59 So. 3d 1282
La. Ct. App.2011Background
- Deutsche Bank filed a Petition for Executory Process (Oct 27, 2008) seeking a writ of seizure and sale for 2418 Ormond Blvd., Destrehan, asserting it held the mortgage note and appellant defaulted; balance claimed at $494,251.23 due March 21, 2008.
- A writ of seizure and sale was issued (Oct 28, 2008).
- Deutsche Bank sought a curator (Nov 24, 2008) because service at last known address appeared defective, appointing an attorney as curator ad hoc to receive service.
- Property at 2418 Ormond Blvd. was sold at sheriff’s sale to Deutsche Bank (Mar 4, 2009) following curator’s efforts and notices.
- Appellant filed an Emergency Motion to Vacate Final Judgment and Sheriff’s Sale (Dec 9, 2009); May 6, 2010 amended motion sought to nullify the sale on grounds of fraud and improper assignment; the trial court denied.
- Appellant argues fraud/ill practices; Bank contends motion is untimely, procedurally defective, and barred as collateral attack; exhibits to appellate brief struck; remand denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether motion to vacate is proper to challenge a sale via executory process | Carter argues fraud/ill practices tainted process | Deutsche Bank contends remedy is direct action or injunction; motion to vacate improper | Motion to vacate improper; not a direct action; affirmed denial |
| Whether Bank had standing to foreclose | Carter claims Deutsche Bank lacked standing as not the true owner of the note | Bank asserts it holds the note and mortgage; proper plaintiff | Standing merits not reached; direct action required for nullification; affirmance of denial |
| Whether exhibits/new evidence can be considered on appeal | Exhibits show payment history and varying balances; seeks remand for new evidence | Exhibits not in trial record and not admissible on appeal; remand denied | Exhibits struck; remand for new evidence denied |
| Whether remand for new evidence was proper | New evidence discovered; could affect outcome | Evidence unobtainable previously; remand inappropriate here | Motion to remand denied; evidence not show likely to alter outcome |
Key Cases Cited
- Reed v. Meaux, 292 So.2d 557 (La. 1973) (direct action required to annul sale; nullity actions must be ordinary suits)
- Lumar v. Mid State Trust II, 749 So.2d 712 (La.App. 5 Cir. 1999) (attacks to a sale by executory process limited to substantial defects; form defects not enough)
- American Thrift & Finance Plan Inc. v. Richardson, 977 So.2d 105 (La.App. 5 Cir. 2008) (availability of injunctive relief or suspensive appeal; process defenses limited)