Oupac, Inc. v. Janet A. Carmouche

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-570

OUPAC, INC.

VERSUS

JANET A. CARMOUCHE, BOB MCDANIEL,
AND CATHERINE SOILEAU MCDANIEL

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 78,705-B
HONORABLE CHUCK R. WEST, DISTRICT JUDGE

**********

CHARLES G. FITZGERALD
JUDGE

**********

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

REVERSED AND RENDERED.

Bruce A. Gaudin
Attorney at Law
100 West Bellevue Street
Opelousas, Louisiana 70570
(337) 948-3818
Counsel for Plaintiff/Appellant:
Oupac, Inc.

Marcus L. Fontenot
Fontenot & Ludeau, LLC
Post Office Box 69
Ville Platte, Louisiana 70586
(337) 363-2388
Counsel for Defendants/Appellees:
Bob McDaniel
Catherine Soileau McDaniel

FITZGERALD, Judge.

This appeal involves the ranking of a vendor’s privilege, conventional

mortgage, and judicial mortgage on immovable property sold by credit sale and

reacquired by dation en paiement.

FACTS AND PROCEDURAL HISTORY

The facts in this case are not in dispute. On October 16, 2008, Oupac, Inc.

(Oupac) obtained a money judgment against Janet Carmouche (Carmouche) for the

principal sum of $6,795.64. On October 21, 2008, this judgment was filed with the

recorder for mortgages for Evangeline Parish. The recordation created a judicial

mortgage over all present and future immovable property owned by Carmouche in

that parish. 1

On November 13, 2013, Bob McDaniel and Catherine Soileau McDaniel (the

McDaniels) sold to Carmouche by credit sale two tracts of land located in Evangeline

Parish. The purchase price was fully financed by the McDaniels. In connection with

the purchase, Carmouche signed a promissory note, and her obligation to pay the

note was secured by a conventional mortgage granting the McDaniels a security

interest in both tracts of land. The credit sale and conventional mortgage were

combined into a single written instrument styled “Sale and Mortgage.” The Sale and

Mortgage was recorded in the conveyance and mortgage records that same day

(November 13, 2013).

Less than five months later, Carmouche defaulted on her note payments. On

March 31, 2014, Carmouche and the McDaniels executed a dation en paiement,

which transferred ownership of both tracts of land back to the McDaniels. In the

dation, Carmouche warranted clean title to the property, and the McDaniels accepted

1
In September 2018, a judgment of revival was signed and recorded.

the property “in full acquittance and discharge of the indebtedness.” Thereafter, on

June 18, 2014, the dation was recorded in the conveyance and mortgage records of

Evangeline Parish. In conjunction therewith, the McDaniels also filed with the

recorder of mortgages a request for cancellation of mortgage. Attached to this

request was Carmouche’s original promissory note; the face of the note was marked

“PAID PER DATION 3/31/14 by Catherine McDaniel.”

On March 16, 2020, Oupac filed a concursus proceeding against Carmouche

and the McDaniels to determine the validity and ranking of the privileges and

mortgages—including its (Oupac’s) judicial mortgage—on the property conveyed

in the dation en paiement. A bench trial was held on July 14, 2020. At the close of

evidence, the trial court ruled that the McDaniels had a “valid first lien by virtue of

their vendor’s privilege recorded on November 13, 2013,” and that Oupac had a

“valid second lien by virtue” of its judicial mortgage. That ruling was reduced to

written final Judgment signed on December 1, 2020. This appeal by Oupac followed.

In its sole assignment of error, Oupac asserts as follows:

The trial judge was clearly wrong when he failed to recognize
that the vendor’s lien and the mortgage contained within the sale and
mortgage by Bob McDaniel and Catherine Soileau McDaniel to Janet
A. Carmouche on November 13, 2013, were canceled by the express
language of the dation en paiement recorded on June 18, 2014, and by
the cancellation of mortgage, accompanied by the paid note, filed on
the same day, and that as a result, the 2008 judgment in favor of Oupac,
Inc., revived in 2018, is entitled to priority ranking against the property
now owned by Bob McDaniel and Catherine Soileau McDaniel. 2

2
In their original appellee brief, the McDaniels request attorney fees for work
performed on this appeal. However, attorney fees are only recoverable when permitted by
law or contract, and neither applies in this matter. An appellee must also file an answer to
an appeal if “he desires to have the judgment modified, revised, or reversed in part.”
La.Code Civ.P. art. 2133(A). Since the McDaniels have not answered the appeal, their
request for attorney fees is not properly before this court. Lysinger v. Sec. Indus. Ins. Co.,
488 So.2d 353 (La.App. 3 Cir.), writ denied, 493 So.2d 638 (La.1986).

2

LAW AND ANALYSIS

In this appeal, our review is not premised on any factual findings made by the

trial court. Because we are reviewing only questions of law, we employ the de novo

standard of review. Navarre Chevrolet, Inc. v. Begnaud, 16-465 (La.App. 3 Cir.

11/2/16), 205 So.3d 973, writ denied, 16-2122 (La. 1/13/17), 215 So.3d 248.

A. Vendor’s Privilege

Oupac concedes that a vendor’s privilege in favor of the McDaniels was

created by operation of law when the credit sale was executed and recorded on

November 13, 2013. Oupac also concedes that the vendor’s privilege was superior

to its judicial mortgage at that time. Oupac argues, however, that the vendor’s

privilege was extinguished by the dation en paiement, which transferred ownership

of the immovable property back to the McDaniels in full satisfaction of Carmouche’s

indebtedness. We agree.

The vendor’s privilege on immovable property is established by La.Civ.Code

art. 3249. That article identifies two types of “[c]reditors who have a privilege on

immovables . . . [including the] vendor on the estate by him sold, for the payment of

the price or so much of it as is unpaid, whether it was sold on or without a credit.”

Id. While we acknowledge that secondary sources are not controlling, we find that

the following treatise excerpt is helpful and relevant:

The vendor’s privilege is a distinct right that arises in every credit sale
by operation of law. This privilege is an accessory to the seller’s right
to collect the price. A seller’s assertion of his vendor’s privilege would
be made in conjunction with his action to collect the price; accordingly,
the vendor’s privilege is a legal right granted to the seller in pursuance
of the remedy of specific performance.

As between the seller and the buyer, the vendor’s privilege exists
as to both movables and immovables without the necessity for the seller
to take any action to preserve the privilege. . . . In order to assert the
vendor’s privilege [on immovables] against third persons, the sale must
be filed in the mortgage records of the parish in which the immovable
is situated.
3

D. Tooney-Knoblett & D. Gruning, 24 La. Civ. L. Treatise, Sales § 15:8 (2020)

(footnotes omitted).

On November 13, 2013, the credit sale between the McDaniels and

Carmouche was executed and recorded. The vendor’s privilege in favor of the

McDaniels came into existence and was effective against third parties, such as

Oupac, on that date. La.Civ.Code art. 3274.

Significantly, on March 31, 2014, ownership of the two tracts of land was

transferred back to the McDaniels by dation en paiement. In the dation, the

McDaniels accepted the property “in full acquittance and discharge of [Carmouche’s]

indebtedness.” The dation and an accompanying request for cancellation of

mortgage were filed with the recorder of mortgages on June 18, 2014. Carmouche’s

original promissory note, which had been marked “PAID PER DATION 3/31/14 by

Catherine McDaniel,” was attached to the request for cancellation of mortgage.

Louisiana Civil Code Article 3277 states, in pertinent part, that “[p]rivileges

become extinct . . . [b]y the creditor acquiring the thing subject to it . . . [or b]y the

extinction of debt which gave birth to it.” Here, the creditor (the McDaniels)

reacquired the immovable property—the thing subject to the vendor’s privilege—

the moment the dation was executed. This, standing alone, extinguished the

vendor’s privilege. Also, the dation and accompanying recorded documents

evidence the extinction of the promissory-note indebtedness; this is the debt which

“gave birth” to the vendor’s privilege. The extinction of this debt also destroyed the

vendor’s privilege.

B. Ranking of Mortgages

On October 21, 2008, Oupac recorded its money judgment against Carmouche.

On November 13, 2013, the Sale and Mortgage between Carmouche and the

McDaniels was signed and recorded, thereby creating a vendor’s privilege and
4

conventional mortgage in favor of the McDaniels. The vendor’s privilege was

discussed in the previous section of this opinion.

In general, a “[m]ortgage is a nonpossessory right created over property to

secure the performance of an obligation.” La.Civ.Code art. 3278. A mortgage is an

indivisible real right that burdens and follows the mortgaged property into whatever

hands the property may pass. La.Civ.Code art. 3280. A mortgage is accessory to the

obligation it secures. La.Civ.Code art. 3282.

There are certain rules that are particular to conventional mortgages. For

example, a conventional mortgage can only be established by written contract.

La.Civ.Code art. 3287. However, the “contract of mortgage need not be signed by

the mortgagee, whose consent is presumed and whose acceptance may be tacit.”

La.Civ.Code art. 3289. “A conventional mortgage may be established only by a

person having the power to alienate the property mortgaged.” La.Civ.Code art. 3290.

In the absence of specific legislation, a conventional mortgage is classified as a

“special mortgage,” meaning that it “burdens only certain specified property of the

mortgagor.” La.Civ.Code art. 3285.

There are also rules that are particular to judicial mortgages. A judicial

mortgage, for instance, secures a judgment for the payment of money. La.Civ.Code

art. 3299. Unlike a conventional mortgage, which is created by contract, a judicial

mortgage is created by filing a money judgment with the recorder of mortgages.

La.Civ.Code art. 3300. A judicial mortgage is also a “general mortgage,” meaning

that it is “established over property that the obligor owns when the mortgage is

created and over future property of the obligor when he acquires it.” La.Civ.Code

art. 3303; see also La.Civ.Code art. 3285 (“A general mortgage burdens all present

and future property of the mortgagor.”).

5

Louisiana Civil Code Article 3307 lays the foundation for the ranking of

mortgages, providing that “the mortgagee is preferred to . . . others whose rights

become effective after the mortgage becomes effective as to them.” A mortgage

becomes effective as to a third person when it is recorded in the appropriate

mortgage records. La.Civ.Code arts. 3338.

As explained in the following practice series excerpt:

[A]ll mortgages rank in the order they are filed in the mortgage records
in the parish where the real estate is located. That mortgage which is
recorded first has priority over subsequently recorded mortgages. . . .
[C]onventional, judicial and legal mortgages are all on the same footing.
Thus, a judicial mortgage recorded on July 1 will prime a conventional
mortgage recorded on July 2, which will in turn prime a subsequent
judicial mortgage recorded on July 3.

Peter S. Title, 1 La. Prac. Real Est. § 15:2 “Mortgage priority” (2d ed. 2020)

(emphasis added).

The ranking of mortgages is also addressed in the revision comments to

La.Civ.Code art. 3300. That article addresses the creation of judicial mortgages.

The revision comments provide, in relevant part:

Recordation creates the mortgage as a right in favor of the creditor and
establishes it over the property then owned by the debtor. If the debtor
does not then own property, the mortgage exists as a right in favor of
the creditor to a mortgage over the future property of his debtor, and is
then imposed (established) over particular property when the debtor
acquires it. Consequently, although such mortgages take their effect as
to third persons from the time of recordation, they do not constitute a
charge upon any particular property until it is acquired by the debtor.
The mortgage, being effective as to the judgment debtor and being
recorded will rank ahead of any other charges imposed by the debtor
over the property after the judgment is recorded, even as to future
property.

La.Civ.Code art. 3300, 1992 Revision Comment (emphasis added).

In this case, Oupac recorded its money judgment against Carmouche on

October 21, 2008. The judicial mortgage was in effect at the time of the credit sale

on November 13, 2013. The signing and recordation of the Sale and Mortgage gave

6

rise to two security devices: first, a vendor’s privilege which was created by

operation of law; and second, a conventional mortgage. At the time of recordation

(on November 13, 2013), the vendor’s privilege in favor of the McDaniels was

superior to Oupac’s judicial mortgage because of La.Civ.Code art. 3274, which is a

rule of ranking limited to “privileges.”3 But was the conventional mortgage in favor

of the McDaniels also superior to Oupac’s judicial mortgage? The answer is no.

The conventional mortgage was recorded five years after Oupac recorded its money

judgment against Carmouche.

In sum, once the Sale and Mortgage was properly recorded, the vendor’s

privilege, conventional mortgage, and judicial mortgage ranked as follows: the

McDaniels’ vendor’s privilege ranked first; Oupac’s judicial mortgage ranked

second; and the McDaniels’ conventional mortgage ranked third.

C. Extinguishment of the Conventional Mortgage

Oupac claims that the conventional mortgage in favor of the McDaniels was

extinguished by confusion as a result of the dation en paiement. We agree.

A dation en paiement “is a contract whereby an obligor gives a thing to the

obligee, who accepts it in payment of a debt.” La.Civ.Code art. 2655. “An act of

giving in payment . . . has the effect of transferring title the same as the ordinary

contract of sale.” Quality Fin. Co. of Donaldsonville v. Bourque, 315 So.2d 656, 658

(La.1975). Hence, a creditor who receives ownership of property by dation will

acquire the property subject to any recorded encumbrances, whether superior or

inferior to that of the creditor. Id.

3
Louisiana Civil Code Article 3274 states:

No privilege shall have effect against third persons, unless recorded
in the manner required by law in the parish where the property to be affected
is situated. It shall confer no preference on the creditor who holds it, over
creditors who have acquired a mortgage, unless the act or other evidence of
the debt is recorded within seven days from the date of the act . . . .
7

The dation here was perfected between the McDaniels and Carmouche on

March 31, 2014. At the time of the dation (and at all times thereafter), the mortgage

records of Evangeline Parish reflected Oupac’s judicial mortgage. Thus, when the

McDaniels reacquired ownership of the immovable property, they did so subject to

Oupac’s judicial mortgage.

Turning now to confusion, it is well-settled that when a creditor receives

ownership of property following a dation en paiement, the mortgage held by the

creditor on the subject property is extinguished by confusion. La.Civ.Code art.

3319(2) (“A mortgage is extinguished . . . [b]y confusion as a result of the obligee’s

acquiring ownership of the thing mortgaged.”); see also La.Civ.Code art. 1903

(“When the qualities of obligee and obligor are united in the same person, the

obligation is extinguished by confusion.”).

The dation at issue expressly states:

Debtor [Carmouche] hereby makes unto the Creditor [the McDaniels]
a dation en paiement, by hereby transferring, conveying, delivering,
granting, assigning, and setting over unto the Creditor, here present and
accepting, and acknowledging due delivery and possession thereof, the
following described property:

....

This transfer and conveyance of said property b[y] Debtor is
made and accepted for and in consideration of the indebtedness and is
received by the Creditor in full acquittance and discharge of the
indebtedness.

When the dation was executed on March 31, 2014, the creditor (the McDaniels)

reacquired unconditional ownership of the immovable property. By operation of

law, the conventional mortgage was extinguished by confusion at this time. See

La.Civ.Code art. 3319(2).

There is also a second basis for the extinguishment of the conventional

mortgage. Louisiana Civil Code Article 3319(7) provides: “A mortgage is

8

extinguished . . . [w]hen all the obligations, present and future, for which the

mortgage is established have been incurred and extinguished.” Our supreme court

has explained that “a conventional mortgage is an accessory security device. It is

founded upon a principal debt, which it secures, and when the principal debt is

extinguished, the mortgage disappears.” Thrift Funds Canal, Inc. v. Foy, 261 La.

573, 260 So.2d 628, 630 (1972) (citations omitted).

The conventional mortgage in favor of the McDaniels secured Carmouche’s

promissory-note indebtedness. The dation and accompanying recorded documents

evidence the extinction of this principal debt. Because the debt owed by Carmouche

was extinguished, so too was the conventional mortgage in favor of the McDaniels.

“Once the mortgage has ceased to exist by operation of law, it is dead for all purposes

and all time.” Baton Rouge Wood Prods., Inc. v. Ezell, 194 So.2d 372, 377 (La.App.

1 Cir. 1966). 4

D. Whether the Conventional Mortgage was Revived

The McDaniels assert that their conventional mortgage has been revived. In

support, they argue that “if a mortgagee takes title to property covered by its

mortgage and it subsequently appears that an inferior encumbrance still affects that

property, its mortgage is revived with each party being restored to its former rights.”

The McDaniels cite three cases to support their assertion: Third Dist. Bldg. Ass’n v.

Forschler, 174 La. 828, 141 So. 849 (1932); Pugh v. Sample, 123 La. 791, 49 So.

526 (1909); and Cook v. LeMoine, 149 So. 263 (La.App. 2 Cir. 1933).

In Forschler, 141 So. 849, the dation en paiement was annulled for want of

consideration. The annulment had the effect of restoring the parties to the position

they held prior to the dation. Id. Thus, the confusion was regarded as never having

4
Even if the McDaniels’ conventional mortgage survived the dation, the
conventional mortgage would have remained inferior to Oupac’s judicial mortgage.
9

occurred, and both the indebtedness and mortgages securing it were revived. Id. In

support of its ruling, the supreme court explained:

In Pugh v. Sample, 123 La. 791, 49 So. 526, 39 L. R. A. (N. S.)
834, it was held, as stated in the syllabus: “Whilst one cannot be, at the
same time, owner and mortgagee of the same property, if the title,
which, apparently conveying perfect ownership, is supposed to destroy
the mortgage, by confusion turns out to be no title, or an imperfect title,
the mortgage, which was suspended, and thus apparently destroyed,
upon the assumption of perfect ownership, revives; the cause of its
suspension and supposed destruction no longer existing. ‘The effect
cannot have a longer duration than the cause,’” citing Millaudon v.
Allard, 2 La. 547 [(1831)].

Id. at 850 (emphasis in original).

In Pugh, 49 So. 526, the original owners of Cotton Port Plantation executed a

mortgage in favor of the defendant securing nearly $60,000 in debt. A money

judgment was later obtained by a third party against the plantation owners. Once

recorded, a judicial mortgage was created although inferior in rank to the mortgage

held by the defendant. Id. Thereafter, the owners conveyed the plantation to the

defendant by dation en paiement in consideration of the surrender and cancellation

of the notes held by the defendant that were secured by the mortgage. The plaintiffs

then filed suit to execute on the judicial mortgage. The plaintiffs argued that they

had paid the money judgment on behalf of the original plantation owners; that by

virtue of their payment they became subrogated to the judicial mortgage; that

following the dation, the first mortgage held by the defendant was extinguished by

confusion; that the judicial mortgage has therefore been advanced to the first rank;

and that the judicial mortgage is now to be satisfied out of the property as though

defendant’s mortgage never existed. Id.

The supreme court disagreed, concluding that the money judgment at issue

had been paid by the original plantation owners prior to the dation. Id. Once paid, it

10

could not have operated as a mortgage on their property, including the plantation. Id.

After deciding the issue before it, the court then posited as follows:

Even, however, were it conceded that the [money] judgment
survives and operates as a judicial mortgage, the most that plaintiffs
could claim would be that the property be sold, subject to [the
defendant’s] mortgage as it existed at the date of the conveyance to him,
as in such case his mortgage, which had been in a condition of
suspended animation, would revive, and, as it seems to be understood
that the property would fall considerably short of satisfying it, plaintiffs
would get nothing.

Id. at 528 (emphasis added).

During the 112 years since Pugh was decided, there have been very few cases

that have applied the above remedy. Of these cases, there are two different types.

The first type involves the rescission of the dation en paiement, or the giving in

payment. In these cases, the parties are restored to the positions they held prior to

the dation. These decisions are consistent with legislation. See La.Civ.Code art.

2033 (“An absolutely null contract, or a relatively null contract that has been

declared null by the court, is deemed never to have existed. The parties must be

restored to the situation that existed before the contract was made.”). Forschler is

an example of this type of case.

The second type is problematic. Ordinarily, if a person holding a conventional

mortgage over property acquires the property, the mortgage is extinguished by

confusion. However, the second type of case suggests that if the property is subject

to an intervening right by a third person (such as a judicial mortgage) and the

enforcement of that right subsequently divests the owner of his property, the

conventional mortgage is revived under Pugh. 5 This is a legal fiction. It is an

equitable remedy not based in legislation. Even if the first mortgage is not

5
An example of this type of case is Cook v. LeMoine, 149 So. 263.
11

extinguished by confusion, the debt it secures has been extinguished. This situation

was not addressed in Pugh.

Importantly, there is a commonality between the two types of cases discussed

above. In both instances, the person who receives ownership of property in

consideration for the satisfaction of a debt is subsequently divested of ownership. In

contrast, the dation between Carmouche and the McDaniels has not been annulled,

nor has the immovable property conveyed therein been seized and sold.

The McDaniels are making an equitable argument not based in legislation. It

is an equitable remedy that stands in direct conflict with a fundamental principle of

law. A mortgage is accessory to the obligation it secures. Without the principal

obligation, there can be no mortgage. For that reason, unless the McDaniels can

rescind the dation en paiement and revive both the promissory-note indebtedness

and the conventional mortgage securing it, there is no basis for the assertion that the

mortgage has been revived. We therefore decline to apply Pugh to the facts of this

case.6

DECREE

For the foregoing reasons, we reverse the trial court’s judgment and render

that Oupac, Inc. has a valid first lien on the property at issue pursuant to its judicial

mortgage, which was recorded on October 16, 2008, and revived on September 26,

2018. All costs associated with this appeal are assessed to the Appellees, Bob

McDaniel and Catherine Soileau McDaniel.

REVERSED AND RENDERED.

Even if the McDaniels’ conventional mortgage is revived, the conventional
6

mortgage would remain inferior to Oupac’s judicial mortgage.
12