294 So.3d 1082
La. Ct. App.2020Background
- Atocha St. Charles, LLC purchased 1600 St. Charles Ave. by act of sale and simultaneously executed a bond-for-deed with Terpsichore Properties, LLC requiring monthly installment payments and a balloon payment in 2020.
- Terpsichore paid two late installments (Oct–Nov 2018), then ceased payments; Atocha sent a registered Notice of Default and waited over 45 days.
- Atocha and Terpsichore executed an authentic-act Mutual Cancellation on Jan 28, 2019, giving Terpsichore a short cure period; Terpsichore did not cure or vacate.
- Atocha filed for summary eviction; the trial court denied Terpsichore’s exception (unauthorized use of summary proceeding) and granted eviction.
- Terpsichore obtained a suspensive appeal with a $20,000 bond; Atocha moved to dismiss the suspensive appeal as procedurally deficient and the bond insufficient; the appellate court dismissed the suspensive appeal (maintained devolutive) and affirmed the eviction judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary eviction was authorized (exception of unauthorized use of summary proceeding) | Atocha: presented Act of Sale, Bond for Deed, Notice of Default, Mutual Cancellation and testimony showing title, occupant status, and cessation of occupancy purpose | Terpsichore: claimed an ownership interest/title and argued Mutual Cancellation was procured under unfair circumstances | Court: Denied exception; Atocha made prima facie showing; eviction proper under bond-for-deed default rules |
| Whether Terpsichore held title under the bond for deed | Atocha: title did not transfer until full payment; bond-for-deed is contract to sell, not immediate conveyance | Terpsichore: asserted it had an ownership interest and disputed validity/effect of Mutual Cancellation | Court: Title remained with seller until installment payments satisfied; cancellation upon default was authorized; Terpsichore never acquired title |
| Whether suspensive appeal should be dismissed for procedural defects and insufficient bond | Atocha: Terpsichore failed to file timely sworn answer and post adequate bond to protect appellee; bond covered only one monthly payment | Terpsichore: sought suspensive appeal and posted $20,000 bond; contested alleged procedural defects | Court: Granted motion to dismiss suspensive appeal because bond was insufficient to protect appellee; appeal maintained as devolutive |
Key Cases Cited
- Lakewind East Apartments v. Poree, 629 So.2d 422 (La. App. 4 Cir. 1993) (monthly rental postings can reasonably protect appellee on suspensive appeal)
- Bennett v. Hughes, 876 So.2d 862 (La. App. 4 Cir. 2004) (title under bond for deed does not transfer until payments completed)
- Regua v. Saucier, 129 So.3d 798 (La. App. 4 Cir. 2013) (seller may cancel bond for deed after buyer default following statutory notice)
- Branch v. Young, 136 So.3d 343 (La. App. 5 Cir. 2014) (eviction is appropriate to regain possession after purchaser default on bond for deed)
- Keyes v. Brown, 158 So.3d 927 (La. App. 4 Cir. 2015) (contract interpretation reviewed de novo; eviction judgments reviewed for manifest error)
- Levine v. First Nat. Bank of Commerce, 948 So.2d 1051 (La. 2006) (bonds-for-deed convey rights enforceable by specific performance but do not necessarily create immediate title)