Standard Mortgage Corporation v. Angelique Monique Jarrell ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 0960
STANDARD MORTGAGE CORPORATION
VERSUS
ANGELIQUE MONIQUE JARRELL
JUDGMENT RENDERED: APR 16 2021
Appealed from the
Twenty -Third Judicial District Court
In and for the Parish of Ascension • State of Louisiana
Docket Number 126999 • Division E
The Honorable Alvin Turner, Jr., Judge Presiding
Robert Ryland Percy, III COUNSEL FOR APPELLANT
Anna Quintero Skias INTERVENOR— Robert " Bobby"
Gonzales, Louisiana Webre, Sheriff and Ex Officio
Tax Collector of Ascension
Parish, State of Louisiana
Stacy Cottrell Wheat COUNSEL FOR APPELLEE
Louis Graham Arceneaux PLAINTIFF— Standard Mortgage
Foerstner Graham Meyer Corporation
Fred Joseph Daigle
New Orleans, Louisiana
BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.
WELCH, J.
This appeal stems from a dispute between Standard Mortgage Company
Standard") and the Ascension Parish Sheriff' s Office over the commission due
the sheriff for services performed during the pendency of a foreclosure proceeding,
where Standard reinstated the debtor' s loan, eliminating the need for a sheriff' s
sale.
The trial court rendered judgment decreeing that the debtor' s property was
homestead exempt and that the sheriff was entitled to collect $ 582. 11, that sum
being 3% of the reinstatement fee payment of $19, 403. 60. The sheriff appeals,
arguing that the debtor waived her homestead exemption rights in the mortgage
agreement, entitling the sheriff to a commission equal to 3% of the $ 19, 403. 60
reinstatement fee and the $ 202, 999.91 loan balance. We affirm the trial court' s
judgment.
FACTS AND PROCEDURAL HISTORY
Standard filed a petition for executory process on October 7, 2019, against
Angelique Monique Jarrell. Standard alleged that Ms. Jarrell defaulted on a
promissory note and mortgage— with a principal balance due and owing of
202, 999. 91, with interest at the rate of 4. 5% per annum, from April 1, 2019 until
paidby failing to pay the monthly installments, due for May 1, 2019 until paid.
Standard sought the issuance of a writ of seizure and sale, which the sheriff issued
on October 24, 2019. 1 Prior to the sale of the property, Ms. Jarrell reinstated her
defaulted loan on January 15, 2020, by paying past due payments totaling
18, 403. 60, remitting the sheriff' s deposit of $1, 000. 00, and remitting the sheriff' s
commission of $582. 11. Accordingly, Standard requested that the sheriff return
the writ and cancel the sheriff' s sale.
The sheriff returned the writ and sent Standard a statement for expenses,
1 The sheriff recorded notice of the seizure of Ms. Jarrell' s property on November 12, 2019, in
the Ascension Parish Clerk of Court' s Office mortgage records, at MOB Instrument Number
00982147.
W
costs, and commission due for its services, in the total amount of $ 6, 045. 08.
Thereafter, Standard filed a motion to reduce and fix the sheriff' s commission,
seeking a reduction of the sheriff' s commission to $ 528. 11, on the basis that
because Ms. Jarrell' s property was homestead exempt, the sheriff' s 3%
commission is correctly calculated based the reinstatement fee payment of
19, 403. 60, not the principal balance of the loan, $ 202, 999. 91.
In response, the sheriff intervened in the suit and opposed Standard' s
motion. The sheriff argued that Ms. Jarrell waived her homestead exemption as to
seizures in her mortgage agreement, and as a result, the sheriffs 3% commission
must be calculated based on the reinstatement fee payment of $19, 403. 60 and the
balance of the loan, $ 202, 999. 91.
Following a hearing on Standard' s motion to reduce and fix the sheriff' s
commission, the trial court took the matter under advisement. The trial court
thereafter rendered judgment on August 5, 2020, granting Standard' s motion to
reduce and fix the sheriff's commission, and ordering that the sheriff's commission
be calculated based upon 3% of the reinstatement fee payment of $19, 403. 60, for a
total of $582. 11. The trial court also issued reasons for its judgment. The sheriff
now appeals.
LAW AND DISCUSSION
Louisiana Revised Statutes 13: 5530 sets forth a sheriff's entitlement to fees
in civil matters.2 Pursuant to La. R.S. 13: 5530( A)( 13):
a) In all cases where the sheriffs have in their possession
for execution a writ of fieri facias, a writ of seizure and
sale, or any conservatory or other writ under which
property is or may be seized:
1
9=
ii) When the plaintiff in writ receives cash, other
consideration, or both pursuant to judgment rendered in
2
Formerly designated as La. R.S. 33: 1421- 1450. 1, the legislature re -designated the statutes
regarding sheriffs' fees in civil matters as La. R.S. 13: 5521- 5560, pursuant to 2011 La. Acts No.
248, § 3 ( eff. Aug. 15, 2011).
3
suit in which the writ issued without the necessity of
judicial sale.
v) [ T] he sheriffs shall be entitled to receive a fee or
commission as in the case of a sale.
As set forth in La. R. S. 13: 5530( A)( 13)( a)( ii) and ( v), once the sheriff is in
possession of a writ of fieri facias and the plaintiff receives cash or other
consideration pursuant to the judgment such that the sheriff' s sale is no longer
necessary, the sheriff is nevertheless entitled to his commission as in the case of a
sale. See Tucker v. Fowler, 95- 1649 ( La. 2/ 28/ 96), 668 So. 2d 718, 720.
Here, the writ offieri facias was issued on October 24, 2019, and the sheriff
served the writ upon Ms. Jarrell on October 25, 2019. Thereafter, Ms. Jarrell
reinstated her loan, and Standard notified the sheriff of her reinstatement fee
payment of $ 19, 403. 60, requesting that the sale be cancelled. Accordingly, La.
R. S. 13: 5530( A)( 13)( a)( ii) and ( v) clearly entitles the sheriff to a commission
under these circumstances. See Tucker, 668 So. 2d at 720. 3
Having found that a commission is due the sheriff, we must now review the
amount of the commission as calculated by the trial court. Louisiana Revised
Statutes 13: 5530( A)(7)( a) sets forth that "[ f]or commission on sales of property
made by the sheriffs, three percent shall be allowed on the price of adjudication
of immovable property...." ( Emphasis added). However, La. R.S.
13: 5530( A)( 13)( b) provides:
But in the discretion of the sheriffs and under
circumstances satisfactory to them, they may modify or
reduce any fee or commission due and payable under the
provisions of this Paragraph. However, if the property is
the debtor' s homestead exempt residence and there has
been a settlement or compromise between the parties,
the fee or commission shall be calculated on the
amount of the settlement or compromise.
3 Tucker applied the former version of this statute ( i.e., La. R.S. 33: 1428( A)( 13)( a)( ii)) in effect
prior to its re -designation by 2011 La. Acts No. 248, § 3 ( eff. Aug. 15, 2011). See Tucker, 668
So. 2d at 720.
M
Emphasis added).
Homestead Exemption: Assignment of Error 1
In his first assignment of error, the sheriff argues the trial court erred in
determining that Ms. Jarrell' s property is homestead exempt for purposes of
calculating his commission under La. R.S. 13: 5530( A)( 13)( b). The sheriff avers
that although Standard argued in its motion to reduce and fix the sheriff' s
commission that Ms. Jarrell' s property is homestead exempt such that La. R.S.
13: 5530( A)( 13)( b) applies, Standard " attempts to `` have it both ways"' by arguing
in its petition for executory process that Ms. Jarrell " waiv[ ed] all homestead
exemptions to which she may be entitled under the Constitution and laws of the
State of Louisiana." Standard does not dispute that Ms. Jarrell waived the
homestead exemption, only that the waiver was of her homestead exemption from
seizure, which has no bearing on the applicability of La. R.S. 13: 5530( A)( 13)( b) to
her loan reinstatement and the calculation of the sheriff' s commission.
The starting point in the interpretation of any statute is the language of the
statute itself. When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law shall be applied as written, and its letter shall
not be disregarded in search of the intent of the legislature or under the pretext of
pursuing its spirit. A statute shall be construed to give meaning to the plain
language of the statute, and courts may not extend statutes to situations that the
legislature never intended to be covered. Barrilleaux v. Bd. of Sup' rs of
Louisiana State Univ., 2014- 1173 ( La. App. 1St Cir. 4/ 24/ 15), 170 So. 3d 1015,
1020, writ denied, 2015- 1019 ( La. 9/ 11/ 15), 176 So. 3d 1048. The meaning of a
statute is to be interpreted by looking to all the sections taken together so that no
section, clause, sentence, or word becomes superfluous or meaningless.
Barrilleaux v. NPC, Inc., 98- 0728 ( La. App. 1St Cir. 4/ 1/ 99), 730 So. 2d 1062,
1065, writ denied, 99- 1002 ( La. 5/ 28/ 99), 743 So. 2d 672.
5
Louisiana law provides for two types of homestead exemptions: exemption
from taxes and exemption from seizure. The homestead exemption from taxes, as
set forth in La. Const. Art. VII, § 20( A)( 1), exempts $ 7, 500. 00 of the " assessed
valuation" ( or $ 75, 000. 00 of the " fair market value"') of an owner' s primary
residence, i.e., her " homestead," from taxes:
The bona fide homestead, consisting of a tract of land or
two or more tracts of land ..., with a residence on one
tract ..., owned and occupied by any person or persons
owning the property in indivision, shall be exempt from
state, parish, and special ad valorem taxes to the extent of
seven thousand five hundred dollars of the assessed
valuation.l5l
The second homestead exemption— exemption from seizure— is an
exemption from seizure of the first $ 35, 000. 00 in value of a person' s home
following a sheriff' s sale, as set forth in La. R. S. 20: 1( A)(2):
The homestead is exempt from seizure and sale under
mandate, or process whatsoever, except as
any writ,
provided by Subsections C and D of this Section. This
exemption extends to thirty-five thousand dollars in value
of the homestead, except in the case of obligations
arising directly as a result of a catastrophic or terminal
illness or injury, in which case the exemption shall apply
to the full value of the homestead based upon its value
one year before such seizure. This homestead exemption
from seizure and sale shall extend automatically to the
proceeds from any property insurance policy received as
a result of damage caused by a gubernatorially declared
disaster to a homestead and that are held separately in an
escrow account identified as insurance proceeds paid
from the damage of a homestead for its repair or
replacement.
The statute defines " homestead" as "
a residence occupied by the owner and
4 See La. Const. Art. VII, § 18( A) and ( D). See also Acension Parish Assessor' s
Office, " Homestead Exemption," https:// www.ascensionassessor.com/ resources/ homestead-
text= The% 20maximum%20Homestead% 20Exemption% 20value, not% 20automat
exemption/#: —:
ically% 20granted% 20upon% 20purchase.
5 The Louisiana Constitution provides an exemption from real property tax of a dollar amount,
currently $ 7, 500 of the " assessed that is actually 10% of the true assessed value, for
value"
owners of property residing therein. See David L. Sigler, Betty A. Raglin, Sheila L. Moragas,
Cherish D. van Mullem, Rebecca S. Luster Radford, and Carrie H. Pailet, "§ 3. 22. Property Tax
Homestead Exemption," Estate Planning in Louisiana, Louisiana Practice Series, 1 La. Prac. Est.
Plan. § 3: 22 ( 2020- 2021 ed.).
0
case, Standard Mortgage Corporation and Angelique
Monique Jarrell, the fee or commission shall be
calculated on the amount of the settlement or
compromise.
We agree. The plain language of La. R.S. 13: 5530( A)( 13)( b) clearly
provides that the sheriff' s " commission shall be calculated on the amount of the
settlement or compromise." The Legislature could have chosen to state that the
commission shall be calculated on the amount of the settlement or compromise and
the remaining balance of the debtor' s loan, but it did not. The time honored
maxim, expressio unius et exdusio alterius, teaches us that when the legislature
specifically enumerates one or more things of a particular type, the legislature' s
omission of other things, which could have been easily included in the statute, is
1St
deemed intentional. Holmes v. City of Baker Sch. Bd., 2019- 0404 ( La. App.
Cir. 12/ 12/ 19), 295 So. 3d 403, 407. We must construe La. R.S.
13: 5530( A)( 13)( b) according to its plain language and not extend the statute to
situations the Legislature did not contemplate. See Barrilleaux v. Bd. of Sup' rs
of Louisiana State Univ., 170 So. 3d at 1020.
We find no error in the trial court' s interpretation and application of La. R.S.
13: 5530( A)( 13)( b) nor its calculation of the sheriff's commission. This assignment
of error is without merit.
DECREE
We affirm the trial court' s August 5, 2020 judgment. All costs of this
appeal, in the amount of $1, 532. 00, are assessed against the intervenor/ appellant,
Robert " Bobby" Webre, Sheriff and Ex Of Tax Collector of Ascension Parish,
State of Louisiana.
AFFIRMED.
9
issue is owned and occupied by Ms. Jarrell, who declared the property as her
homestead, as required by La. R.S. 13: 5530( A)( 13)( b). 5 As further required by La.
R. S. 13: 5530( A)( 13)( b), Ms. Jarrell and Standard entered into a settlement or
compromise. Based on the foregoing, we find no error in the trial' s court
determination that Ms. Jarrell' s property is homestead exempt for purposes of
calculating the sheriff' s commission under La. R.S. 13: 5530( A)( 13)( b). This
assignment of error is without merit.
Calculation of Sheriffs Commission: Assignment of Error 2
In his second assignment of error, the sheriff argues that even if the property
is homestead exempt, the trial court erred in its interpretation and application of
La. R.S. 13: 5530( A)( 13)( b) and miscalculated the sheriff' s commission. The
sheriff avers that its " long- standing position" is that " the amount of the settlement
or compromise" as provided for in La. R.S. 13: 5530( A)( 13)( b) is defined as any
payment received by the seizing creditor, such as a reinstatement fee, plus any
remaining balance on the loan foreclosed upon due the seizing creditor. The
sheriff contends that under La. R.S. 13: 5530( A)( 13)( b), his commission must be
calculated as 3% of the $ 19, 403. 60 reinstatement fee and the $ 202, 999. 91 loan
balance.
In its reasons for judgment, the trial court held:
The cited statute [ La. R. S. 13: 5530( A)( 13)( b)]
clearly states when the property is the debtor' s
homestead exempt residence and there has been a
settlement or compromise between the parties, as in this
case, Standard Mortgage Corporation and Angelique
Monique Jarrell, the fee or commission shall be
calculated on the amount of the settlement or
compromise.
5
Contrary to the assertion of the sheriff, the trial court may take judicial notice of the public
records of its own Clerk of Court' s Office, See La. C. E. art. 201( B)( 1) and ( 2). See also Roy
Anderson Corp. v. 225 Baronne Complex, L.L.C., 2017- 1005 ( La. App. 4th Cir. 7/ 11/ 18), 251
So. 3d 493, 500, writ denied, 2018- 1334 ( La. 11/ 5/ 18), 255 So. 3d 1049; Louisiana Lift &
Equip., Inc. v. Eizel, 33, 747 ( La. App. 2nd Cir. l l/ l/ 00), 770 So. 2d 859, 864.
We agree. The plain language of La. R.S. 13: 5530( A)( 13)( b) clearly
provides that the sheriff' s " commission shall be calculated on the amount of the
settlement or compromise." The Legislature could have chosen to state that the
commission shall be calculated on the amount of the settlement or compromise and
the remaining balance of the debtor' s loan, but it did not. The time honored
maxim, expressio unius et exdusio alterius, teaches us that when the legislature
specifically enumerates one or more things of a particular type, the legislature' s
omission of other things, which could have been easily included in the statute, is
1St
deemed intentional. Holmes v. City of Baker Sch. Bd., 2019- 0404 ( La. App.
Cir. 12/ 12/ 19), 295 So. 3d 403, 407. We must construe La. R. S.
13: 5530( A)( 13)( b) according to its plain language and not extend the statute to
situations the Legislature did not contemplate. See Barrilleaux v. Bd. of Sup' rs
of Louisiana State Univ., 170 So. 3d at 1020.
We find no error in the trial court' s interpretation and application of La. R. S.
13: 5530( A)( 13)( b) nor its calculation of the sheriff' s commission. This assignment
of error is without merit.
DECREE
We affirm the trial court' s August 5, 2020 judgment. All costs of this
appeal, in the amount of $1, 532. 00, are assessed against the intervenor/ appellant,
Robert " Bobby" Webre, Sheriff and Ex Officio Tax Collector of Ascension Parish,
State of Louisiana.
AFFIRMED.
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