125 So. 3d 1211
La. Ct. App.2013Background
- GCB filed a petition for executory process in Jan 2011 to foreclose Warren’s three immovable properties; service attempts on Warren failed.
- An appointed curator attempted notice via advertisement and certified mail; Warren did not respond.
- Sheriff’s sale of Warren’s properties occurred on Dec 15, 2011, following notice of seizure and sale.
- Warren filed a reconventional demand seeking injunctions, annulment, and damages; GCB filed a peremptory exception of no cause of action.
- Trial court granted the exception, denied Warren’s injunction, and dismissed the reconventional demand with prejudice on Aug 3, 2012.
- Warren’s suspensive appeal was converted to a devolutive appeal on review, and the appellate court affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Warren’s reconventional demand stated a valid cause of action. | Warren argues due process and misapplication of executory process. | GCB contends the reconventional demand fails to state a recoverable claim. | No valid cause of action stated. |
| Whether the executory process was constitutional or improperly applied. | Warren asserts the process is unconstitutional and amendments removed authenticity requirements. | GCB maintains the process remains constitutional and properly supported by authentic evidence. | Constitutionality upheld; amendments did not change substantive requirements. |
| Whether GCB breached a duty of good faith and fair dealing. | Warren claims GCB owed a duty to advise on mortgage modification options. | There is no such fiduciary duty or contractual obligation to advise. | No duty or breach established; no valid claim. |
| Whether Warren can recover damages for wrongful seizure and sale. | Warren seeks damages for allegedly unlawful seizure. | Executory process completed lawfully; no damages for wrongful seizure. | No damages for wrongful seizure; affirmance of no-cause-of-action ruling. |
| Whether the appeal should be suspensive or devolutive and its jurisdictional propriety. | Warren sought a suspensive appeal; argued trial court retained jurisdiction. | GCB contends no suspensive appeal lies from denial of injunction; but appellate conversion applies. | Appeal converted to devolutive; Court retains jurisdiction. |
Key Cases Cited
- Buckner v. Carmack, 272 So.2d 326 (La. 1973) (set precedent on genuineness of authentic evidence for executory process)
- Clement v. Graves, 924 So.2d 196 (La.App. 1 Cir. 2005) (discusses appellate jurisdiction when suspensive appeals are dismissed and conversion to devolutive is appropriate)
- Acme Mortg. Co., Inc. v. Cross, 464 So.2d 945 (La.App. 4th Cir. 1985) (exec process is a harsh remedy; strict notice requirements; no action for damages absent substantive defect)
- Hibernia Nat’l Bank v. Mary, 167 So.2d 200 (La.App. 4th Cir. 1964) (discusses notice and procedure in executory proceedings)
- Brown v. Everding, 357 So.2d 1243 (La.App. 2d Cir. 1978) (limitations on grounds to annul sheriff’s sale; substantive defects required for relief)
- Deutsche Bank Nat’l Trust Co. v. Carter, 59 So.3d 1282 (La.App. 5 Cir. 2011) (discusses objections to executory proceedings post-sale)
- Brown v. Everding, 357 So.2d 1243 (La.App. 2d Cir. 1978) (statutory grounds and remedies in executory process)