Td Auto Finance, LLC v. Perry W. Myles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-498

TD AUTO FINANCE, LLC
VERSUS
PERRY W. MYLES

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20163142
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********
JONATHAN W. PERRY
JUDGE
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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry,
Judges.

AFFIRMED.

Terry McGlothen
The McGlothen Law Firm, LLC
221 Rue De Jean, Suite 136
Lafayette, LA 70508
(337) 247-7531
COUNSEL FOR APPELLANT:
Perry W. Myles

Michael L. Lancaster
Eaton Group Attorneys, LLC
309 North Blvd.
P. O. Box 3001
Baton Rouge, LA 70821-3001
(225) 378-3119
COUNSEL FOR APPELLEE:
TD Auto Finance, LLC

PERRY, Judge.
This is an appeal from a summary judgment in a proceeding for a deficiency

judgment, in which the trial court granted judgment to the plaintiff-creditor. We

affirm.

FACTS AND PROCEDURAL HISTORY

On July 17, 2012, Prevailing Church1 and Perry W. Myles (“Myles”) bought

a used 2007 Mercedes-Benz S-Class automobile from DZ Motors and entered into a

retail installment sales contract for the purchase price, $40,864.00.2

Contemporaneous with the execution of the retail installment sales contract, DZ

Motors assigned its interest in the auto loan contract to TD Auto Finance, LLC

(“TDAF”). Although monthly payments were made for the first thirteen months,

payments then stopped.

After payment stopped, TDAF repossessed the vehicle and notified Prevailing

Church at P.O. Box 391481, Solon, OH 44139 and Myles at 411 Dulles Drive,

Lafayette, LA 70506 of the upcoming sale of the vehicle. Thereafter, TDAF notified

Prevailing Church and Myles in writing that after applying the proceeds from the

sale of the vehicle, a deficiency balance of $25,133.40 remained.

On June 18, 2015, TDAF, through its attorney, sent a demand letter to Myles

for the unpaid balance together with accrued interest. After receiving no response,

TDAF filed its petition on June 13, 2016, against Myles for the deficiency balance.

1
From various other filings, it appears that William T. Hunt (“Hunt”) appeared on behalf
of Prevailing Church. However, we have not been able to discern the capacity in which Hunt
appeared. It does also appear that Myles participated as a co-buyer in this installment sales
contract.
2
This retail sales contract was executed in the state of Ohio. The subsequent seizure and
sale of the automobile took place in Ohio. No one argues that the laws of Ohio relative to these
facts were not properly followed or that Louisiana law would have required any different treatment
under the law.

On March 22, 2017, Myles, assisted by counsel, filed an answer and interposed a

declinatory exception of insufficiency of service of process.

Accompanying TDAF’s petition was a request for admission of fact regarding

whether Myles had contracted for the purchase of the vehicle, whether the

outstanding balance was correctly stated in the petition, and whether he had been

notified of the sale of the vehicle and the proceeds raised from the sale as well as the

amount of the deficiency. Myles denied the requests for admission of facts as

written.

Later, TDAF filed a request for genuineness of documents and a request for

the production of documents from Myles, asking him to admit or deny the

genuineness of the attached application and loan agreement, the deficiency balance,

and the detailed transaction history. TDAF further requested Myles to produce any

documents that would indicate his disagreement with the loan agreement, the

deficiency balance, and any document that would dispute the detailed financial

transaction history. In response, Myles admitted he signed documents with Hunt,

that he did not deny the deficiency balance or the transaction history report, that he

was notified after the sale of the vehicle, and that he had no other evidence to

present.3 Nonetheless, Myles asserted in his response to TDAF’s request that “[a]t

3
In his answer to TDAF’s request for genuineness of documents, Myles stated:

1. I did sign documents with William T. Hunt but I was unemployed at the
time these documents are dated.
2. I do not deny the deficiency balance but I do deny when I was notified of
this balance.
3. I do not deny the transaction history report but I do deny receiving it
when they alleged that I received it.

Myles further stated in TDAF’s Request for Production of Documents:
....

2. I do not have any other evidence.
3. I do not have any evidence other than that they notified me of the sale
after they sold the vehicle.

2

the time of the sale there was no disclosure that this vehicle had received [severe

water damage; therefore] this sale is illegal and immediately terminated.”

TDAF also submitted note interrogatories and surrender interrogatories. In

response to the note interrogatories, Myles answered that he had no record of

payment by him to reduce the deficiency balance; no funds had been advanced to

him; he had no record to reflect any payments or credits; and he had never met to

sign anything with this company.

In response to TDAF’s surrender interrogatories, Myles answered under

private signature, but not under oath, that no one sent him notice of abandonment or

surrender of the vehicle; at the time of the contracts he was unemployed; he had

earlier agreed to sign “in this process” but his circumstances changed; and when the

vehicle was confiscated he was not given the opportunity to do anything.

On February 25, 2019, after the trial court denied the declinatory exception

Myles filed in conjunction with his answer, TDAF moved for summary judgment.4

TDAF offered the record and summary judgment attachments, as well as Myles’s

admission regarding the signing of the loan documents.

Myles filed a memorandum in opposition to the motion for summary

judgment, attaching his affidavit and, inter alia, a flood report, his credit application,

the credit application of his co-buyer, and the retail installment contract.

Subsequently, TDAF filed a reply memorandum, attaching numerous supporting

documents it had filed in connection with its motion for summary judgment.

After hearing oral argument, the trial court granted TDAF’s motion for

summary judgment, recognizing the $23,609.83 deficiency Myles owed, accrued

interest of $58.96, additional interest of 4%, and attorney fees in the amount of 25%

4
TDAF had filed an earlier motion for summary judgment on March 19, 2018. Although
this motion was reset several times, the trial court neither heard nor ruled on that motion.
3

of the total of both principal and interest, as well as assessing the costs of the

proceeding to Myles.

Myles appeals the trial court judgment, contending that genuine issues of

material fact precluded summary judgment.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no

genuine issue of material fact for all or part of the relief prayed for by a litigant.

Duncan v. U.S.A.A. Ins. Co., 06–363 (La. 11/29/06), 950 So.2d 544. It is well

accepted that an appellate court reviews a motion for summary judgment de novo,

using the identical criteria that govern the trial court’s consideration of whether

summary judgment is appropriate, i.e., whether there is any genuine issue of material

fact and whether the movant is entitled to judgment as a matter of law. Wright v.

Louisiana Power & Light, 06–1181 (La. 3/9/07), 951 So.2d 1058. “A fact is material

if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or

determines the outcome of the legal dispute.” Hines v. Garrett, 04-0806, p. 1 (La.

6/25/04), 876 So.2d 764, 765. “A genuine issue is one as to which reasonable

persons could disagree; if reasonable persons could reach only one conclusion, there

is no need for a trial on that issue and summary judgment is appropriate.” Larson v.

XYZ Ins. Co., 16-0745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416.

The burden of proof remains with the mover to show that no genuine issue of

material fact exists. La.Code Civ.P. art. 966(D). The mover must present supportive

evidence that the motion for summary judgment should be granted. Robicheaux v.

Adly, 00-1207 (La.App. 3 Cir. 1/31/01), 779 So.2d 1048. Once the mover has made

a prima facie showing that the motion for summary judgment should be granted, the

burden of proof shifts to the nonmoving party to present evidence demonstrating the

existence of issues of material fact which preclude summary judgment. Hayes v.

4

Autin, 96–287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97–0281 (La.

3/14/97), 690 So.2d 41.

ON THE MERITS

Myles contends that the motion for summary judgment was improvidently

granted. He makes a twofold argument of contested fact urging that TDAF failed to

make a prima facie showing that: (1) he signed the automobile contract loan or

authorized anyone else to sign his name obligating him to pay the debt; and (2) he

was served with notice of the proceedings before the vehicle was repossessed and

sold.

At the hearing on its motion for summary judgment, TDAF entered into

evidence the detailed installment sales contract which bears Myles signature as a co-

buyer;5 the affidavit of correctness of account that an official of TDAF executed; the

notice sent to Myles after the vehicle was repossessed; and the statement sent to

Myles after the sale which explained the amount left owing after the sale of the

vehicle. In addition, TDAF submitted Myles’s responses to various discovery

requests, to-wit: his statement that he did sign the loan documents, that he did not

deny the deficiency balance or the transaction history report, that he was notified

after the sale of the vehicle, and that he had no other evidence to present. After

examining these submissions, TDAF clearly established the initial retail sale

contract, the amount of the outstanding deficiency remaining on the debt after

crediting the proceeds of the sale after the vehicle was repossessed, that the various

notices were provided to Myles, and that as a co-buyer of the vehicle, Myles was

bound to repay the deficiency.

5
“[A] party’s signature on a contract establishes the presumption that he saw and
understood the terms of the contract.” Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co.,
98-193, p. 4 (La.App. 4 Cir. 9/30/98), 720 So.2d 372, 374.
5

To defeat summary judgment, the burden then shifted to Myles, who had the

burden “to produce factual support sufficient to establish the existence of a genuine

issue material fact or that the mover is not entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(D)(1). Simply showing “the presence of disputed facts” is

insufficient if there is no legal issue presented by those contested facts. Franklin

Credit Mgmt. Corp. v. Gray, 07-1433 (La.App. 4 Cir. 1/14/09), 2 So.3d 598, 603,

writ denied, 09-476 (La. 4/17/09), 6 So.3d 795.

In the present case, Myles submitted his affidavit in which he asserted that:

(1) there were numerous false statements used to obtain credit and to purchase the

vehicle in question; (2) he was not a member nor was he affiliated with Prevailing

Church; (3) he was neither present at the time the credit application was completed

nor did he reside in Ohio at that time; (4) he was neither present at DZ Motors when

the credit application was executed nor did he give permission to use his personal

information or sign his name to purchase the vehicle; (5) neither DZ Motors nor

TDAF requested him to produce documents such as a driver’s license to prove his

identity; (6) he was not indebted to TDAF for the purchase of the vehicle; (7) even

after TDAF was advised he was not a party to this contract, TDAF failed to conduct

an investigation to determine the validity of his assertions; and (8) because it appears

the signatures on the loan documents appear to have been written by the same person,

TDAF should have further investigated his assertions. In conclusion, Myles asserted

in his affidavit that there were numerous false statements in the credit application

that DZ Motors relied upon in extending credit and that after having these falsities

brought to its attention, TDAF “was negligent in failing to verify that I owed the

debt in any capacity (Applicant or Co-Applicant).”

Myles made one further assertion in his memorandum in opposition to

TDAF’s motion for summary judgment. He asserts, based upon a December 19,

6

2013, vehicle evaluation of Mercedes-Benz of Willoughby, Ohio, that the purchased

vehicle showed evidence of water damage and other like issues.

From the outset, we observe that when TDAF attached the loan application

and the loan agreement to its request for admissions under La.Code Civ.P. art. 14666

and asked Myles to admit or deny their genuineness, Myles admitted he signed

documents with Hunt; at the same time, Myles further admitted the deficiency

balance and the transaction history. The purpose of the rule concerning the

admission of facts is designed to eliminate the time, trouble, and expense of proving

uncontroverted facts at trial by requiring the admission of facts not disputed. New

Orleans Public Service, Inc. v. Checker Cab Co., 332 So.2d 489 (La.App. 4 Cir.

1976). Although a party may be allowed to withdraw or amend admissions the party

previously made, La.Code Civ.P. art. 1468; see also Hoskins v. Caplis, 431 So.2d

846 (La.App. 2 Cir. 1983), Myles never made such a request. In the absence of any

request to withdraw his earlier admissions, Myles was bound by his earlier

admissions, and his later statements to the contrary in his affidavit opposing TDAF’s

motion for summary judgment are without effect.7

We further note that to whatever extent Myles relied upon his answers to

TDAF’s note and surrender interrogatories in which he denied ever signing anything

with the company, such reliance is improper for purposes of an opposition to a

motion for summary judgment; simply stated, Myles’s answers were not made under

oath and there was no attestation made before a notary public that they were

6
Louisiana Code of Civil Procedure Article 1466 specifically provides that a party’s
written request for admission, “include[s] the genuineness of any documents described in the
request.”
7
Unlike the procedural rules relative to answers to interrogatories, there is no requirement
in La.Code Civ.P. art 1467 that answers to a request for admissions be made under oath.

7

answered under oath. In Terrell v. Town of Lecompte, 18-1004, p. 9 (La.App. 3 Cir.

6/5/19), 274 So.3d 605, 612, Judge Cooks, speaking for this court, stated:

Louisiana Code of Civil Procedure Article 966(A)(4) authorizes
“answers to interrogatories” as one of the documents that “may be filed
in support of or in opposition to the motion[.]” Id. As noted [in]
Comment (c) to Article 966(A)(4) (emphasis added) states: “Article
1458 requires that interrogatories be answered under oath, and only
answers that are made under oath may be filed in support of or in
opposition to a motion for summary judgment.” This indicates that
only when interrogatories are answered under oath as required may they
be used in support of or in opposition to a motion for summary
judgment.

Lastly, error or mistake, fraud, and illegality are examples of affirmative

defenses that “shall be set forth” in the answer. La.Code Civ.P. art 1005. Myles’s

contentions in his opposition to the motion for summary judgment fall into the

category of affirmative defenses. It is well established jurisprudentially that

affirmative defenses must be expressly pled in the answer. Beslin v. Anadarko

Petroleum Corp., 11-1523 (La.App. 3 Cir. 4/4/12), 87 So.3d 334. As this court

previously noted in Koonce v. St. Paul Fire, 15-031 (La.App. 3 Cir. 8/5/15), 172

So.3d 1101, 1109-10, writ denied, 15-1950 (La. 11/30/15), 184 So.3d 36:

The policy behind the requirement that affirmative defenses be raised
in answer is sensible and laudable. Because affirmative defenses raise
matters for judicial resolution outside of issues raised by plaintiff’s
petition, plaintiff must be made aware of these matters at an early stage
so that plaintiff can prepare an opposition to the defense and adjust his
case, if necessary, in light of the new facts and issues raised by the
affirmative defense. If the affirmative defense is allowed despite the
defense not being raised in answer, the result is a surprise “trial by
ambush” that unfairly aids the defendant, who knew about the defense
even though plaintiff was kept in ignorance of the defense.

See also Rider v. Fontenot, 463 So.2d 951, 956 (La.App. 3 Cir.1985); and Patterson

v. State, 95–1668 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, writs denied, 97–27,

97–108 (La. 2/21/97), 688 So.2d 513.

Our review of the record shows Myles failed to assert any affirmative defense

in his answer. Had Myles pleaded these affirmative defenses in his answer, he would

8

have had the burden of proving them at trial. Not having pled these affirmative

defenses in his answer, Myles cannot now contend that these are material facts that

are a defense to TDAF’s motion for summary judgment.8 See Gulf Coast Bank &

Trust Co. v. Elmore, 10-1237 (La.App. 4 Cir. 1/26/11), 57 So.3d 553; Beslin, 87

So.3d 334.

Because no genuine issue of material fact exists concerning Myles’s liability

to TDAF, summary judgment is appropriate. After conducting our de novo review

of the summary judgment, we conclude the trial court correctly rendered judgment

in favor of TDAF and against Myles for the full amount of the outstanding

deficiency.

DISPOSITION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

8
Where the defendant’s answer fails to raise an affirmative defense, the law takes a liberal
approach to the amendment of pleadings. Reeder v. North, 97-239 (La. 10/21/97), 701 So.2d 1291.
As this court recognized in Koonce v. St. Paul Fire & Marine Ins. Co., 15-31 (La.App. 3 Cir.
8/5/15), 172 So.3d 1101, writ denied, 15-1950 (La. 11/30/15), 184 So.3d 36, the amendment of
pleadings should be liberally allowed so long as the movant acts in good faith and the amendment
is not sought as a delaying tactic. During the course of this litigation, Myles was represented by
Harold D. Register, Jr. from March 2, 2017, until Terry McGlothen enrolled as counsel on June
18, 2018. At no time did either of his attorneys seek to amend his answer. Compare, Danna v.
Barq’s, Inc., 612 So.2d 253, 255 (La. App. 4 Cir. 1992):

Plaintiff asserts that defendant’s affirmative defenses are barred. The court granted
defendant leave of court to amend its answer and assert its affirmative defenses.
The amended answer was filed before the grant of summary judgment and
defendant relied on these defenses in its memorandum in opposition to summary
judgment. Therefore, the defenses were timely and properly considered in the
motion for summary judgment.

9