Gulfco of Louisiana, LLC d/b/a Tower Loan of Cut Off v. Ashley B. Cheramie, a/k/a Ashley Cheramie and Nicholas Cheramie ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 1277
GULFCO OF LOUISIANA, LLC, D/B/A
TOWER LOAN OF CUT OFF
VERSUS
u" ASHLEY B. CHERAMIE, A/ K/A ASHLEY CHERAMIE
AND NICHOLAS CHERAMIE
Judgment Rendered: APR 2 6 2022
APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF LAFOURCHE
STATE OF LOUISIANA
DOCKET NUMBER 133694
HONORABLE STEVEN M. MILLER, JUDGE PRESIDING
Jessica L. Greber Attorneys for Plaintiff A
- ppellant
Shreveport, LA Gulfco of Louisiana, LLC d/ b/ a
Tower Loan of Cut Off
Ashley B. Cheramie Defendant -Appellee,
Golden Meadow, LA In Proper Person
Nicholas Cheramie Defendant -Appellee,
Golden Meadow, LA In Proper Person
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
McDONALD, J.
This is an appeal from a judgment in favor of the borrower after a trial on the
merits regarding two check loans. After review, we reverse and render judgment in
favor of the holder.
FACTS AND PROCEDURAL HISTORY
Gulfco of Louisiana, LLC d/ b/ a Tower Loan of Cut Off (Gulfco), is the holder
of two loans owed by Ashley B. Cheramie. The loans resulted from two " check
loans" made out to Ms. Cheramie for $ 2, 503. 93 each, which were mailed to Ms.
Cheramie as a solicitation. Ms. Cheramie deposited the checks at her bank to borrow
the money on December 31, 2015 and April 26, 2017. Ms. Cheramie made most of
the payments on the first check loan, leaving a principal balance of $223. 18 due,
plus interest. Ms. Cheramie made no payments on the second check loan.
Thereafter, on September 25, 2017, Gulfco filed suit against Ms. Cheramie
and her husband, Nicholas Cheramie. Gulfco maintained that Ms. Cheramie owed
an unpaid balance of $223. 18 on the first check loan, together with 31. 65 percent
interest per annum for one year starting on April 3, 2017, 18 percent per annum
thereafter, until paid in full, as well as costs and attorney fees. On the second loan
Gulfco maintained that Ms. Cheramie owed an unpaid balance of $ 2, 897. 43,
together with 31. 65 percent interest per annum for one year starting on September
139 20179 18 percent interest per annum thereafter, until paid in full, plus $ 10. 50 in
late charges, as well as costs and attorney fees. Gulfco attached copies of both
checks signed by Ms. Cheramie and processed by her bank, along with lost note
affidavits from Gulfco' s branch manager, attesting that the documents were true and
correct copies.
Gulfco maintained that the debts were incurred during the
Cheramies' marriage and were a community obligation. Gulfco prayed for judgment
in its favor against Ashley and Nicholas Cheramie for the debts, including interest,
late charges, costs, and attorney fees.
K
Nicholas Cheramie answered the petition, generally denying most of the
allegations. In his answer to the request for admissions of fact, Nicholas Cheramie
denied that the parties had a community of acquets and gains at the time the loans
were taken out and maintained that the parties had a prenuptial agreement. The
prenuptial agreement between Ashley and Nicholas Cheramie, dated January 19,
2005, was attached.
Ms. Cheramie answered the petition, generally admitting most of the
allegations. She maintained that she and Nicholas had a prenuptial agreement in
place, that Nicholas had no knowledge of the note, and that he did not sign the note.
She admitted the amount due on the first note was $ 223. 18, with interest at 31. 65
percent for one year beginning April 3, 2017, and thereafter at the rate of 18 percent
per annum, until paid in full, and for all costs and reasonable attorney fees as set by
the court. Ms. Cheramie admitted that the amount due on the second note was
897. 43, 1 together with interest at the rate of 31. 65 percent per annum for one year
beginning September 13, 2017, and thereafter at the rate of 18 percent per annum,
until paid in full, along with $10. 50 in late charges, all costs, and reasonable attorney
fees set by the court.
Gulfco filed a motion for summary judgment asserting that it was entitled to
a judgment against Ms. Cheramie as a matter of law. Gulfco attached copies of the
two check loans signed by Ms. Cheramie, along with lost note affidavits from its
branch manager certifying that the documents were true and correct copies and were
a reproduction of its records maintained on file in the course of its business. Gulfco
also attached an affidavit of the correctness of the account from its branch manager,
and an affidavit asking for attorney fees in the amount of 25 percent of the unpaid
debt after default.
1 This appears to be a typographical error as the balance stated in the petition was $ 2, 897.43.
3
The summary judgment was apparently denied, as the matter proceeded to a
trial on the merits against Ms. Cheramie.' Gulfco was the only party present at the
trial. Gulfco introduced copies of the two check loans signed by Ms. Cheramie into
evidence. Gulfco' s branch manager testified that the original check loans were
deposited at Ms. Cheramie' s bank and destroyed. At the close of the trial, the trial
court found that Gulfco had presented insufficient evidence of the loans and denied
Gulfco' s claims. The trial court signed a judgment in favor of Ms. Cheramie and
against Gulfco on June 1, 2021. Gulfco appealed that judgment.
Gulfco makes the following assignment of error on appeal.
The trial court erred in finding that there was insufficient
evidence to support enforcement of the instruments sued upon, and by
failing to accept the reproductions of the instruments as " prima facie
proof of [their] contents with the same force and effect as though the
original document[ s] were produced," pursuant to [ La. R.S.
13: 3733. 1C]. The trial court' s decision imposes an additional
evidentiary burden upon financial institutions to show an apparent
chain of custody" when enforcement of negotiable
seeking
instruments. This additional burden of proof is not required or even
contemplated under the provisions of [ La. R.S. 13: 3733. 1]. More
importantly, there is no " chain of custody" rule for civil matters in
Louisiana.
DISCUSSION
Questions of law are reviewed de novo. City of Baton Rouge/Parish of East
Baton Rouge v. Myers, 2013- 2011 ( La. 5/ 7/ 14), 145 So. 3d 320, 327. The issue
herein is whether the trial court correctly interpreted and applied the law. Harris v.
Metropolitan Life Ins. Co., 2009- 0034 (La. App. 1 Cir. 2/ 5/ 10), 35 So. 3d 266, 273.
A check loan is a pre -approved loan offer made through a home solicitation
by mail. When Ms. Cheramie endorsed the checks and deposited them into her bank
account, she created loans that must be repaid pursuant the terms described in the
check loan offer disclosures, which were attached to the check. See La. R.S.
9: 3541. 1A(2).
z The record before us does not contain a ruling on the motion for summary judgment, nor does it contain
a dismissal of the claims against Nicholas Cheramie.
The front of the check loans at issue herein include a warning in accordance
with La. R.S. 9: 3541. 1: 3
WARNING: THE CASHING OF THIS CHECK WILL ENROLL
YOU IN A PROGRAM OR A LOAN, OR WILL CAUSE YOU TO
BE BOUND TO REPAY THE LOAN OR PURCHASE GOODS OR
SERVICES WHICH MAY COST YOU ADDITIONAL MONEY.
PROPER ENDORSEMENT REQUIRED. NON -TRANSFERABLE.
The back of the check loans above the borrower' s signature line signed by
Ms. Cheramie states:
BY ENDORSING THIS INSTRUMENT YOU AGREE TO REPAY
THIS LOAN ACCORDING TO THE TERMS OF THE CONSUMER
PROMISSORY NOTE AND DISCLOSURE STATEMENT
ACCOMPANYING THIS CHECK WHICH YOU ACKNOWLEDGE
RECEIVING AND WHICH PROVIDES YOU WITH ADDITIONAL
CONTRACT TERMS IN CONNECTION WITH THIS LOAN
TRANSACTION. INCLUDING AN ARBITRATION AGREEMENT.
The check loans also include a disclosure form page that was attached to them, and
which provides the terms of the loans.
Louisiana Code of Evidence article 901A provides that authentication or
identification is satisfied by a showing that a matter in question is what a proponent
claims. Authentication can be satisfied by the testimony of a witness with
knowledge. La. C. E. art. 90113( 1). Louisiana Revised Statutes 13: 3733. 113 provides
that any financial institution may reproduce any of its original records used by such
financial institution during the course of its regular business activities and may
thereafter destroy the original record in the regular course of its business activities.
Additionally, La. R.S. 13: 3733. 1G( 2) provides that a reproduction of a check that
has been destroyed by a financial institution in the regular course of its business
activities shall be deemed to be an original of such check in a judicial proceeding or
3 La. R.S. 9: 3541. 1E provides that such a check shall contain the following language as a conspicuous
caption: WARNING: THE CASHING OF THIS CHECK WILL ENROLL YOU IN A PROGRAM OR A
LOAN, OR WILL CAUSE YOU TO BE BOUND TO REPAY THE LOAN OR PURCHASE GOODS OR
SERVICES WHICH MAY COST YOU ADDITIONAL MONEY.
5
action involving a claim based on or involving such check.' Louisiana Revised
Statutes 13: 3733. 1C provides that reproductions made pursuant to that statute shall
be received as prima facie proof of its contents with the same force and effect as
though the original document were produced, and shall be deemed authentic for all
purposes, thereby satisfying the requirements of La. C. C. art. 901.
Gulfco attached copies of the signed check loans, lost note affidavits, and an
affidavit of correctness of account to its petition. Gulfco' s branch manager, Erica
Terrebonne, testified at trial regarding the amount of the check loans, the payments
made, and the balances due. Gulfco introduced copies of the signed check loans and
payment statements into evidence at trial.
Ms. Terrebonne testified that Gulfco was the holder of the check loans, and
the check loans were payable to Ms. Cheramie. Ms. Terrebonne testified that Ms.
Cheramie endorsed the check loans and then deposited them into her State Bank &
Trust account. She testified that Gulfco did not get the original signed check loans
and disclosure statements back because they were destroyed by Ms. Cheramie' s
bank; that Gulfco received copies of the endorsed check loans from State Bank &
Trust; and that true and correct copies of the signed check loans and disclosure
statements were kept in the regular course of Gulfco' s business. Ms. Terrebonne
testified that Ms. Cheramie made most of the payments on the first loan, but left a
balance of $223. 18 unpaid, and was therefore in default on the first loan under the
4 In order for a document to be a negotiable promissory note, it must meet the requirements of La. R.S.
10: 3- 104. These are ( 1) be signed by the maker or drawer; ( 2) contain an unconditional promise or order
to pay a sum certain in money; ( 3) be payable on demand or at a definite time; and ( 4) be payable to order
of bearer. Dixie Web Graphic Corp. v. Sharp, 619 So.2d 1173, 1175 ( La. App. 1 Cir. 1993).
ON
terms of the contract. Ms. Terrebonne testified that on the second loan, Ms.
Cheramie made no payments, and the loan was accelerated upon default. Ms.
Terrebonne testified that the balance due on loan number two was $ 2, 514.43. 5
After de novo review, we find that Gulfco clearly presented sufficient
evidence of the check loans and that the trial court legally erred by finding otherwise.
Thus, we reverse the trial court judgment and we render judgment in favor of Gulfco.
CONCLUSION
For the foregoing reasons, the trial court judgment denying all relief prayed
for by Gulfco of Louisiana, LLC d/ b/ a Tower Loan of Cut Off is reversed, and
judgment is rendered in favor of Gulfco of Louisiana, LLC d/b/ a/ Tower Loan of
Cut Off and against Ashley B. Cheramie in the amount of $223. 18, with interest at
the rate of 31. 65 percent per annum for one year beginning April 3, 2017, and
thereafter at the rate of 18 percent per annum, and in the amount of $2, 514. 43, with
interest at the rate of 31. 65 percent per annum for one year beginning September 13,
2017, and thereafter at the rate of 18 percent per annum, and for $ 10. 50 in late
charges, and for attorney fees of $684.40.6 Costs of this appeal are assessed against
Ashley B. Cheramie.
REVERSED AND RENDERED.
5 The payoff statement for the second check loan shows that the total to pay off the second check loan was
calculated with a beginning balance of $3, 150. 00, which included a finance charges of $646.07. After Ms.
Cheramie defaulted on the second check loan and the loan was accelerated, the finance charge was refunded,
leaving a balance of $2, 503. 93. A late charge of $10. 50 was added, for a total $2, 514. 43 payoff balance.
6
Attorney fees are calculated herein at 25 percent of the unpaid balance due on the loans, $ 223. 18 on the
first loan and $ 2, 514.43 on the second loan, for a total unpaid balance of $2, 737. 61.