considering a motion for summary judgment, courts are not to

evaluate the weight of the evidence, but to determine whether there is a genuine

issue of triable fact. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764.

Summary judgments are now favored; nonetheless, “factual inferences reasonably

drawn from the evidence must be construed in favor of the party opposing the

motion, and all doubt must be resolved in the opponent’s favor.” Willis v.

Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

The Merits

In its motion for summary judgment, Fidelity Bank sought judgment against

Mr. Vaughn on the basis that he guaranteed Westgate’s two promissory notes. It

supports its motion with documentation evidencing Westgate’s promissory notes,

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Mr. Vaughn’s guaranty of the notes, the FDIC’s assignment of the notes to it, and

an affidavit attesting to the outstanding balances due thereon. Mr. Vaughn does

not dispute that he guaranteed Westgate’s indebtedness. Instead, he argues that

The Bank engaged in actions that caused the real property securing Westgate’s

indebtedness to be sold below market value. Citing La.Civ. Code art. 3062, 1 he

asserts that The Bank’s actions impaired the value of the real property securing

Westgate’s indebtedness and extinguished his suretyship. Moreover, he contends

that The Bank’s actions violated its obligations of good faith and fairness that are

imposed by Louisiana law. He supports his claims with his personal affidavit.

Fidelity Bank argues that the D’Oench, Duhme doctrine set forth in

D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676 (1942), and codified

in 12 U.S.C. § 1823(e), defeats Mr. Vaughn’s defense. In D’Oench, Duhme, the

Supreme Court held that “a borrower [cannot assert] against the FDIC defenses

based upon secret or unrecorded ‘side agreements’ that altered the terms of facially

unqualified obligations.” Bell & Murphy & Assocs., Inc. v. Interfirst Bank

Gateway, N.A., 894 F.2d 750, 753 (5th Cir.), cert. denied, 498 U.S. 895, 111 S.Ct.

1
Louisiana Civil Code Article 3062 (emphasis added) states:

The modification or amendment of the principal obligation, or the
impairment of real security held for it, by the creditor, in any material manner
and without the consent of the surety, has the following effects.

An ordinary suretyship is extinguished.

A commercial suretyship is extinguished to the extent the surety is
prejudiced by the action of the creditor, unless the principal obligation is one
other than for the payment of money, and the surety should have contemplated
that the creditor might take such action in the ordinary course of performance of
the obligation. The creditor has the burden of proving that the surety has not been
prejudiced or that the extent of the prejudice is less than the full amount of the
surety’s obligation.

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244 (1990). As codified, the doctrine grants the FDIC and its assignees the power

to void any agreement which tends to diminish or defeat their interest:

[I]n any asset acquired by it as a receiver unless such agreement: (1) is
in writing; (2) was executed by the depository institution and any
person claiming an adverse interest thereunder, including the obligor,
contemporaneously with the acquisition of the asset; (3) was approved
by the depository institution’s board of directors or its loan
committee; and (4) has been continuously an official record of the
depository institution.

Johnson v. Drury, 99-608, 99-1071 p. 7 (La.App. 5 Cir. 6/2/00), 763 So.2d 103,

108.

Fidelity Bank contends the D’Oench, Duhme doctrine requires that The

Bank’s alleged breach of its contractual obligations of good faith and fair dealing,

which resulted in the claimed impairment of Westgate’s security for its debt, must

be evidenced on the face of Westgate’s loan documents maintained by The Bank or

they fail. Mr. Vaughn counters that the D’Oench, Duhme doctrine applies only to

oral agreements, not to obligations imposed by law. He cites Texas Refrigeration

Supply, Inc. v. FDIC, 953 F.2d 975, 981 (5th Cir. 1992) (alteration in original),

which held, in pertinent part:

D’Oench, Duhme does not of itself thwart the assertion of rights
for relief from wrongful acceleration and unreasonable sale at
foreclosure. See Garrett v. Commonwealth Mortgage Corporation of
America, 938 F.2d 591, 595 (5 Cir.1991) (“[N]either section 1823(e)
nor the D’Oench, Duhme doctrine prevents plaintiffs from asserting
claims or defenses that do not depend on agreements.” (emphasis
supplied)). We repeat, D’Oench, Duhme only protects the FDIC and
federally-created bridge banks from oral agreements that for some
reason do not become part of the loan record (usually, oral
agreements).

Obligations about timely acceleration and the disposal of
collateral are implicit in every promissory note. These covenants are
inferred in every such loan agreement. See International Bank, N.A. v.
Morales, 736 S.W.2d 622, 624 (Tex.1987); Kierstead v. City of San
Antonio, 643 S.W.2d 118, 121 (Tex.1982). And because they are an
integral element of the relationship between every borrower and

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lender, they cannot be said to be secret or unwritten in the D’Oench,
Duhme sense.

Morris v. Azzi, 866 F.Supp. 149 (D.N.J. 1994), considered and rejected

Fidelity Bank’s argument that any basis for defeating its claims must be evidenced

on the face of The Bank’s loan documents. In Morris, the plaintiff, a second

mortgagee, asserted that the failed financial institution which held the first

mortgage on the property at issue breached its obligation to act as a prudent

mortgage servicer, causing damage to the plaintiff’s secondary interest in the

property. The plaintiff argued that the failed financial institution breached the duty

of good faith and fair dealing imposed by state law. Consequently, the plaintiff

urged that its claim did not arise from an oral or other side understanding between

him and the failed institution and was not subject to the limitations of D’Oench,

Duhme and 12 U.S.C. § 1823(e). The court explained:

The policy reasons behind D’Oench, Duhme and 12 U.S.C. §
1823(e)—ensuring that examiners will be able to make reliable
evaluations of bank records, ensuring mature consideration of unusual
loan transactions by senior bank officials, preventing collusion, and
ensuring that banking authorities will not be misled, see Langley [v.
FDIC, 484 U.S. 86, 108 S.Ct. 396 (1987)]—cannot logically be
applied to bar assertion of such claims; “neither section 1823(e) nor
the D’Oench, Duhme doctrine prevents plaintiff[] from asserting
claims or defenses that do not depend on agreements.” Garrett v.
Commonwealth Mortgage Corp., 938 F.2d 591, 595 (5th Cir.1991).
...

In Texas Refrigeration Supply, Inc. v. FDIC, 953 F.2d 975 (5th
Cir.1992), the Fifth Circuit held that D’Oench, Duhme did not
preclude a borrower from asserting claims for wrongful acceleration
and unreasonable disposal of collateral at foreclosure. Because the
claims did not arise from a secret or unrecorded agreement but rather
arose from the implied good faith obligation part of every contract
under state law, the claims would be apparent to the bank examiners
considering the failed thrift’s documents in light of relevant law;
D’Oench, Duhme and § 1823(e) were, accordingly, held inapposite.
See also . . . In re Beitzell, 163 B.R. 637 (Bankr.D.D.C.1993) (holding

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D’Oench, Duhme does not bar state law claim based on breach of an
implied covenant of good faith and fair dealing).

Morris, 866 F.Supp. at 155-56 (emphasis added) (second alteration in original).

The Morris court also addressed and rejected Fidelity Bank’s argument that

FDIC v. Giammettei, 34 F.3d 51 (2d Cir.1994), is to the contrary, noting that

Giammettei involved allegations of breach of the duty of good faith and fair

dealing in the inducement of the execution of the notes at issue, whereas Bietzell,

163 B.R. 637, involved allegations arising from the breach of the implied covenant

of good faith and fair dealing in the performance of obligations under the note at

issue. See 866 F.Supp. 149, n.6. Mr. Vaughn makes the same allegations made in

Bietzell with regard to The Bank’s disposition of Westgate’s properties that

secured its loans. Giammettei has no application here.

Fidelity Bank also contends that Mr. Vaughn’s affidavit does not establish

that it is based upon personal knowledge and contains only self-serving statements

that are insufficient to rebut its motion for summary judgment and supporting

evidence. Unifund CCR Partners v. Perkins, 12-1851 (La.App. 1 Cir. 9/25/13),

134 So.3d 626, 631-32 (citations omitted), addressed the issue of the personal

knowledge required for summary judgment affidavits, explaining:

Article 967’s requirement of personal knowledge is not
satisfied by the mere statement that the affidavit is made on “personal
knowledge” since that would tend to make the affiant both judge and
witness. The requirement that the affidavit show affirmatively that the
affiant is competent to testify to the matters stated therein enables the
court to make a determination as to the competency of the affiant as a
witness to the material fact at issue. An affirmative showing of
competency cannot be established without a predicate showing of
personal knowledge. Otherwise, personal knowledge may be based on
hearsay or other incompetent evidence.

Mr. Vaughn’s affidavit affirmatively shows that he personally

communicated with his business partner and Russell Byrd, a former board member

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of The Bank who is now a vice-president of the Fidelity Bank, regarding the

operations of Westgate, its loans, and the property securing Westgate’s

indebtedness. We find these statements establish that he has personal knowledge

of the statements made therein.

The following statements in Mr. Vaughn’s affidavit are pertinent to Fidelity

Bank’s claim that his statements are self-serving and, therefore, insufficient to

defeat summary judgment:

16. Westgate was required to provide the identities of prospective lot
buyers to The Bank . . . .

17. I was required to give both personal financial information as well
as prospective buyer information directly to Russell Byrd.

18. Russell Byrd used the provided information to identify, negotiate
with, and sell property in direct competition with Westgate through
bank foreclosure properties and competing businesses that he had a
direct stake in.

We consider these statements in light of this court’s determination that

“[a]ffidavits that are devoid of specific underlying facts to support a conclusion of

ultimate ‘fact’ are not legally sufficient to defeat summary judgment.” Cressy v.

Huffines Hyundai McKinney, LP, 16-712, p. 10 (La.App. 3 Cir. 2/22/17), 212

So.3d 683, 690, writ denied, 17-510 (La. 5/19/17), 220 So.3d 751 (quoting Dumas

v. Angus Chem. Co., 31,969, p. 7 (La.App. 2 Cir. 8/20/99), 742 So.2d 655, 661).

We also observe that a litigant’s self-serving affidavit may satisfy the requirements

of La.Code Civ.P. art. 967 and also create a genuine issue of material fact

sufficient to defeat a motion for summary judgment. Weddborn v. Doe, 15-1088

(La.App. 4 Cir. 5/4/16), 194 So.3d 80.

Although self-serving in some respects, Mr. Vaughn’s affidavit contains

specific, underlying facts regarding his personal dealings with his partner in

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Westgate, Mr. Byrd, and Mr. Byrd’s use of information that Mr. Vaughn provided

him to allow The Bank to compete against Westgate. We find Mr. Vaughn’s

affidavit satisfies the requirements of La.Code Civ.P. art. 967 and creates a

genuine issue of material fact as to whether The Bank’s disposition of Westgate’s

security constitutes an impairment sufficient to extinguish Mr. Vaughn’s

suretyship as provided in La.Civ.Code art. 3062.

Fidelity Bank argues that although Mr. Vaughn argued the issue of good

faith before the trial court, he did not cite La.Civ.Code arts. 1759 and 1983 in

support of his arguments; therefore, we should disregard these arguments on

appeal. Louisiana Civil Code Article 3062 cross references La.Civ.Code art.

1759, 2 which provides that good faith governs the performance of obligations.

Article 3062 does not cross reference La.Civ.Code art. 19833; however, it requires

good faith in the performance of contracts. Article 3062 does not use the term

“good faith,” yet we believe the duty of good faith is inherent in the relief provided

to the surety whose rights have been impaired. Additionally, we observe that “The

appellate court shall render any judgment which is just, legal, and proper upon the

record on appeal.” La.Code Civ.P. art. 2164. Accordingly, we find that Mr.

Vaughn’s failure to cite La.Civ.Code arts. 1759 and 1983 in its brief before the

trial court is not fatal to his arguments to this court.

Fidelity Bank failed to demonstrate that there are no genuine issues of

material fact and that it is entitled to judgment as a matter of law, and the trial

court erred in granting summary judgment in its favor.

2
Louisiana Civil Code Article 1759 states: “Good faith shall govern the conduct
of the obligor and the obligee in whatever pertains to the obligation.”
3
Louisiana Civil Code Article 1983 provides, in pertinent part: “Contracts must
be performed in good faith.”

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DISPOSITION

For these reasons, the trial court’s judgment granting summary judgment in

favor of Fidelity Bank is reversed, and the matter is remanded for further

proceedings. All costs of this appeal are assessed to Fidelity Bank.

REVERSED AND REMANDED.

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