156 So. 3d 92
La. Ct. App.2013Background
- Pharr executed a mortgage note in April 2007 to Eastern Savings Bank on property at 435 Pelican Ave, New Orleans; bank seeks $187,500.
- Bank filed executory process to seize and sell the Pelican Ave property on Aug 3, 2011; service attempted at 435 Pelican Ave.
- Sheriff service attempts failed; notice of seizure returned unserved after several attempts by Oct 5, 2011.
- Bank sought curator ad hoc under La. C.C.P. art. 5091; court appointed Sonija D. Kirk as curator on Nov 7, 2011; curator filed unsuccessful-location efforts.
- Pharr filed a petition for preliminary injunction on Aug 24, 2012 to arrest seizure and sale; hearing notice requested for Eastern Savings Bank through counsel; sheriff served notice on Sept 12, 2012 (hearing held Sept 6, 2012).
- Trial court granted the injunction Sept 6, 2012 without requiring a bond; bank filed a suspensive/devolutive appeal on Sept 11, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proper notice of the injunction hearing was provided. | Pharr | Eastern Savings Bank | Notice not proper; rigid timing requirements violated. |
| Whether appointment of a curator complied with art. 2674 and 5251. | Pharr’s status as absentee supports curator; steps taken were diligent | Bank met diligence standards, service attempts adequate | Bank failed to show noncompliance; curator appointment proper. |
| Whether bond was required for the preliminary injunction. | Pharr should be bondless due to due process concerns | Security mandatory absent statutory waiver | Bond required; trial court erred in dispensing with security. |
Key Cases Cited
- Security Homestead Ass’n v. Fuselier, 591 So.2d 335 (La.1991) (diligent attempts support art. 5251 appointment)
- Carey v. Daunis, 274 So.2d 447 (La.App.4 Cir.1973) (adequate showing of diligent effort for service)
- First Nat’l Bank of Jefferson Parish v. Samuels, 618 So.2d 444 (La.App.5 Cir.1993) (repeated service attempts constitute diligence)
- Advanced Collision Services, Inc. v. State, Department of Transportation, 631 So.2d 1245 (La.App.5 Cir.1994) (security required unless waived by law)