Full text
First Tower Loan, LLC d/b/a Tower Loan of Winnfield v. Ad Atkins
Judgment rendered May 21, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,236-CA No. 56,248-CA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
***** FIRST TOWER LOAN, LLC Plaintiff-Appellant D/B/A TOWER LOAN OF WINNFIELD versus
ROY COMBS Defendant-Appellee *****
consolidated with
***** FIRST TOWER LOAN, LLC Plaintiff-Appellant D/B/A TOWER LOAN OF WINNFIELD versus
AD ATKINS, A/K/A Defendant-Appellee A D ADKINS III ***** Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court Nos. 47,276 and 47,565
Honorable Anastasia S. Wiley, Judge *****
ROGERS, CARTER & PAYNE, LLC Counsel for Appellant By: Jessica L. Greber
AD ATKINS A/K/A In Proper Person A D ATKINS III *****
Before STONE, MARCOTTE, and ELLENDER, JJ.
ELLENDER, J.
In these consolidated cases, First Tower Loan LLC, d/b/a Tower Loan of Winnfield, appeals 15 default judgments in which the district court rendered judgments for amounts different from those alleged in the petitions, verified in the affidavits of correctness, and stated in the proposed judgments. For the reasons expressed, we amend the judgments to conform to the records and, as amended, render. A separate opinion is issued for each borrower.
PROCEDURAL HISTORY
Ad Atkins, a/k/a A.D. Atkins III, of Winnfield, took out a loan from Tower Loan in May 2023. The amount financed was $2,503.93, at a stated APR of 36.20%, requiring Atkins to make 15 payments of $210.00, for a total of $3,150.00. According to Tower Loan’s petition, Atkins never made a single payment, leaving a balance of $3,049.19.
Tower Loan filed this suit on March 28, 2024, seeking the unpaid balance of $3,049.19, together with contractual interest of 31.65% per annum for one year beginning February 8, 2024, and 18% thereafter. The petition also prayed for late charges, court costs, collection costs, and contractual attorney fees. Tower Loan attached an affidavit of lost note, executed by Anthony Barnes, an officer of the company, certifying that the document (apparently the disclosure statement) was a true and correct copy of the original, which has been lost.
Atkins filed no responsive pleading, so Tower Loan moved for default judgment. It attached an affidavit of correctness executed by Charlie Hawkins, an officer of the company, verifying that the balance due was *2 $3,049.19 and that the interest rate, under the disclosure statement, was 31.65% per annum for one year beginning February 8, 2024, and 18% thereafter until paid in full. Tower Loan also provided a proposed judgment stating this balance due, interest rate, and other matters not pertinent to this appeal.
On July 15, 2024, the only minute entry in the record, the district court “reviewed record and amended judgment amount.” In the transcript, the court stated merely, “Okay, I’ve signed the judgment and returning [sic] the same to the Clerk.” The court drew a line through the principal of the judgment, changing it from $3,049.19 to $2,503.93, and through the interest rate of 31.65%/18%, changing it to “legal” interest.
Tower Loan has appealed, raising five assignments of error. Atkins has not filed a brief.
DISCUSSION
Compliance with Art. 1702
By its first assignment of error, Tower Loan urges the court erred in failing to accept Tower Loan’s affidavit of correctness, submitted in support of the proposed judgment, as prima facie proof of the indebtedness owed under the promissory note, as required by La. C.C.P. art. 1702(B)(3). By its second assignment, Tower Loan urges the court erred in failing either to sign the proposed judgment or direct that a hearing be held, as required by La. C.C.P. art. 1702(C).
For the reasons expressed in First Tower Loan v. Combs, 45,236 (La. App. 2 Cir. 5/21/25), rendered this day, these assignments have merit. The district court lacked authority to disregard the affidavit of correctness and erred in not signing the proposed judgment.
Reduction of Principal
By its third assignment of error, Tower Loan urges the court erred in reducing the principal amount of the judgment from the amount prayed for and properly rebated in accordance with La. R.S. 9:3533, to the amount financed on the face of the promissory note. For the reasons expressed in First Tower Loan v. Combs, supra, this assignment has merit.
The disclosure statement reflects a finance charge of $646.07. Total payments would come to $3,150.00; according to the affidavit, no payments were ever made, resulting in a balance of $3,049.19. There is no further requirement for an itemization of payments or how the amount sued upon was calculated. Moore Fin. Co. v. Ebarb, 46,392 (La. App. 2 Cir. 5/18/11), 70 So. 3d 856. The district court lacked authority to render judgment for a principal amount other than $3,049.19. The judgment will be amended to this amount.
Award of Interest
By its fourth assignment of error, Tower Loan urges the court erred in failing to award interest as prayed for and as mandated by La. C.C. art. 1921. By its fifth assignment, Tower Loan urges the court erred in reducing the interest in the judgment to “legal interest” from the amount stated in the promissory note, contrary to La. R.S. 9:3519 and 9:3522. For the reasons expressed in First Tower Loan v. Combs, supra, these assignments have merit.
The disclosure statement states the amount financed was $2,503.93. Under La. R.S. 9:3519, Tower Loan could charge 27% on the portion of the principal that exceeds $1,400 but does not exceed $4,000 (this portion would be $1,103.93) and 36% on the remaining portion ($1,400). The affidavit *4 states that these rates, properly apportioned, yield a contractual rate of 31.65%. Moreover, Atkins’s loan was accelerated on February 8, 2024; hence, after February 8, 2025, the interest cannot exceed 18%. The amount prayed for in the petition, and stated in the proposed judgment, complies with the applicable laws.
The district court lacked authority to award interest different from that stated in the loan agreement, the petition, and the affidavit. The judgment will be amended to provide the contractual and legal rate.
CONCLUSION
For the reasons expressed, the principal and interest stated in the judgment are amended as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff, FIRST TOWER LOAN, LLC, d/b/a TOWER LOAN OF WINNFIELD, and against the defendant, AD ATKINS, a/k/a A D ATKINS III (SSN XXX-XX-6012), in the amount of $3,049.19, together with interest thereon at the rate of 31.65% per annum for one year beginning February 8, 2024, and 18% thereafter.
In all other respects, the judgment is affirmed. All costs are to be paid by the borrower, Ad Adkins, a/k/a A.D. Adkins III.