FIRST NBC BANK v. RIVER PARK DEVELOPMENT AND JOHN CLEMENTS (2025)

This appeal involves a summary judgment granted in favor of Girod LoanCo, LLC (“Girod”), regarding the enforcement of two promissory notes executed by defendants/appellants, River Park Development, L.L.C. and John M. Clements (collectively, “River Park”). For the reasons set forth herein, we affirm in part and reverse in part the summary judgment, as well as affirm in part and reverse in part the denial of a subsequently filed motion for new trial by River Park.¹

FACTS AND PROCEDURAL HISTORY 2

On January 11, 2008, River Park executed a promissory note (“Note 1”) in the amount of $10,000,000.00, payable to First NBC Bank (“FNBC”). Note 1 was secured by a Multiple Indebtedness Mortgage encumbering over thirty acres of immovable property along the Mississippi River in East Baton Rouge Parish, as well as an Assignment of Leases and Rents and a Commercial Security Agreement, all dated January 11, 2008. On June 30, 2015, River Park executed a second promissory note (“Note 2”) in the amount of $200,000.00, also payable to FNBC, and likewise secured by the January 11, 2008 Multiple Indebtedness Mortgage, Assignment of Leases and Rents, and Commercial Security Agreement. River Park does not contest its execution of either Note 1 or Note 2. Note 2 was amended by a series of Change in Terms Agreements, including a Change in Terms Agreement dated November 30, 2015, to increase the principal amount to $410,000.00. Due to River Park defaulting on its payment obligations under both notes, which it does not contest, FNBC filed an executory proceeding against River Park, seeking a writ of seizure and sale, and requesting the mortgaged property be sold to satisfy River Park's debts. River Park was later placed into bankruptcy on July 11, 2016, but pursuant to a joint motion for voluntary dismissal by FNBC and River Park, the proceeding was dismissed by the bankruptcy court on December 15, 2016.

On April 28, 2017, the Louisiana Office of Financial Institutions, through John Ducrest, Commissioner, filed a Motion to Close and Liquidate FNBC and to Confirm Appointment of Receiver. By order dated April 28, 2017, the Federal Deposit Insurance Corporation (“FDIC”) was appointed as Receiver for FNBC and was vested “with title to all assets of [FNBC] without the execution of any instruments of conveyance, assignments, transfer, or endorsement, and [was] vested with the full and exclusive management and control of [FNBC.]” River Park avers in its brief that Girod alleges that it purchased Notes 1 and 2 from the FDIC on November 13, 2017. Further, the Assignment of Leases and Rents relating to Note 1 was assigned from the FDIC to Girod on January 3, 2018.

On December 1, 2017, based on evidence indicating it had acquired and was the current holder of Notes 1 and 2, Girod was substituted as party plaintiff in FNBC's foreclosure action, requested the matter be converted from an executory to ordinary proceeding and, on February 5, 2019, filed a motion for summary judgment seeking recognition of River Park's indebtedness to it, secured by a Multiple Indebtedness Mortgage and Assignment of Leases and Rents, and a money judgment against River Park due to its default on Notes 1 and 2. On Note 1, Girod claimed River Park owed $15,889,557.31 for the principal, interest, and default interest, as well as attorney's fees. On Note 2, Girod claimed River Park owed $627,822.31 for the principal, interest, and default interest, as well as attorney's fees. The trial court signed a judgment granting Girod's motion for summary judgment on September 26, 2019. River Park filed a motion for new trial, which was denied, and thereafter appealed. River Park's appeal was later dismissed by this court due to deficiencies in the judgment's decretal language.³

The trial court later signed an amended judgment on December 17, 2020, in favor of Girod, correcting the prior judgment's decretal language. River Park filed a motion requesting written reasons for judgment in accordance with La. Code Civ. P. art. 1917, as well as a second motion for new trial. After a hearing on the second motion for new trial was held on March 29, 2021, the trial court requested that the parties submit proposed findings of fact, conclusions of law, and judgments. On May 14, 2021, the trial court signed a “Ruling” stating that the second motion for new trial was denied, that it adopted the findings of fact and conclusions of law submitted by Girod, and that it “[would] sign the judgment accordingly.” Thereafter, on May 17, 2021, the trial court signed both proposed judgments submitted by the parties; i.e., the judgment denying the motion for new trial and the judgment granting the motion for new trial and vacating the summary judgment. Although both parties also submitted proposed findings of fact and conclusions of law to the trial court, both were filed in the record unsigned by the trial court. As such, due to the conflicting judgments signed by the trial court on the same date, this court vacated both judgments and remanded the matter to the trial court for the rendition of a valid final judgment on River Park's motion for new trial. See First NBC Bank v. River Park Development, LLC, 2021-1210 (La. App. 1st Cir. 9/16/22), 353 So.3d 193, 196.

In the meantime, on October 11, 2021, due to River Park's failure to pay property taxes on the mortgaged property, Girod paid a total of $737,420.14 to redeem the property which had been sold at a tax sale.⁴ Later, on February 23, 2022, Girod purchased the mortgaged property from the East Baton Rouge Parish Sheriff at a sheriff's sale for $8,000,000.00.

On November 14, 2022, Girod filed a “Motion to Clarify the Record Regarding the May 17, 2021 Judgments on River Park's Motion for New Trial.” April 20, 2023, the trial court issued a “Final Judgment,” which detailed the extensive procedural history of this proceeding, granted Girod's motion to clarify, denied River Park's second motion for new trial, and issued written reasons for both the grant of Girod's motion for summary judgment and the denial of River Park's motion for new trial. River Park now appeals from both the trial court's December 17, 2020 amended judgment granting Girod's motion for summary judgment, as well as the April 20, 2023 judgment denying River Park's motion for new trial.⁵

ASSIGNMENTS OF ERROR

River Park sets forth the following assignments of error:

1. The trial court improperly considered various documents submitted by Girod in support of its motion for summary judgment without specifically stating on the record or in writing whether it sustained or overruled [River Park's] objections as required by La. Code Civ. P. art. 966(D)(2).

2. The trial court erred in granting Girod's motion as to Note 1, because Girod's purported evidence – an incompetent affidavit, copies of Change of Terms Agreements, and a copy of the Allonge not attached to Note 1 – failed to present a prima facie case that it was entitled to collect upon Note 1.

3. The trial court erred in granting Girod's motion as to Note 2, because Girod failed to comply with the requirements for enforcement of a lost instrument under Louisiana law, and alternatively, a genuine issue of material fact exists as to the validity of the Change in Terms Agreement purportedly increasing the principal amount of Note 2 to $410,000.00.

4. As Girod presented insufficient evidence regarding its right to enforce either Note 1 or Note 2, the trial court's recognition of the related security interests was premature.

5. The trial court erred in including in its written reasons a statement regarding the priority of the mortgage, as no party raised the issue or submitted any evidence as to the priority of the mortgage at issue.

DISCUSSION

Summary Judgment Evidentiary Objections

In its first assignment of error, River Park claims the trial court erred by failing to specifically state on the record, or in writing, whether it sustained or overruled a number of evidentiary objections challenging the exhibits attached to Girod's motion for summary judgment, in violation of La. Code Civ. P. art. 966(D)(2).

In its opposition to the motion for summary judgment, River Park first generally objected to “any document offered as proof of Girod's ownership of the promissory notes at issue in the above captioned litigation, because the best evidence of any ownership is the Loan Sale Agreement between Buyer and Seller dated as of November 13, 2017, referenced in the [a]ffidavit of Maureen Babcock, Attorney-in-Fact for the [FDIC].” River Park then went on to specifically object to one of the exhibits offered in support of Girod's motion for summary judgment, the affidavit of Denis B. Stratford, the Senior Vice President of Capital Crossing Servicing Company, LLC, Girod's loan servicer, on the grounds that he did not personally review the loan documents attached to his affidavit, that the documents attached to his affidavit were not true and correct copies, and that he generally made conclusory statements.

At the time Girod's motion for summary judgment was both filed and heard, La. Code Civ. P. art. 966(D)(2) (prior to La. Acts 2023, No. 368, § 1), provided, in pertinent part, that “[t]he court shall consider all objections prior to rendering judgment[,]” and “shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.” While the record in this matter does not contain an express ruling or statement by the trial court regarding River Park's objections, the trial court's December 29, 2020 written reasons for judgment specifically stated that, “[t]he competent summary judgment evidence presented by Girod established the amounts due and owing by River Park and Mr. Clements and that [d]efendants were in default of their payment obligations under the two promissory notes.” The reasons for judgment continued, stating, “[t]he competent summary judgment evidence” established the debts owed by the promissory notes were secured by a Multiple Indebtedness Mortgage, an Assignment of Leases and Rents, and a Commercial Security Agreement. Moreover, even if the trial court's denials of River Park's objections were not sufficiently expressed, when the trial court does not rule upon the objections to summary judgment evidence and appears to have considered the objected-to-evidence, the trial court's silence is deemed as a denial or rejection of the objection. Ricketson v. McKenzie, 2023-0311 (La. App. 1st Cir. 10/4/23), 3 77 So.3d 693, 700, writ denied, 2023-01451 (La. 2/6/24), 378 So.3d 747; Lucas v. Maison Insurance Company, 2021-1401 (La. App. 1st Cir. 12/22/22), 358 So.3d 76, 89.

Turning from the trial court's alleged failure to state on the record whether it sustained or overruled certain evidentiary objections, River Park further addresses the merits of its various contentions. First, River Park claims Girod did not submit the “Loan Sale Agreement between Buyer and Seller dated as of November 13, 2017,” which is referenced in Ms. Babcock's affidavit. River Park claims this is “unquestionably the best evidence of Girod's alleged ownership[,]” and “objected to Girod's alleged proof of ownership of the Notes absent this Agreement[.]” We find no merit to this argument, as La. Code Civ. P. art. 966(D)(2) contemplates and allows for objections to exhibits that are actually filed in support or opposition of a summary judgment, not for alleged evidence that was not filed in support or opposition of a summary judgment. River Park cannot generally object to the exhibits filed by Girod based on an alleged document that was not filed.

Second, River Park objected to the affidavit of Denis B. Stratford ⁶ , supra, claiming that he did “not recite that he is the custodian of records or that he has personally reviewed the numerous, specific documents which he states are true and correct copies.” River Park further maintains that “[w]ithout access to the original documents, it is impossible for him to attest that any of the so-called ‘true and correct copies’ are in fact what they purport to be.” River Park also objected to Mr. Stratford's “conclusory statement that Girod is a holder of the assets that are the subject of this litigation[.]”

We likewise find no merit to this claim. Initially, River Park does not contest the execution of Notes 1 and 2 but, moreover, La. Code Civ. P. art. 967(A) provides that “[s]upporting 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.” Where business records are concerned, the courts have deemed Article 967 satisfied when the affiant is qualified to identify the business records as such. Where the affiant is familiar with the account and business records, it is not necessary for the affiant to show that he personally prepared the business records or that he had direct, independent, first-hand knowledge of their contents. U.S. Bank National Association as Trustee for RFMSI 2005S7 v. Dumas, 2022-0604 (La. App. 1st Cir. 4/3/23), 363 So.3d 1232, 1236-37, writ denied, 2023-00733 (La. 9/26/23), 370 So.3d 478 (affidavit of senior loan analyst employed by mortgage servicing provider, who stated he had personal knowledge of and reviewed the relevant books and records made in the regular course of business, and that he was personally familiar with the manner in which attached documents were created and maintained, was a competent affidavit for summary judgment); see also Regions Bank v. Louisiana Pipe & Steel Fabricators, LLC, 2011-0839 (La. App. 1st Cir. 12/21/11), 80 So.3d 1209, 1213 (affidavit of bank vice president, who was solely responsible for loan “monitoring,” was sufficient summary judgment evidence where the vice president stated he had the personal knowledge and was aware of the underlying loan obligations based on his review of the bank's business records). Herein, Mr. Stratford stated he is “the Senior Vice President of Capital Crossing Servicing Company, LLC, ․ the servicer of [Girod] on the loans secured by the mortgage at issue in this lawsuit[,]” and that he is “responsible for servicing, on behalf of Girod, said loans, which are evidenced by the following promissory notes and change in terms agreements[.]” Further, Mr. Stratford stated he is “personally familiar with the books and records of Capital Crossing and Girod as they relate to the lending relationship with River Park and John M. Clements.” As such, we find Mr. Stratford is competent to testify on the matters stated within his affidavit and find no error in the trial court's overruling of River Park's objection.

Lastly, River Park generally objected to Girod's use of copies of the underlying loan documentation, rather than the originals, in support of its motion for summary judgment. This argument is a recurring theme by River Park but, briefly stated, the use of non-original documents can be used in support of a motion for summary judgment for enforcement of a promissory note, so long as the documents can be properly authenticated. See Riedel v. Fenasci, 2018-0538 (La. App. 1st Cir. 12/28/18), 269 So.3d 995 (affirming summary judgment in favor of the plaintiff who offered as exhibits a copy of the promissory note, a copy of the recorded credit deed, affidavits, and deposition testimony admitting signing the documents); Whitney Bank v. Garden Gate New Orleans, L.L.C., 2017-0362 (La. App. 5th Cir. 12/27/17), 236 So.3d 774, writ denied, 2018-0174 (La. 3/23/18), 239 So.3d 298 (affirming summary judgment in favor of a plaintiff who offered as exhibits a bank vice president affidavit, which included copies of promissory notes, guarantees, and other loan documents). Accordingly, this assignment of error lacks merit.

Summary Judgment on Note 1

In its second assignment of error, River Park claims the trial court erred in granting summary judgment in favor of Girod because the exhibits and evidence offered by Girod did not create a prima facie case that it was entitled to collect upon Note 1. We note that much of River Park's argument turns on whether the original or “true and correct copies” of the underlying loan documents can be used to collect upon a promissory note.

Summary judgment is an appropriate procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement. In a suit to collect on a promissory note, once the plaintiff, as holder of the note, proves the maker's signature, or the maker admits it, the holder has made out his prima facie case by mere production of the note and is entitled to recover in the absence of any further evidence. The burden then shifts to the maker to prove the existence of a triable issue of material fact and/or any affirmative defenses. Wachovia Mortgage Corporation v. Hoover, 2021-1035 (La. App. 1st Cir. 4/8/22), 342 So.3d 1, 5, writ denied, 2022-00860 (La. 9/27/22), 347 So.3d 156 (internal citations omitted); see also Riedel, 269 So.3d at 999. Further, when, as here, the plaintiff is an assignee, the plaintiff must also present evidence of a chain of assignments. See DCR Mortgage 7 Sub 1, LLC v. Legends Square, LLC, 2024-0461 (La. App. 1st Cir. 11/20/24), 2024 WL 4833819, *7 (unpublished).

In support of its motion for summary judgment, Girod not only offered a copy of the original Note 1, but also the affidavit of Mr. Stratford to authenticate the additional related loan documents, including multiple change in terms agreements, the Assignment of Leases and Rents, Allonge to Note 1, Commercial Security Agreement, and various UCC Financing Statements. As the holder of the note, and due to the lack of dispute over River Park's execution of Note 1, we find Girod established a prima facie case simply by filing the note as evidence in support of its motion for summary judgment. Moreover, River Park did not dispute its execution of Note 1, related change in terms agreements, offer any countervailing evidence to suggest that the allonge endorsement properly authenticated by Mr. Stratford did not establish Girod as the holder of Note 1, did not rebut Girod's claim that River Park had defaulted on its payment obligations under Note 1, and did not offer any evidence to rebut the amounts Girod contends are due under Note 1. Rather, the only argument made by River Park is that the Allonge Endorsement to Note 1 was a true and correct copy rather than the original.

As noted, there is no evidentiary requirement that Girod must furnish the original loan documents in this ordinary proceeding. While River Park cites to one decision from this court, Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 2006-0766 (La. App. 1st Cir. 2/9/07), 959 So.2d 914 for the proposition that the original loan documents must be furnished in order to establish a prima facie case, the Grevemberg decision addressed a default judgment, not the granting of a summary judgment in an ordinary proceeding. Herein, the Allonge to Promissory Note states: “THIS ALLONGE TO PROMISSORY NOTE is made as of November 13, 2017, by the FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of First NBC Bank, a Louisiana state non-member bank, and is attached to and a part of that certain Promissory Note payable by RIVER PARK DEVELOPMENT, L.L.C. in favor of FIRST NBC BANK, dated January 11, 2008, in the original principal amount of $10,000,000.00, as the same may have been modified or amended from time to time.” Further, it was marked, “Pay to the order of GIROD LOANCO, LLC[.]”

Of note, in its written reasons for judgment, the trial court stated, “[t]he [d]efendants did not present competent summary judgment evidence to present a genuine issue of material fact on this issue and, as a result, summary judgment recognizing these valid and perfected security interests that secured the indebtedness evidenced by the promissory notes was properly rendered in favor of Girod and against [d]efendant[s].”

Accordingly, we find Girod, as the holder of Note 1, presented a prima facie case that it was entitled to enforcement of Note 1, that River Park did not present any countervailing evidence to create a genuine issue of material fact, and that the trial court did not err in granting summary judgment in favor of Girod on Note 1. Therefore, this assignment of error lacks merit.

Summary Judgment on Note 2

In its third assignment of error, River Park first claims Girod failed to present a prima facie case that it was entitled to summary judgment on Note 2 because the trial court allegedly failed to comply with statutes relating to lost instruments.

As an exhibit to its motion for summary judgment, Girod attached a “LOST INSTRUMENT AFFIDAVIT” executed by FDIC attorney, Maureen Babcock, on November 30, 2017. Ms. Babcock states that she is the attorney-in-fact for the FDIC, acting in its capacity as Receiver for FNBC and that, at “the time of the preparation of transfer to [Girod], [FDIC] was the owner” of Note 2. Ms. Babcock then specifically identified River Park as the maker of Note 2, the original principal balance of $200,000.00, and the execution date of June 30, 2015. Ms. Babcock went on to state that “the original Instrument has been lost or misplaced. The Instrument was not where it was assumed to be, and a search to locate the Instrument was undertaken, without results.”

River Park claims the trial court erred by allowing Girod's enforcement of Note 2 based on Ms. Babcock's affidavit. In summary, River Park argues that a lost instrument may only be enforced if a certain number of conditions are met, as set forth in La. R. S. 10:3-301. However, we find no merit to River Park's argument. In its responses to Girod's Statement of Uncontested Facts, River Park admits it executed Note 2: “[River Park] agree[s] that a promissory note was executed on June 30, 2015[.]” Further, by the affidavit of Mr. Stratford, Girod properly authenticated and attached a true and correct copy of Note 2. As already established, we do not find that the original loan documents are required in this proceeding. Additionally, Ms. Babcock's affidavit provided further evidence of the FDIC's ownership of the obligations evidenced by Note 2 and then FDIC's transfer of the obligations evidenced by Note 2 to Girod. Girod is not attempting to enforce Note 2 solely by the “Lost Instrument Affidavit” executed by Ms. Babcock, but is providing further evidence of its right to enforce.

River Park then provides an alternative argument to Girod's prima facie case on Note 2, that is, that a genuine issue of material fact exists concerning the change in terms agreement increasing the principal amount of Note 2 from $200,000.00 to $410,000.00. Specifically, on November 30, 2015, a Change in Terms Agreement was purportedly executed by which an electronic signature of “Pete” was provided in the signature line for John M. Clements as the managing member of River Park. In their opposition to Girod's summary judgment, River Park provided a May 15, 2019 affidavit by Mr. Clements, whereby he states that “[h]e signs any and all legal documents as ‘John M. Clements,’ as that is his legal name[,]” and that “[h]e does not[,] nor has he ever signed a legal document as ‘Pete[.]’ ” Mr. Clements further stated neither he nor any other authorized representative of River Park signed the Change in Terms Agreement dated November 30, 2015, regarding Note 2.

Although Girod, through Mr. Stratford, complied with Louisiana Revised Statutes 13:3733.2(A) & (B), which addresses records with electronic signatures, by submitting a certificate regarding the November 30, 2015 Change in Terms Agreement, we nevertheless find the affidavit submitted by Mr. Clements creates a genuine issue of material fact precluding summary judgment. Mr. Clements clearly stated that he does not sign his name as “Pete,” and that he did not authorize any individual, acting on River Park's behalf, to execute the Change in Terms Agreement. Summary judgment is precluded if an affidavit raises a genuine issue of material fact. See La. Code Civ. P. art. 967(B). As such, although we do not find any error by the trial court in recognizing the enforceability of the original balance of Note 2 in favor of Girod, because of the unclear amounts now owed to Girod by River Park, we are constrained to reverse this portion of the trial court's granting of summary judgment in favor of Girod on Note 2. Accordingly, this portion of the trial court's December 17, 2020 judgment is reversed.

Premature Recognition of Security Interests

In its fourth assignment of error, River Park, in a one sentence argument, claims that because “Girod was not entitled to summary judgment on Notes 1 or 2, the trial court's recognition of the related security interests was premature and should be reversed.” As we have already determined that Girod is entitled to summary judgment for the enforcement of Note 1 and are reversing summary judgment in favor of Girod on Note 2, we pretermit discussion of this assignment of error.

Priority of Mortgages

In its fifth assignment of error, River Park claims the trial court erred by, in its written reasons for judgment, incorrectly addressed the priority or ranking of the mortgage. Specifically, in its December 29, 2020 written reasons for judgment, the trial court stated, “[t]he competent summary judgment evidence further established that the debt evidenced by the promissory notes was secured by a first priority multiple indebtedness mortgage and an assignment of leases and rents, which had each been timely reinscribed.” River Park objects to the trial court's use of “first priority” in describing the underlying mortgage.

We note that appellate courts review judgments and not reasons for judgment. In fact, judgments are often upheld on appeal for reasons different than those assigned by a trial court. The written reasons for judgment are merely an explication of the trial court's determinations and do not alter, amend, or affect the final judgment being appealed. Louisiana Property Development, LLC v. U.S. National Title Insurance Company, 2022-0163 (La. App. 1st Cir. 9/16/22), 353 So.3d 153, 160. Moreover, on de novo review of a summary judgment, an appellate court affords no deference to the trial court's underlying reasons for its judgment or to the legal standard or analysis applied by the trial court. King v. Allen Court Apartments II, 2015-0858 (La. App. 1st Cir. 12/23/15), 185 So.3d 835, 839, writ denied, 2016-0148 (La. 3/14/16), 189 So.3d 1069; Tucker v. Chatfield, 2023-0343 (La. App. 1st Cir. 11/9/23), 379 So.3d 678, 684. Here, the judgment granting Girod's summary judgment does not address the priority of any of the security interests, but only recognizes the mortgage, assignment of leases and rents, and security agreement as “valid and perfected” to secure the indebtedness at issue. Since the judgment at issue does not address mortgage ranking and, moreover, as we are reversing summary judgment in favor of Girod on Note 2, we pretermit discussion of this assignment of error.

CONCLUSION

For the foregoing reasons, the trial court's December 17, 2020 amended judgment granting summary judgment in favor of plaintiff/appellee, Girod LoanCo, LLC, and against the defendants/appellants, River Park Development, L.L.C. and John M. Clements, is affirmed in part and reversed in part. The trial court's April 20, 2023 judgment denying River Park's motion for new trial is likewise affirmed in part and reversed in part. Further, the Motion to Dismiss Devolutive Appeal of Luhr Bros., Inc., filed by Girod, is denied as moot. Costs of this appeal are assessed equally between defendants/appellants, River Park Development, L.L.C. and Cosima M. Clements as Curator for John M. Clements, and plaintiff/appellee, Girod LoanCo, LLC.

JUDGMENTS AFFIRMED IN PART, REVERSED IN PART; MOTION TO DISMISS DENIED AS MOOT.

To the extent that the majority reverses the trial court's grant of summary judgment in favor of Girod as to “Note 2,” I agree. However, as to the majority's decision to affirm the trial court's grant of summary judgment in favor of Girod as to “Note 1,” I disagree.

I do not believe that the affidavit of Denis B. Stratford is competent summary judgment evidence for the purpose intended. The affidavit references the attached “Note 1” and the eight separate attachments without indicating that none of these documents are originals. Mr. Stratford is a senior vice president for Capital Crossing, the company servicing Girod's loans, and his affidavit does not establish that he possesses sufficient personal knowledge to authenticate these documents. Compare Regions Bank v. Louisiana Pipe & Steel Fabricators, LLC, 2011-0839 (La. App. 1st Cir. 12/21/11), 80 So. 3d 1209, 1213. Mr. Stratford's knowledge appears to be derived from “information and belief’ based upon records provided to Capital Crossing from Girod from the FDIC from First NBC Bank. Mr. Stratford is not a custodian of records. The note in question went from First NBC Bank, to the FDIC, to Girod, and then apparently to Capital Crossing. Supporting affidavits are required to be made on personal knowledge, which “means something which a witness actually saw or heard” as opposed to something a witness learned from an outside source. Adema v. Southern Natural Gas Co., L.L.C., 2023-0785 (La. App. 4th Cir. 1/31/24), 3 84 So. 3d 904, 908-909, writ denied, 2024-00265 (La. 4/23/24), 3 83 So. 3d 577.

I am not convinced that the original loan documents are not required in this proceeding. Moreover, I do not believe that Riedel v. Fenasci, 2018-0538 (La. App. 1st Cir. 12/28/18), 269 So. 3d 995, and Whitney Bank v. Garden Gate New Orleans, L.L.C., 2017-0362 (La. App. 5th Cir. 12/27/17), 236 So. 3d 774, writ denied, 2018-0174 (La. 3/23/18), 239 So. 3d 298, the cases relied upon by the majority, support the proposition that the non-original documents before us can be used in support of a motion for summary judgment and are properly authenticated. Although in both Riedel and Whitney there is an indication that copies of documents were attached as summary judgment evidence, in those cases, unlike the instant case, there were no objections to the use of copies as opposed to original documents. Moreover, in those cases, the applicable version of La. C.C.P. art. 966(D)(2) at that time provided that the court “shall consider any documents to which no objection is made.” Here, objections were made.

For these reasons, I respectfully dissent in part.

FOOTNOTES

1.   On December 1, 2020, Cosima Clements was substituted as party defendant as the curator of Mr. Clements. According to River Park's brief, Mr. Clements has since passed away.

3.   The particular deficiency with the trial court's September 26, 2019 judgment was that an award of attorney's fees made payable to Girod was determinable only by reference to an extrinsic source, such that the judgment was ambiguous. See First NBC Bank v. River Park Development, L.L.C., et al., 2020-0808 (La. App. 1st Cir. 11/9/20) (unpublished action).

4.   Louisiana Revised Statutes 47:2242 provides that any person may redeem tax sale title to property, but the redemption shall be in the name of the tax debtor.”

5.   Luhr Bros., Inc., also filed a motion for a devolutive appeal from the trial court's April 20, 2023 judgment, claiming status as a subordinate mortgage holder on the underlying immovable property. Later, Girod filed a Motion to Dismiss Appeal of Luhr Bros., Inc. However, this appeal was subsequently dismissed for failure to timely file a brief pursuant to Rule 2-12.7 of the Uniform Rules of the Courts of Appeal. As a result, and based on our ruling herein, Girod's motion is denied as moot.

6.   We note that Mr. Stratford's affidavit is styled as “Affidavit and Certificate of Brian R. Doherty.” However, neither River Park nor Girod contest that Mr. Stratford actually executed this document. It is implicitly conceded by River Park that Mr. Stratford executed and signed the affidavit, and any objection on this basis was not raised with the trial court prior to the summary judgment hearing.

WOLFE, J.

Miller, J. agrees in part and dissents in part with reasons