Burgh Investments, Inc. v. Burk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BURGH INVESTMENTS, INC. CIVIL ACTION

VERSUS No. 24-2339

WILLIAM RICHARD BURK, III SECTION I

ORDER AND REASONS

Before the Court are two motions. The first is plaintiff Burgh Investments,

Inc.’s (“Burgh Investments”) motion1 for summary judgment. Defendant and third-

party plaintiff Biff Burk filed a response2 in opposition, and Burgh Investments filed

a reply.3

The second motion is William Richard Burk, III’s (“Biff Burk”) motion4 for

partial summary judgment as to third-party defendant Jacquelyn Burk’s liability for

any amounts found to be due from him. Jacquelyn Burk filed a response5 in

opposition, and Biff Burk filed a reply.6 For the reasons set forth below, the Court

grants Burgh Investment’s motion for summary judgment and grants Biff Burk’s

motion for partial summary judgment.

1 R. Doc. No. 51.

2 R. Doc. No. 61.

3 R. Doc. No. 68.

4 R. Doc. No. 62.

5 R. Doc. No. 69.

6 R. Doc. No. 72.

I. BACKGROUND

This case arises out of Biff Burk’s alleged failure to make payments due to

Burgh Investments pursuant to a Home Equity Line of Credit (“HELOC”).7 Biff Burk

executed a HELOC agreement in January 2015.8 Burgh Investments alleges that Biff

Burk thereby “agreed to a credit account arrangement where he was bound to pay

back advances, interest, and other charges to the Bank of New Orleans” or any other

person or entity to whom the Bank of New Orleans assigned the HELOC agreement.9

In September 2015, Home Bank, N.A. (“Home Bank”) became the holder of the note

(“the promissory note”) through its acquisition of Bank of New Orleans’ holding

company.10

In its complaint, Burgh Investments alleges that it purchased the rights

pursuant to the promissory note from Home Bank on August 30, 2024.11 As of the

date of purchase, Burgh Investments asserts that the account balance on the HELOC

was a total of $935,752.05, including interest and attorney’s fees.12 Furthermore,

Burgh Investments maintains that Biff Burk was required to make minimum

payments on the account, which payments he failed to make.13 Burgh Investments

states that because Biff Burk allegedly failed to make the required minimum

payments, the HELOC agreement allows Burgh Investments to terminate the

7 R. Doc. No. 1, ¶¶ 6–11.

8 Id. ¶ 6; R. Doc. No. 5, at 2.

9 R. Doc. No. 1, ¶ 6.

10 Id. ¶ 7; R. Doc. No. 5, at 2.

11 R. Doc. No. 1, ¶ 11.

12 Id. ¶ 10.

13 Id. ¶ 8.

account and require Biff Burk to pay the entire outstanding balance as well as

reasonable costs it incurred to collect the balance, including attorney’s fees.14

In addition to his answer, Biff Burk filed a third-party complaint against his

ex-wife Jacquelyn Burk and other parties.15 Relevant to this motion, Biff Burk states

that Jacquelyn Burk cosigned the HELOC agreement for the $900,000 line of credit.16

Biff and Jacquelyn Burk divorced on July 26, 2016, and they thereby entered a

consent judgment and settlement of claims (the “consent judgment”) dividing certain

assets and liabilities.17 As part of that agreement, Biff Burk states that he and

Jacquelyn Burk agreed to each assume responsibility for half of the debt owed on the

$900,000 promissory note.18 Jacquelyn Burk has allegedly failed to discharge her

obligations with respect to the promissory note.19

Burgh Investments’ motion for summary judgment argues that there is no

dispute that Biff Burk signed the promissory note and that Burgh Investments is the

holder of the promissory note.20 Regarding Burgh Investments’ demand for full

payment, Burgh Investments states that Biff Burk did not make timely minimum

14 Id. ¶¶ 12–13.

15 R. Doc. No. 5, at 5–6. The Court previously dismissed Biff Burk’s claims against his

children William Richard Burk, IV and Sarah Lazaro, as will as certain affiliates of

William Richard Burk, IV for lack of subject matter jurisdiction. See R. Doc. No. 35.

16 R. Doc. No. 5, at 8–9. The Court previously dismissed Biff Burk’s claims against

Jacquelyn Burk related to another loan for lack of subject matter jurisdiction. See R.

Doc. No. 35.

17 R. Doc. No. 5, at 10–11; see R. Doc. No. 5-2.

18 R. Doc. No. 5, at 11.

19 Id. at 12.

20 R. Doc. No. 51-1, at 8–9.

payments on the promissory note.21 Because the terms of the promissory note allow

Burgh Investments to terminate the account and require Biff Burk to pay the entire

outstanding account balance because of this failure, as well as interest and

reasonable costs incurred in collecting the account balance, Burgh Investments states

that it is entitled to summary judgment with respect to the promissory note.22

Biff Burk’s response acknowledges that summary judgment is appropriate on

a promissory note where the debtor fails to establish a defense against enforcement.

However, Biff Burk argues that there are material issues of fact regarding whether

he is obligated to pay the account balance based on three asserted defenses.23 First,

Biff Burk argues that he is entitled to a defense of fraud based on Burgh Investments’

allegedly fraudulent activity in acquiring the note.24 Second, Biff Burk argues that

the obligation of the note should be extinguished by confusion.25 Lastly, Biff Burk

argues that Burgh Investments is not a holder in due course pursuant to Louisiana’s

Uniform Commercial Code.26

Biff Burk filed his own motion for partial summary judgment against

Jacquelyn Burk seeking to hold her liable for one half of any amount due to Burgh

Investments based on the consent judgment entered into as part of Biff and Jacquelyn

Burk’s divorce.27 Jacquelyn Burk’s response argues that she was prepared to satisfy

21 Id. at 9.

22 Id. at 9–11.

23 R. Doc. No. 61, at 6.

24 Id. at 10–12.

25 Id. at 16.

26 Id. at 12.

27 R. Doc. No. 62.

her half of the promissory note in the summer of 2024 when the principal amount of

the loan was lower.28 Because Biff Burk allegedly refused to satisfy his half of the

obligation at that time, and thereby allegedly breached their agreement, Jacquelyn

Burk argues that Biff Burk should be estopped from now relying on the community

property settlement agreement to demand payment from her.29

II. STANDARD OF LAW

Summary judgment is proper when, after reviewing the materials in the

record, a court determines that there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]

party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary

judgment need not produce evidence negating the existence of a material fact; it need

only point out the absence of evidence supporting the other party’s case. Id.; see also

Fontenot v. Upjohn Co., 780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound

reason why conclusory allegations should suffice to require a trial when there is no

evidence to support them even if the movant lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

28 R. Doc. No. 69, at 1.

29 Id.

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine dispute is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine dispute of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). If the nonmovant fails to meet its burden of showing a

genuine issue for trial that could support a judgment in favor of the nonmovant,

summary judgment must be granted. See Little, 37 F.3d at 1075–76.

The party responding to the motion for summary judgment may not rest upon

the pleadings but must identify specific facts that establish a genuine issue.

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255. “Although the substance or content of the evidence submitted to

support or dispute a fact on summary judgment must be admissible . . . the material

may be presented in a form that would not, in itself, be admissible at trial.” JW Dev.,

LLC v. Indep. Specialty Ins. Co., No. CV 22-390, 2022 WL 3139133, at *1 (E.D. La.

Aug. 5, 2022) (Africk, J.) (quoting Lee v. Offshore Logistical & Transp., LLC, 859 F.3d

353, 355 (5th Cir. 2017)).

III. ANALYSIS

a. Burgh Investments’ Motion

Burgh Investments’ motion for summary judgment argues that there is no

dispute that Biff Burk signed the promissory note and that Burgh Investments is the

holder of the note.30 Biff Burk has not made timely minimum payments on the

promissory note.31 Because of the missed payments, Burgh Investments argues that

the terms of the HELOC agreement allow it to terminate the account and require Biff

Burk to pay the entire outstanding account balance as well as interest and reasonable

costs incurred in collecting the account balance.32 On this basis, Burgh Investments

argues that it is entitled to summary judgment holding Biff Burk liable for the

$935,752.05 account balance; additional interest after August 30, 2024 as outlined in

the HELOC agreement; and costs of these proceedings.33

Biff Burk’s response does not deny that he assumed the debt on the promissory

note, that Burgh Investments is the holder of the note, or the amount that is owned

on the promissory note. He does not dispute that he did not make minimum payments

towards the promissory note, arguing instead that his son William Richard Burk, IV

(“Billy Burk”) was responsible for making the payments pursuant to a separate

agreement.34 Lastly, he does not dispute that the terms of the promissory note allow

30 R. Doc. No. 51-1, at 8–9.

31 Id. at 9.

32 Id. at 9–10.

33 R. Doc. No. 51, at 1. Burgh Investments also reserves its rights to make a claim for

attorney’s fees. Id.

34 R. Doc. No. 61-1, at 3.

Burgh Investments to require payment of the entire balance along with interest and

reasonable costs as a result of this failure.35

Instead, Biff Burk argues that summary judgment is inappropriate because

there are genuine disputes of material fact regarding whether Biff Burk has a defense

against the enforcement of the note. In particular, and as mentioned previously, Biff

Burk argues that Burgh Investments committed fraud in acquiring the note and that

the obligations of the note should be extinguished by confusion.36 Additionally, Biff

Burk argues that Burgh Investments is not a holder in due course.37

Pursuant to the Louisiana Uniform Commercial Code, the holder of an

instrument is entitled to enforce that instrument. La. R.S. 10:3-301. “In an action

with respect to an instrument, the authenticity of, and authority to make, each

signature on the instrument is admitted unless specifically denied in the pleadings.”

La. R.S. 10:3-308(a). “If the validity of signatures is admitted or proved . . . a plaintiff

producing the instrument is entitled to payment if the plaintiff proves entitlement to

enforce the instrument under R.S. 10:3-301, unless the defendant proves a defense or

claim in recoupment.” La. R.S. 10:3-308(b).

Based on this statutory framework, Louisiana courts have concluded that the

holder of a note is entitled to summary judgment in cases where the signature on the

note is undisputed unless the defendant establishes a contractual defense. See, e.g.,

Am. Bank v. Saxena, 553 So. 2d 836, 844–46 (La. 1989) (concluding that summary

35 R. Doc. No. 61-1, at 3.

36 R. Doc. No. 61, at 1.

37 Id.

judgment in favor of the plaintiff to enforce a promissory note was appropriate where

the defendant admitted the debt and failed to establish a defense). Because Biff Burk

does not dispute his signature on the promissory note or that Burgh Investments is

the holder of the note, Burgh Investments is entitled to enforce the note unless Biff

Burk can establish that there is a genuine dispute of material fact regarding his

entitlement to a contractual defense. The Court addresses each of Biff Burk’s asserted

defenses in turn.

i. Fraud

Regarding its defense of fraud, Biff Burk states that his son Billy Burk is

Burgh Investments’ president and sole officer.38 Prior to forming Burgh Investments,

Billy Burk allegedly made an agreement with Biff Burk whereby Billy Burk agreed

that he would make the payments on the promissory note.39 When the promissory

note was due, Biff Burk alleges that he made an amicable demand for Billy Burk to

fulfill his obligation to pay down the note.40 Rather than repaying, Biff Burk alleges

that Billy Burk formed Burgh Investments in order to acquire the promissory note

and avoid his payment obligations.41

Burgh Investments allegedly made several misrepresentations through this

process, including misrepresenting that its business purpose was for real estate and

misrepresenting that its acquisition of the note did not violate any other

38 Id. at 4.

39 Id. at 2–3.

40 Id. at 3.

41 Id. at 4.

agreements.42 In particular, Biff Burk suggests that Burgh Investments breached the

agreement between Biff and Billy Burk regarding repayment of the note because it

was an attempt to escape responsibility to repay the note.43 Biff Burk argues that

Billy Burk’s actions through Burgh Investments in acquiring the promissory note

constituted fraud.44

Louisiana law recognizes fraud as an affirmative defense to a breach-of-

contract claim by vitiating the defendants’ consent to the contract. See La. C.C. art.

1948. Fraud is defined as “a misrepresentation or a suppression of the truth made

with the intention either to obtain an unjust advantage for one party or to cause a

loss or inconvenience to the other,” which “may result from silence or inaction.” La.

C.C. art. 1953. Because fraud acts as an affirmative defense by vitiating consent,

courts consider representations at the time that a contract is made. See, e.g., KeyBank

Nat. Ass’n v. Perkins Rowe Assocs., Inc., No. CIV. A. 09-497, 2011 WL 1457210, at *3

(M.D. La. Apr. 15, 2011) (“As a threshold matter, because fraud acts as an affirmative

defense to a breach of contract action by vitiating the defendant’s consent to the

contract, the court need not consider representations made after July 21, 2006—the

date the parties entered the loan agreement.”).

“Fraud committed by a third person vitiates the consent of a contracting party

if the other party knew or should have known of the fraud.” La. C.C. art. 1956. Thus,

courts have concluded that fraud committed by a person who is not a party to the

42 Id. at 11.

43 Id. at 11–12.

44 See id. at 9–12.

contract did not vitiate consent where the other party to the agreement neither knew

nor could have known about the fraud. See, e.g., Smith v. Frey, 703 So. 2d 751, 752–

53 (La. Ct. App. 1997) (concluding that fraud committed by a plaintiff’s attorney when

negotiating a settlement agreement did not vitiate consent because the defendant

acted in good faith in negotiating the settlement agreement, and the plaintiff did not

suggest that the defendant knew or should have known about the fraud); Ramos v.

Swiftships Shipbuilders, LLC, No. CIV. A. 13-2861, 2015 WL 5024641, at *8 (W.D.

La. Aug. 21, 2015) (concluding that the affirmative defense of fraud did not apply

when the alleged fraud was committed by the defendants’ own employee and where

the defendant did not suggest that the plaintiff knew or should have known about the

fraud).

Here, both Burgh Investments and Biff Burk agree that the original HELOC

agreement was executed with the Bank of New Orleans.45 While Biff Burk alleges

that Billy Burk and Burgh Investments acted fraudulently, nowhere does Biff Burk

suggest any fraudulent activity by the Bank of New Orleans. Nor does Biff Burk

suggest that the Bank of New Orleans knew or should have known about any of the

alleged fraudulent activity. Indeed, all of the fraudulent activity that Biff Burk

alleges concerns Burgh Investments acquisition of the promissory note, which

occurred in August 2024—more than nine years after the original HELOC agreement

in January 2015. Because Biff Burk’s allegations of fraud do not concern the original

parties to the HELOC agreement and concern only actions taken long after the

45 See R. Doc. No. 1, ¶ 6; R. Doc. No. 61, at 2.

original agreement, these alleged actions cannot vitiate Biff Burk’s consent to the

agreement. Biff Burk has not established an affirmative defense of fraud.

ii. Confusion of the Debt

Biff Burk next argues that the debt should be extinguished by confusion.46 He

bases this argument on his allegation that Billy Burk agreed to pay back his parents

for the promissory note, which was entered into for his benefit.47 Because Billy Burk

has now acquired the promissory note through his company Burgh Investments, Biff

Burk argues that Billy Burk is both the obligee and obligor on the promissory note.48

Pursuant to Louisiana law, “[w]hen the qualities of obligee and obligor are

united in the same person, the obligation is extinguished by confusion.” La. C.C. art

1903. “If a solidary obligor becomes an obligee, confusion extinguishes the obligation

only for the portion of that obligor.” La. C.C. art 1905. Likewise, “[i]f a solidary obligee

becomes an obligor, confusion extinguishes the obligation only for the portion of that

obligee.” Id.

However, the same person must be both the obligee and obligor with respect to

the same obligation. Thus, in Worldwide Remediation, Inc. v. Onebane, Bernard,

Torian, Diaz McNamara & Abell L. Firm, the Fifth Circuit affirmed the district

court’s determination that confusion did not extinguish obligations where the parties

“were both obligor and obligee of each other, but neither party was both obligor and

obligee with respect to any one obligation.” 211 F.3d 948, 951 (5th Cir. 2000).

46 Id. at 1.

47 Id. at 2–3.

48 Id. at 1.

As the Court noted in a previous order and reasons,49 Billy Burk’s and Sarah

Lazaro’s alleged obligations to their parents come from agreements separate and

apart from the promissory note and the HELOC agreement. Billy Burk is not listed

as a party to the HELOC agreement, and he is not a signatory to the agreement.50

Furthermore, the HELOC provides that Biff and Jacquelyn Burk are not permitted

to assign or transfer any rights or duties.51 Indeed, Biff Burk states that his

agreement with Billy Burk to repay portions of the $900,000 promissory note was an

oral agreement, separate from the promissory note.52 Even accepting Biff Burk’s

allegations that there is a basis to pierce the corporate veil and treat Burgh

Investments as the alter ego of Billy Burk—Billy and Biff Burk would merely be both

obligee and obligor of each other as to separate agreements. Similar to Worldwide,

there is therefore no basis to extinguish the debt by confusion.

iii. Holder in Due Course

Biff Burk lastly argues that Burgh Investments is not entitled to enforce the

note because it is not a holder in due course.53 The holder of an instrument is a holder

in due course if

(1) the instrument when issued or negotiated to the holder does not bear such

apparent evidence of forgery or alteration or is not otherwise so irregular or

incomplete as to call into question its authenticity; and

(2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without

notice that the instrument is overdue or has been dishonored or that there is

49 See R. Doc. No. 35, at 10.

50 R. Doc. No. 51-3, at 1, 4, 7.

51 Id. at 4.

52 See R. Doc. No. 61, at 2–3, 17.

53 Id. at 12–13.

an uncured default with respect to payment of another instrument issued as

part of the same series, (iv) without notice that the instrument contains an

unauthorized signature or has been altered, (v) without notice of any claim to

the instrument described in R.S. 10:3-306, and (vi) without notice that any

party has a defense or claim in recoupment described in R.S. 10:3-305(a).

La. R.S. 10:3-302.

Against a holder in due course, an obligor is limited to certain defenses set

forth in La. R.S. 10:3–305, including duress, illegality of the transaction, fraud, and

discharge of the obligor in insolvency proceedings. See La. R.S. 10:3-305(a)–(b). “The

primary benefit of holder in due course status is freedom from most defenses . . . .”

Whittington v. Patriot Homes, Inc., No. CIVA 06-1068, 2008 WL 1736820, at *6 (W.D.

La. Apr. 11, 2008). Because Biff Burk has failed to establish a defense to Burgh

Investments’ claims, it is immaterial whether Burgh Investments is a holder in due

course. See Wright v. Blue, No. CV 16-9405, 2016 WL 4799102, at *5 (E.D. La. Sept.

13, 2016) (Brown, J.) (“Here, however, it is not necessary for the Court to determine

if Wright is a holder in due course, because Blue has failed to meet his burden to

prove any of the raised defenses . . . .”).

Because Biff Burk is not entitled to any of his asserted defenses, Burgh

Investments is entitled to summary judgment with respect to its claims on the

promissory note. The Court will enter judgment against Biff Burk for the $935,752.05

account balance; additional interest after August 30, 2024 as outlined in the HELOC

agreement; and the costs of these proceedings, including attorney’s fees.

b. Biff Burk’s Motion

In the event that Biff Burk is found liable to Burgh Investments for payment

of the promissory note, Biff Burk argues that Jacquelyn Burk should be found liable

for one half of any amount owed.54 Biff Burk states that Jacquelyn Burk is a co-obligor

on the promissory note and that they share joint and several liability for the loan.55

When Biff and Jacquelyn Burk divorced in 2016, Biff Burk alleges that they entered

into a consent judgment whereby they each agreed to assume legal responsibility for

one half of the $900,000 promissory note.56 They likewise agreed to indemnify each

other with respect to their partitioned liabilities, including with respect to attorney’s

fees and costs.57 Biff Burk therefore states that he has a right to enforce Jacquelyn

Burk’s obligation for one half of any amount owed to Burgh Investments.58

The HELOC agreement provides that each borrower’s obligations are “joint,

several and solidary with all other Borrowers.”59 Pursuant to Louisiana law, “[a]

failure to perform a solidary obligation through the fault of one obligor renders all

the obligors solidarily liable for the resulting damages.” La. C.C. art. 1800. “In that

case, the obligors not at fault have their remedy against the obligor at fault.” Id.

“Among solidary obligors, each is liable for his virile portion.” La. C.C. art. 1804.

When the obligation arises from a contract, “virile portions are equal in the absence

54 R. Doc. No. 62, at 1.

55 R. Doc. No. 62-1, at 2, 6.

56 Id. at 2–3.

57 Id. at 2.

58 Id. at 7.

59 R. Doc. No. 62-5, at 21.

of agreement or judgment to the contrary.” Id. “An obligee, at his choice, may demand

the whole performance from any of his solidary obligors.” La. C.C. art. 1795. However,

“[a] party sued on an obligation that would be solidary if it exists may seek to enforce

contribution against any solidary co-obligor by making him a third party defendant

according to the rules of procedure, whether or not that third party has been initially

sued . . . .” La. C.C. art. 1805.

In this case, Burgh Investments exercised its option to demand a full

performance of the promissory note by Biff Burk. In response, Biff Burk seeks to

enforce its right to contribution from Jaquelyn Burk, which right is subject to the

terms of the consent judgment between Biff and Jacquelyn Burk.

In her response to Biff Burk’s motion, Jacquelyn Burk states that Biff Burk

should be estopped from relying on the consent judgment to demand repayment.60 As

her basis for this argument, Jacquelyn Burk states that she was willing to pay

$450,000 towards the principal that she agreed to assume in August 2024 but that

Biff Burk refused to pay his half of the obligation, leading to the instant lawsuit.61

Jacquelyn Burk thereby argues that she should not be compelled to comply with the

community property agreement after Biff Burk failed to comply with the

requirements of that agreement.62 In the alternative, Jacquelyn Burk argues that she

should not be required to indemnify Biff Burk for the increased costs that are due on

60 R. Doc. No. 69, at 1.

61 Id. at 6.

62 Id.

the promissory note as a result of Biff Burk’s failure to repay the loan in August

2024.63

i. Refusal To Perform a Commutative Contract

Jacquelyn Burk’s first argument appears to be that the consent judgment is a

commutative contract and that she may refuse to perform her obligation because Biff

Burk has failed to perform his obligation.64 A commutative contract is a contract

where “the performance of the obligation of each party is correlative to the

performance of the other.” La. C.C. art 1911. In other words, a commutative contract

is a contract in which “what is done, given or promised by one party, is considered as

equivalent to, or a consideration for what is done, given or promised by the other.”

Southside Plantation Co. v. Fabacher, 12 Teiss. 418, 419 (La. Ct. App. 1915).

“Either party to a commutative contract may refuse to perform his obligation

if the other has failed to perform or does not offer to perform his own at the same

time, if the performances are due simultaneously.” La. C.C. art 2022. However, a

party may only refuse to perform as a result of the other’s failure to perform “where

the performances of the parties are to be rendered simultaneously, either because the

contract so provides, or because the contract by its nature demands simultaneous

performances.” La. C.C. art. 2022, rev. cmt. (c). Such a refusal to perform is not

permitted “where the performances are not to be rendered simultaneously.” Id.

63 Id. at 6–7.

64 Id. at 4.

The portions of the consent judgment dealing with the $900,000 promissory

note state that “[e]ach party . . . is legally responsible for payment of one-half of the

$900,000 obligation.”65 Furthermore, “[e]ach party has the same co-equal obligation

to repay [the obligation] in equal sums.”66 The agreement does not contain a provision

requiring simultaneous performance. Nor does the agreement by its nature require

simultaneous performance with respect to the $900,000 promissory note. Accordingly,

Biff Burk’s failure to pay his half of the $900,000 promissory note simultaneously

with Jacquelyn Burk’s offer to do so in 2024 does not provide a basis for Jaquelyn

Burk to refuse to perform her obligation.

Furthermore, even if Jaquelyn Burk were permitted to refuse to perform her

obligations under the consent judgment pursuant to Louisiana Civil Code Article

2022, her remedy would be a rescission of the obligations in the consent judgment.

See Groner Apartments v. Controlled Bldg. Systems, 432 So.2d 1142, 1145 (La. Ct.

App. 1983). She would still be liable for the solidary obligations of the HELOC

agreement because the consent judgment did not alter her underlying obligations

pursuant to that agreement. Notably, Biff Burk would retain his right to enforce

Jacquelyn Burk’s contribution to their solidary obligation pursuant to Louisiana Civil

Code Article 1805. And in the absence of a contract outlining their respective

liabilities, Jaquelyn Burk’s virile portion, for which she would be liable, would be

presumed to be one half of any amounts due pursuant to the HELOC agreement. See

65 R. Doc. No. 62-6, at 19.

66 See id.

La. C.C. art. 1804. Accordingly, even if Jaquelyn Burk were permitted to refuse to

perform her consent judgment obligations, her obligations with respect to the

promissory note would be the same.

ii. Indemnity Provisions

In the alternative, Jacquelyn Burk argues that the plain language of the

consent judgment “does not require her to indemnify or hold Biff [Burk] harmless for

the increased costs that result from his own actions.”67 The consent judgment states

that the parties will assume all obligations and liabilities partitioned to him or her to

the full indemnification of the other, “including, without limitation, attorney’s fees

and costs . . . except as otherwise stated in that stipulation entered into on June 10,

2019, as Joint Exhibit No. 1.”68 In joint exhibit 1 of the consent judgment—which

concerns the Home Bank loans—the indemnity provision states merely that “the

parties indemnify and hold each other harmless” with respect to those obligations.69

There is no mention of attorney’s fees and costs. Jacquelyn Burk therefore argues

that she is not required to reimburse Biff Burk “for the costs that resulted from his

own ill-advised decision not to honor his obligations.”70

Nothing in joint exhibit 1 provides that attorney’s fees and costs are not part

of the parties’ indemnity obligations. Therefore, nothing conflicts with the inclusion

of attorney’s fees and costs in the consent judgment’s general indemnity provision.

67 R. Doc. No. 69, at 6.

68 R. Doc. No. 62-6, at 4, 6.

69 Id. at 19.

70 R. Doc. No. 69, at 7–8.

Furthermore, the consent judgment includes additional provisions, which more

specifically apply responsibility for attorney’s fees and costs to the Home Bank loans,

including the promissory note. Joint exhibit 1 concerns the parties Home Bank debts,

that is loan numbers X-1007 and X-7634.71 The consent judgment does not specify

which of these loans is the $900,000 promissory note and which is the separate

$500,000 loan not at issue in this lawsuit. However, the parties specifically agreed to

indemnify each other for attorney’s fees and costs for both loans.72 The plain language

of the consent judgment therefore requires Jacquelyn Burk to assume responsibility

for the attorney’s fees and costs as well as the balance of the loan.

IV. CONCLUSION

For the foregoing reasons,

IT IS ORDERED that Burgh Investments’ motion for summary judgment is

GRANTED. Biff Burk shall pay Burgh Investments for the outstanding account

balance of $935,752.05; additional interest after August 30, 2024 to be calculated in

accordance with the HELOC agreement; and the costs of these proceedings, including

reasonable attorney’s fees.

IT IS FURTHER ORDERED that Biff Burk’s motion for partial summary

judgment is GRANTED. Jacquelyn Burk shall contribute one half of the total

amount that Biff Burk owes to Burgh Investments.

71 Id. at 7.

72 Id. at 2–3, 6.

IT IS FURTHER ORDERED that Burgh Investments shall make any motion

for attorney’s fees within 14 days of a final judgment. Should Burgh Investments file

such a motion, it shall include detailed records of hours expended, hourly billing

rates, and costs.

IT IS FURTHER ORDERED that the parties shall meet and confer in

attempt to resolve any dispute regarding attorney’s fees. The parties shall attempt to

stipulate as to any facts that will assist the Court in making a determination.

IT IS FURTHER ORDERED that the parties shall schedule a settlement

conference with the U.S. Magistrate Judge to take place within 30 days to attempt to

resolve any disputes regarding attorney’s fees.

New Orleans, Louisiana, June 2, 2025.

Mi

Sef

UNITED STATES DISTRICT JUDGE

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