182 So. 3d 1206
La. Ct. App.2015Background
- Bank of New York (plaintiff) filed a Petition for Executory Process (foreclosure) against William Holden to seize and sell 1757 Sherbrooke Lane for nonpayment; trial court ordered seizure in February 2008.
- A sheriff’s sale was scheduled for October 20, 2010; Bank of New York cancelled the sale after learning Holden filed Chapter 13 bankruptcy in Middle District of Georgia on September 23, 2010.
- Bankruptcy stay was modified by the bankruptcy court on April 29, 2013, allowing Bank of New York to resume state-court foreclosure proceedings.
- Nola Renewal Group, LLC moved to dismiss the state foreclosure as abandoned under La. C.C.P. art. 561 on December 4, 2014, claiming corporeal possession since January 5, 2012; trial court granted dismissal without prejudice.
- Bank of New York moved to set aside the dismissal arguing contra non valentem due to the bankruptcy stay; trial court granted the motion and vacated the dismissal on April 29, 2015, and certified the order as final.
- Appellate court held it lacked jurisdiction because an order vacating a dismissal under La. C.C.P. art. 561 is interlocutory and not immediately appealable; appeal dismissed without prejudice and Nola Renewal given 30 days to file a writ application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s vacatur of an abandonment dismissal is immediately appealable | Bank of New York argued it could proceed and sought vacatur (via motion) — implicitly that the order should stand | Nola Renewal sought immediate appellate review of the vacatur | Vacatur of an abandonment dismissal is interlocutory, not immediately appealable; appellate court lacks jurisdiction and dismissed the appeal |
| Whether contra non valentem excuses Bank of New York’s inactivity for purposes of La. C.C.P. art. 561 | Bank of New York argued the bankruptcy filing tolled/protected it from taking steps (automatic stay), so dismissal as abandoned was improper | Nola Renewal argued abandonment because no steps were taken for over three years and it possessed the property | Court did not reach merits of contra non valentem because appeal dismissed for lack of jurisdiction |
| Whether Nola Renewal had standing as an "interested person" to move under art. 561 | Nola Renewal asserted corporeal possession and recorded affidavit and lease to show interest | Bank of New York disputed dismissal but did not contest standing in jurisdictional opinion | Court did not resolve standing on appeal; dismissal for lack of jurisdiction prevented merits review |
| Whether trial court could certify vacatur as final under La. C.C.P. art. 1915(B) | Bank of New York accepted certification and judgment | Nola Renewal challenged immediate appealability | Court held the certification was improper for this interlocutory order; cannot make it immediately appealable |
Key Cases Cited
- Holthausen v. DMartino, L.L.C., 86 So.3d 639 (La. App. 5th Cir. 2012) (appealability principles for interlocutory vs. final judgments)
- Davis v. Wong, 927 So.2d 581 (La. App. 5th Cir. 2006) (definitions of final and interlocutory judgments and article 1915 context)
- Bonorden v. Gertrude Gardner Realtors, Inc., 815 So.2d 300 (La. App. 4th Cir. 2002) (vacatur of dismissal under art. 561 is interlocutory)
- Tramontin v. Tramontin, 53 So.3d 707 (La. App. 1st Cir. 2010) (limits on trial court certification of finality under art. 1915)