161 So. 3d 928
La. Ct. App.2015Background
- In 2007 and 2009 Michael and Christi Carter executed two promissory notes secured by Louisiana real and movable property and later moved to Texas; they defaulted in 2010.
- First South Farm Credit retained attorney Michael Kramer and initiated executory process in Louisiana; the court appointed an attorney (curator) to represent the absentee Carters; curator Mims was served.
- The immovable property sold at sheriff's sale for $180,000, leaving a claimed deficiency (~$244,696).
- The Carters sued alleging wrongful seizure/conversion, lack of notice, deprivation of due process (invoking Mennonite and 42 U.S.C. § 1983), and other claims; they later dismissed some claims.
- First South and Kramer moved for summary judgment; the trial court granted summary judgment for First South and Kramer, awarded a deficiency judgment against Mrs. Carter, and found Mr. Carter’s bankruptcy transferred his claims to the trustee (who was later substituted). The court denied summary judgment as to curator Mims (malpractice claim remained). The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the Carters "absentees" and was appointment of a curator proper? | Carters: although nonresidents, they were reachable and thus not "absentees"; no need for curator. | Kramer/First South: Carters were nonresidents who had not appointed an in-state agent; appointment required by CCP. | Carters were absentees under La. C.C.P. art. 5251(1); appointment of curator was proper. |
| Which service rules apply for nonresidents in executory process? | Carters: Louisiana long‑arm statutes (La. R.S. 13:3201/3204) required registered/certified mail to nonresidents; Kramer should have used them. | Defendants: Executory‑process service provisions (La. C.C.P. arts. 2641, 2674, 5091, etc.) govern in rem proceedings and control. | Specific executory‑process service rules govern and were applied; general long‑arm statutes do not control. |
| Did service on the appointed curator satisfy due process (Mennonite) and support dismissal of §1983 claim? | Carters: Mennonite requires reasonable efforts to notify known parties; lack of direct notice deprived them of due process and supports §1983 claim against actors under color of state law. | Defendants: Service on a properly appointed curator provides constructive/adequate notice; actual notice is not required; Kramer acted within executory‑process rules and is not a state actor for §1983 liability. | Service on the curator complied with Louisiana executory‑process statutes; alleged curator failures do not invalidate the proceedings (La. C.C.P. art. 5098). §1983 claim failed. |
| Is First South entitled to a deficiency judgment despite claimed lack of notice? | Carters: Creditor cannot obtain deficiency if mortgagor lacked notice of seizure/sale. | First South: Property was sold under executory process after appraisal and curator was properly served, so deficiency is recoverable. | Deficiency judgment proper because sale followed executory‑process rules (appraisal, service on curator); curator's alleged communication failures do not void sale. |
| Does Mr. Carter have a right of action after filing Chapter 7 bankruptcy? | Carters: Trustee should be able to pursue damages but Mr. Carter should remain a plaintiff for damages. | Defendants: Bankruptcy vests causes of action in the trustee; only trustee may enforce the debtor’s claims. | Bankruptcy transferred Mr. Carter's claims to the trustee; trustee is the proper plaintiff (issue moot after substitution). |
Key Cases Cited
- Mennonite Board of Missions v. Adams, 462 U.S. 791 (U.S. 1983) (due process requires reasonable steps to notify known interested parties before foreclosure sale)
- Clower v. Bank of Am., 5 So.3d 983 (La. App. 2d Cir.) (standard of review for summary judgment)
- Magnon v. Collins, 739 So.2d 191 (La. 1999) (summary‑judgment standards)
- LeBreton v. Rabito, 714 So.2d 1226 (La. 1998) (statutory construction: specific statutes prevail over general ones)
- Dance v. Louisiana State Univ. Med. Ctr. at Shreveport, 749 So.2d 870 (La. App. 2d Cir.) (bankruptcy vests debtor’s causes of action in the trustee)