216 So. 3d 231
La. Ct. App.2017Background
- In 2008 Gena Parham and husband signed a mortgage/note later assigned to Nationstar; foreclosure by executory process was filed Jan. 2, 2014.
- Writ of seizure and sale issued Jan. 6, 2014; sheriff's sale occurred April 23, 2014, and proces verbal filed June 24, 2014.
- Nationstar conveyed the property to Freddie Mac on May 12, 2014 (recorded July 21, 2014); writ of possession issued Aug. 1, 2014.
- Parham filed a Petition to Annul Sale on Aug. 8, 2014 alleging lack of notice and curator ad hoc failures; sought annulment and to revoke writ of possession.
- Nationstar and Freddie Mac moved to strike and filed exceptions (including no cause of action), arguing Art. 2642/A and R.S. 13:4112 bar collateral challenges absent injunction or suspensive appeal.
- District court denied the motion to strike and exceptions; this court granted supervisory writ, reviewed, and reversed.
Issues
| Issue | Plaintiff's Argument (Parham) | Defendant's Argument (Nationstar/Freddie Mac) | Held |
|---|---|---|---|
| Whether a petition to annul a sheriff's sale may be filed in the executory proceeding after sale | Parham: she may file to annul the sale in the same proceeding to challenge notice and due process | Defendants: Art. 2642 limits defenses to injunction or suspensive appeal; R.S. 13:4112 bars annulment once proces verbal filed and property conveyed | Held: No; post-sale annulment in the executory suit is not available once property was adjudicated and conveyed — motion to strike granted and no cause of action sustained |
| Whether Brown v. Everding permits Parham's filing here | Parham: Brown allows filing annulment in the executory suit | Defendants: Brown is distinguishable — mortgagee there waived defenses and property remained with mortgagee | Held: Brown is inapplicable; circumstances differ and defense not waived here |
| Whether failure of curator ad hoc to notify mortgagors voids the executory proceeding | Parham: curator’s failure denied due process and justifies annulment | Defendants: appointment and service on curator satisfy procedural requirements; curator’s communication failures do not void proceedings | Held: Curator’s failure to communicate may trigger limited remedies but does not nullify sale; procedural requirements were met |
| Whether due process (Mennonite) requires reversal for alleged improper notice | Parham: lack of notice violated Mennonite and deprived her of due process | Defendants: compliance with Art. 2642 and appointment/service on curator satisfied constitutionally adequate notice | Held: Court found no showing of noncompliance that would defeat proces verbal; due process claim insufficient to sustain annulment |
Key Cases Cited
- Reed v. Meaux, 292 So.2d 557 (La. 1973) (annulment of judicial sale allowed only when property remains with foreclosing creditor)
- Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (U.S. 1983) (notice must be reasonably calculated to inform interested parties)
- Gibsland Bank & Trust Co. v. Boddie, 480 So.2d 906 (La. App. 2 Cir. 1985) (Art. 2642 generally bars defenses unless injunction or suspensive appeal taken)
- First Federal Sav. & Loan of New Iberia v. Moss, 616 So.2d 648 (La. 1993) (executory process requires strict compliance)
- Walter Mortgage Co. v. Turner, 210 So.3d 425 (La. App. 2 Cir. 2016) (discussing limits on annulment of sheriff's sale)
- Gulf Coast Bank & Trust v. Warren, 125 So.3d 1211 (La. App. 4 Cir. 2013) (limited circumstances may permit attack on sale but require property remain adjudicated to creditor)