71 So. 3d 1034
La. Ct. App.2011Background
- Bank of New York Mellon sued Smith to enforce a 1999 Note and related Mortgage; Smith reconvened for wrongful seizure and 42 U.S.C. 1983 due process claims, plus third-party demands against Chase and Dean Morris.
- Suit #1 (Chase’s 2004 suit) sought executory process; injunction stopped seizure in 2005 for lack of authentic evidence and conversion to ordinary proceeding.
- Judge Lewellyan dismissed Suit #1 (August 2009) without ruling on re-asserted demands; Mellon’s Suit #2 (2009) sought to enforce the Note and Mortgage against Smith.
- Note payable to Saxon; chain of transfers shows Chase and then Mellon as successor; affidavits detail transfer and that Mellon enforces as successor trustee.
- Chase’s petition relied on allegedly authentic evidence; Smith alleged unequal bargaining power, lack of notice, and unconstitutional execution; jury demand and prescription defenses were raised.
- Court addressed whether claims could be tried together (cumulation) and whether Dean Morris’s prescription defense was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| No right of action against Mellon | Smith: Mellon not holder in due course; note not endorsed to Mellon | Mellon: entitled to enforce as Saxon’s successor; affidavits prove transfer | Affirmed denial of no right of action against Mellon |
| No cause of action for due process against Chase/Mellon | Smith asserts state action via 1983 for improper executory process | Chase/Mellon argue no state action; process constitutional | Reversed for Smith’s 1983 claims; sufficiency of facts to state a claim accepted |
| Improper cumulation of actions | Actions share community of interest; proper cumulation | Actions separate or improper to cumulate | Reversed; proper cumulation found (community of interest) and severance not required |
| Jury demand strike | Main and incidental demands triable by jury; reconventional claim timely | Note enforcement action not jury-triable; art. 1732; reconventional not compulsory | Reversed; Smith entitled to jury trial on principal and reconventional claims |
| Dean Morris prescription exception | Interruption due to pending suits; timely filing in Sept. 2009 | Prescriptive period barred | Timely; interruption continued through August 2009 dismissal; new filing timely |
Key Cases Cited
- Hollis v. Norton, 586 So.2d 656 (La.App.5 Cir.1991) (affidavit sufficiency; transfer proof in default judgment)
- FGB Realty Advisors, Inc. v. Riedlinger, 671 So.2d 560 (La.App.4 Cir.1996) (holder entitled to enforce under R.S. 10:3-301; rights of enforcement can extend beyond owner)
- Buckner v. Carmack, 272 So.2d 326 (La.1973) (executory process safeguards; constitutional validity)
- Doyle v. Schultz, Not provided in text (2000) (state actor analysis for due process via executory process)
- Smigura, 371 So.2d 1363 (La.App.3 Cir.) (damages for wrongful seizure; injunctive history relevant)
- First Nat. Bank of Commerce, New Orleans v. Miller, 328 So.2d 383 (La.App.4 Cir.1976) (jury right in wrongful seizure/actions)
- Levine v. First Nat. Bank of Commerce, 948 So.2d 1051 (La.2006) (jury trial in wrongful seizure context)
- Hy-Octane Inv., Ltd v. G & B Oil Products, Inc., 702 So.2d 1057 (La.App.3 Cir.1997) (issues on compulsory reconventional demands; fairness)