210 So. 3d 425
La. Ct. App.2016Background
- Green Tree (successor to Walter) filed executory process for mortgage foreclosure; original writ of seizure and sale issued Dec. 15, 2011.
- Green Tree amended the petition in Jan. 2014 (alleging merger and higher balance) and attached an unsigned proposed order for a writ; attorneys were appointed for two unopened successions; an attorney was later appointed for Rodrick Turner.
- A sheriff’s sale occurred Nov. 26, 2014; Green Tree was the adjudicatee and obtained a writ of possession in March 2015.
- Sheriff received a call alleging the sale was unlawful and filed a Motion for Instructions asking whether to execute the writ of possession.
- Turner objected in motions/responses arguing the sale was null because the amended petition/order was not judicially approved, notice/due process problems existed, and counsel was improperly appointed; the trial court annulled the sale.
- The appellate court reversed and vacated the trial court’s annulment, holding Turner failed to properly raise annulment claims in the required procedural posture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether objections to executory process were properly raised | Green Tree: Turner failed to seek injunction, suspensive appeal, or direct ordinary action before sale; therefore objections waived | Turner: Objections timely in responses and at hearing; substantive due process and nullity claims can be raised post-sale | Held: Turner did not use required procedures; responses/motions in executory record were insufficient — annulment improperly granted |
| Validity of sale based on original (2011) writ vs. unsigned 2014 order | Green Tree: Original 2011 writ remained effective and sale valid despite unsigned later order | Turner: Sale was based on unsigned 2014 order; absence of signed order rendered sale null | Held: Court did not reach merits; procedural posture defective — annulment reversed (no proper pleading of substantive defects) |
| Notice and due process (service on Turner and deceased parents) | Green Tree: Sheriff served domiciliary notice under writ; statutory notice requirements satisfied | Turner: Blind and did not receive notice of amended petition; deceased parents lacked counsel at first writ | Held: Allegations of lack of notice/ill practices were not properly pled in an ordinary action and thus insufficient to annul sale here |
| Appointment of counsel for unopened successions / for Turner | Green Tree: Appointment was proper and did not invalidate proceedings | Turner: Counsel appointment improper (not absentee/deceased/nonresident) and affected validity | Held: These contentions were raised in piecemeal fashion and not pled as a direct action; court’s annulment lacked procedural basis and is reversed |
Key Cases Cited
- Reed v. Meaux, 292 So.2d 557 (La. 1974) (direct action allowed to annul executory process for fundamental defects)
- First Guar. Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., Inc., 529 So.2d 834 (La. 1988) (executory process is harsh and demands strict compliance)
- Deutsche Bank Nat’l Trust Co. v. Carter, 59 So.3d 1282 (La. App. 5th Cir. 2011) (motions within executory proceeding insufficient to bring direct-action annulment)
- Tapp v. Guar. Fin. Co., 158 So.2d 228 (La. App. 1st Cir. 1963) (discusses necessity of ordinary suit when seeking annulment)
- Moore v. La. Bank & Trust Co., 528 So.2d 606 (La. App. 2d Cir. 1988) (executory proceedings governed by strict statutory scheme)
- Gulf Coast Bank & Trust Co. v. Warren, 125 So.3d 1211 (La. App. 4th Cir. 2013) (debtor may annul sale for substantive defects like fraud or lack of notice when properly pleaded)