Nancy Estrada v. Shawn Peter Hulin

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-231

NANCY ESTRADA

VERSUS

SHAWN PETER HULIN

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 88398
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED.

Paul J. deMahy
Thompson Law Office
2901 Johnston Street, Suite 301
Lafayette, LA 70503
(337) 534-8761
COUNSEL FOR DEFENDANT/APPELLEE:
Shawn Peter Hulin

Ramon J. Fonseca, Jr.
Fonseca & Associates, LLC
921 Kaliste Saloom Road
Lafayette, LA 70508
(337) 456-1163
COUNSEL FOR PLAINTIFF/APPELLANT:
Nancy Estrada

PERRET, Judge.

This appeal challenges the trial court’s determination that prescription has run

on Appellant’s action to collect a loan of money secured by a collateral mortgage

note and a collateral mortgage. After review, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY:

Appellant, Nancy Estrada, filed a Petition on Promissory Note and for

Recognition of Mortgage alleging that Appellee, Shawn Peter Hulin, was indebted

to her for a loan of money. In her amending petition, Appellant alleged that Mr.

Gerald Hulin loaned Appellee $60,000.00 plus eight percent interest per annum.1 To

secure the loan, Appellee executed a collateral mortgage note on December 5, 2011,

entitled “Promissory Note,” in the amount of $60,000.00 plus eight percent interest

per annum payable to Bearer on demand and paraphed for identification with an act

of collateral mortgage. The note was later secured by a “Collateral Mortgage” dated

May 10, 2012.

On June 8, 2016, Mr. Gerald Hulin assigned “all interests and rights under this

Promissory Note and Collateral Mortgage which were formerly owned by

Bearer/Gerald Hulin” to Appellant. The assignment is entitled “Notice of

Assignment of Promissory Note, and Collateral Mortgage” signed by Gerald Hulin

and notarized. The “Promissory Note” and “Collateral Mortgage” referenced in the

assignment were identified by date and signor. Appellant also asserts that physical

possession of the note was delivered to her on this date.

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Appellant notes in her opposition to the exception of prescription that the original petition
inadvertently referred to the note as a promissory note representing the loan when, in actuality, the
suit is based on an oral “loan of money” secured by the “Promissory Note,” which was a collateral
mortgage note, a ne varietur note. The collateral mortgage note was then secured by the collateral
mortgage.

Appellant further alleges that she has maintained possession of the note, that

she has made demands for payment on the loan, that Appellee has made no payments

on the loan, and that she is, as Bearer of the note, entitled to recover the principal

balance, interest, and reasonable attorney’s fees as provided in the collateral

mortgage note. Appellant also sought to have her mortgage on the property

described in the “Collateral Mortgage” recognized and maintained. Attached to the

petition were copies of the “Promissory Note,” St. Martin Parish Recording Page,

“Collateral Mortgage,” and the “Notice of Assignment of Promissory Note.”

However, Appellant has not produced the original “Promissory Note.”

In response, Appellee filed an Exception of Prescription alleging that no

payments on the money lent have been made and the obligation has prescribed.

Appellee also filed an answer and reconventional demand seeking to have the

collateral mortgage recordation cancelled. In opposition, Appellant asserts that her

possession of the collateral mortgage note acted as a continual interruption of

prescription; thus, the exception of prescription should be denied.

At the hearing on the exception, Appellant introduced an affidavit of the

notary who prepared the “Promissory Note” and “Collateral Mortgage” instruments.

The notary attested that both were executed “as security for an underlying loan of

money by Gerald Hulin to Shawn Peter Hulin to assist Shawn Peter Hulin.”

However, despite the trial court’s request, Appellant could not produce the original

note, and her counsel admits that, at the present, “we’re not in possession of the

original to supply to the court.” Thereafter, the trial court determined that the note

was prescribed on its face; thus, prescription would only be interrupted by continued

possession of the note, which Appellant could not produce. Thereafter, the trial court

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granted the exception of prescription and dismissed Appellant’s petition with

prejudice.

On appeal, Appellant asserts that the trial court erred in four respects: (1) in

determining that the “Promissory Note” was the principal obligation, rather than the

oral loan of money, (2) by not treating the “Promissory Note” and “Collateral

Mortgage” as accessory obligations securing the oral loan of money, (3) by failing

to find that the pledge of the “Promissory Note,” and its continued possession by

Appellant, interrupted prescription on the oral loan of money, and (4) by requiring

Appellant to produce the original “Promissory Note.”

LAW AND ANALYSIS:

When reviewing peremptory exceptions of prescription on appeal, the

appellate standard of review depends on whether evidence was adduced at the trial

court. N. G. v. A. C., 19-307 (La.App. 3 Cir. 10/2/19), 281 So.3d 727. If no evidence

was submitted, “the judgment is reviewed simply to determine whether the trial

court’s decision was legally correct.” Id. at 733 (quoting Arton v. Tedesco, 14-1281,

p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied, 15-1065 (La.

9/11/15), 176 So.3d 1043). If evidence was supplied, the trial court’s factual

findings are reviewed under the manifest error-clearly wrong standard of review.

Specialized Loan Servicing LLC v. January, 12-2668 (La. 6/28/13), 119 So.3d 582;

Smith v. Vick Inv., LLC, 19-622 (La.App. 3 Cir. 6/3/20), 298 So.3d 288, writ denied,

20-830 (La. 10/14/20) 302 So.3d 1114.

Recently, this court favorably quoted McGill v. Thigpen, 34,386, pp. 3-4

(La.App. 2 Cir. 2/28/01), 780 So.2d 1224, 1227-28, which explained collateral

mortgage instruments as well as the applicable prescription periods:

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A collateral mortgage is a form of conventional
mortgage which developed in Louisiana’s jurisprudence
through the recognition that one can pledge a note secured
by a mortgage to secure another debt. The collateral
mortgage is comprised of three documents. First, there is
a promissory note, referred to also as a collateral mortgage
note or a ne varietur note. Second, there is an act of
mortgage, also referred to as the collateral mortgage,
which secures the collateral mortgage note. Third, there is
an indebtedness evidenced by a promissory note, also
referred to as the hand note, for which the collateral
mortgage note is pledged as security. No money is directly
advanced on the collateral mortgage note which is
paraphed to identify it with the act of mortgage. Instead,
the collateral mortgage note and the mortgage securing it
are pledged to secure a debt evidenced by the hand note.

Since the collateral mortgage note and hand note are
promissory notes, they are subject to a prescriptive period
of five years as provided in La. C.C. art. 3498. . . .
Prescription on a note payable on demand runs from the
date of execution of the note. . . .

The party pleading the peremptory exception of
prescription bears the burden of proof. However, where
the [creditor’s] cause of action is prescribed on the face of
the petition, the [creditor] bears the burden of rebutting the
plea of prescription. . . .

Succession of Campbell, 19-91, pp. 8-9 (La.App. 3 Cir. 10/2/19), 280 So.3d 979,

986.

Appellant’s Assignments of Error Numbers One and Two involve the trial

court’s determination of whether the primary obligation was the oral loan of money

or the “Promissory Note.” Appellant argues that the “Promissory Note” was, in fact,

the collateral mortgage note, secured by the “Collateral Mortgage,” which secured

the oral loan of money. Under this scenario, there is no hand note evidencing the

primary indebtedness as described in Campbell. Appellant asserts that the trial court

erred in finding that the “Promissory Note” was the hand note representing the

primary obligation instead of the accessory obligation.

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The hearing transcript first appears to indicate that the trial court believed the

“Promissory Note” to be the principal obligation. The trial court stated:

[T]he problem here is you have the original promissory note for the
debt, but you’re trying to enforce it and it’s beyond the five year period.
In order to do so, you have to have the hand note that was secured by
the mortgage that was pledged to you to interrupt prescription. You
don’t have that, so he’s proper on prescription.

Later, the trial court appears to entertain the idea that the “Promissory Note”

is, instead, the collateral mortgage note:

BY THE COURT:
Because we have a hand note payable to bearer, Ms. Estrada
could take that hand note and that mortgage and go to the bank and say
I want to pledge this as security for a loan for me. And she could do
that. So this only says the [sic] he executed the note. This doesn’t say
she’s still in possession of it, and she could have pledged it to someone
else.

[APPELLANT]:
Correct, Your Honor. So essentially, production of the original
hand note, possession of that as far as the theory that we forwarded,
would suggest that the possession is a continuing acknowledgement of
it whereby prescription would not have run on the underlying obligation
--

BY THE COURT:
You don’t have possession of it.

[APPELLANT]:
But in the event? Because my client suggests there’s an original
and locating that hasn’t happened yet. There’s a question about where
it is. We’re determine to find it. Unfortunately, at present we’re not in
possession of the original to supply to the Court. But there’s an original
that we’re determined to locate.

However, the court ultimately concluded:

BY THE COURT:
It’s based on your pleadings. You said a promissory note was
executed, more than five years had passed and no payments were made,
and a collateral mortgage was granted along with a hand note. Based
on the pleadings of the petition, okay, he files an exception of
prescription that it’s beyond the five year period, unless you can
produce the hand note to interrupt that prescription, or some payment,

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or some form of acknowledgment, I’ve got to grant the exception of
prescription.

Based on the transcript it appears the trial court may have concluded that the

“Promissory Note” was the hand note, i.e. the primary obligation, as initially alleged

in Appellant’s petition. However, there is no definitive factual finding set forth in

the transcript.

Appellant’s amended petition states that the “Promissory Note” is the

collateral mortgage note securing an oral loan of money. The “Promissory Note” in

the record also reflects a collateral mortgage note. Although titled “Promissory

Note,” a collateral mortgage note is just that—collateral mortgage notes are

promissory notes. See Campbell, 280 So.3d 979. Furthermore, the “Promissory

Note” is “[p]araphed ‘Ne Varietur’ for identification with an Act of Collateral

Mortgage[.]” The “Collateral Mortgage” document also states, “Mortgagor does by

these presents declare and acknowledge a debt in the amount of sixty thousand

dollars ($60,000.00) and to evidence such indebtedness has executed a Collateral

Mortgage Note (“Note”) for the mentioned amount[.]” Lastly, the affidavit of

Ronald Menville, the notary who prepared the instruments, states, “The Promissory

Note and the Collateral Mortgage were executed as security for an underlying loan

of money by Gerald Hulin to Shawn Peter Hulin to assist Shawn Peter Hulin.”

Regardless, under both scenarios, the primary obligation is prescribed on its

face. Appellant asserts that the oral loan of money occurred on or about the same

day as the execution of the collateral mortgage note, December 5, 2011. An action

on a loan of money prescribes in three years. La.Civ.Code art. 3494(3). An action

on a promissory note prescribes in five years. La.Civ.Code art. 3498. Thus,

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accepting Appellant’s scenario results in a shorter prescriptive period and does not

change the need for Appellant to overcome prescription.

To survive a plea of prescription in this case, Appellant must prove that

prescription was interrupted. This issue introduces a discussion of Appellant’s

Assignments of Error Numbers Three and Four. Appellant alleges that the trial court

erred in failing to find that the pledge of the “Promissory Note,” and its continued

possession by Appellant, acted as a continual interruption of prescription. Appellant

also alleges that the trial court erred in requiring Appellant to produce the original

note.2

Prescription on the principal obligation is interrupted when the obligation “is

secured by a pledge, and [] it remains interrupted, as long as the thing pledged is in

the possession of the pledgee[.]” Succession of Picard, 238 La. 455, 462, 115 So.2d

817, 819 (La.1959). It is not the act of the pledge itself that interrupts prescription

on the principal obligation, rather the detention of the thing pledged by the pledgee.

Scott v. Corkern, 231 La. 368, 91 So.2d 569 (La.1956). Even when the pledged note

itself is prescribed, the retention of that prescribed pledged note continues to

interrupt prescription on the primary obligation. City of Shreveport v. Black, 50,527

(La.App. 2 Cir. 4/20/16), 194 So.3d 1132. “Prescription is not interrupted, however,

if the original collateral mortgage note is not in the creditor’s possession.” Campbell,

280 So.3d at 986.

In Campbell, Mr. Johnson, the creditor, sought to enforce a debt owed by an

estate, and the estate heirs filed a peremptory exception of prescription. Mr. Johnson

2
Although Appellant’s brief indicates the trial court required the original note representing
the principal obligation, the transcript suggests the trial court required the production of the
original collateral mortgage note, which Appellant suggests is the “Promissory Note.”

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produced copies of the collateral mortgage, collateral mortgage note, and the check

evidencing the money lent, but testified that he did not have possession of the

original collateral mortgage note or the original promissory note. Despite the copies

submitted and testimony from the attorney who prepared those documents, this court

found that Mr. Johnson’s claim on the promissory note was prescribed. This court

reasoned:

Even assuming that Mr. Johnson proved the existence of the
$265,000.00 promissory note, he does not have the collateral
mortgage note in his possession. Therefore, he failed to prove that
prescription on the promissory note was interrupted. . . .

At best, Mr. Johnson’s check payable to [Debtor] proved that he
loaned [Debtor] $265,000.00 on November 6, 2009. Claims for money
loaned prescribe in three years. La.Civ.Code art. 3494(3). Mr.
Johnson acknowledged that [Debtor] had not made any payments on
the loan and did not establish with other evidence that prescription on
the loan was otherwise interrupted.

Id. at 986-87 (emphasis added).

Similarly, in McGill, 780 So.2d 1224, the appellate court concluded that the

plaintiffs’ action was prescribed where the collateral mortgage note was lost. The

plaintiffs initiated an action to foreclose on a property by enforcing a hand note

secured by the pledge of collateral mortgage notes and collateral mortgages. The

interests in these instruments were assigned to the plaintiffs during a merger. The

plaintiffs alleged that no payments were made on the hand note and admitted that

the originals of the instruments were lost during the merger, which occurred

approximately one month prior to the filing of the suit.

The appellate court first determined that the collateral mortgage notes had

prescribed where no payments were made on the primary obligation, no written

acknowledgment of the collateral mortgage notes existed, and the suit was brought

more than five years after payment on the collateral mortgage notes became exigible.

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Therefore, no viable claim against the mortgaged property existed. Furthermore, if

the hand note remained viable, “it remains a purely personal obligation of the maker

and is no longer secured by the mortgage.” Id. at 1229. After considering the

viability of the hand note, the court concluded that, “[b]ecause the instruments,

including the hand note and collateral mortgage notes, have been either lost or

destroyed, we do not find that prescription on the hand note has been interrupted by

constant acknowledgment.” Id. In a footnote the court noted, “The record does not

indicate when the various instruments were lost. The burden was on the plaintiffs to

prove the interruption of prescription. They have not met this burden.” Id., fn. 4.

In this case, Appellant asserts that Mr. Gerald Hulin lent Appellee $60,000.00,

which was an oral loan not evidenced by a hand note or promissory note. Appellant

also asserts that Appellee has not made any payments on the loan. The loan, given

on or about December 5, 2011, prescribed three years later. Appellant, therefore,

must prove that prescription on the loan was interrupted by the continued possession

of a collateral mortgage note. In other words, Appellant was required to prove that

the thing pledged remained in the possession of the pledgee.

To carry her burden, Appellant submitted a copy of the “Promissory Note,”

i.e. the collateral mortgage note. Appellant also submitted the “Notice of

Assignment of Promissory Note, and Collateral Mortgage” evidencing that Mr.

Gerald Hulin assigned his rights in the “Promissory Note” and “Collateral Mortgage”

to Appellant on June 8, 2016. Although on appeal Appellant argues that Mr. Gerald

Hulin assigned those rights to Appellant by “delivering physical possession of the

collateral mortgage note to petitioner as the new holder and bearer of the note[,]” the

assignment does not mention the physical delivery of those instruments. Even

assuming arguendo, the assignment would evidence physical transfer of the

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instruments, that transfer occurred on June 8, 2016. Without evidence that Appellant

maintained possession of the “Promissory Note” after that date, prescription accrued

three years later, prior to the filing of this action on August 5, 2016.3

As in McGill, Appellant has not submitted any evidence that the pledge, the

“Promissory Note,” remained in possession of the pledgee to interrupt prescription.

It was Appellant’s burden to prove the interruption of prescription. She has not met

this burden. Thus, we find no error in the trial court requiring Appellant to produce

the original collateral mortgage note (the “Promissory Note”), or the trial court’s

determination that prescription was not continually interrupted. Appellee’s

Exception of Prescription was properly granted.

DECREE:

The trial court’s October 30, 2019 Judgment granting Shawn Peter Hulin’s

Exception of Prescription and dismissing Nancy Estrada’s petition with prejudice is

affirmed. Costs of this appeal are assessed to Nancy Estrada.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

3
“[P]rescription commences anew from the date of interruption.” City of Shreveport, 194
So.3d at 1135.

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