DEUTSCH BANK NATIONAL * NO. 2023-CA-0747 TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST * MORTGAGE SECURITIES COURT OF APPEAL INC., ASSET-BACKED PASS- * THROUGH CERTIFICATES, FOURTH CIRCUIT SERIES 2005-R4 * STATE OF LOUISIANA VERSUS *******
MAYLOIS CONERLY PRICE, (A/K/A MAYLOIS CONERLY, MAYLOIS PRICE, MAYLOIS BACOT, MAYLOIS CONERLY BACOT)
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-00367, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Rosemary Ledet ****** (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Amanda S. Stout McGLINCHEY STAFFORD, PLLC One American Place, 14th Floor 301 Main Street Baton Rouge, LA 70801
Stephen W. Rider McGLINCHEY STAFFORD, PLLC 601 Poydras Street, 12th Floor New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLEE
Maylois C. Bacot 5696 Stillwater Drive New Orleans, LA 70128
Pro Se PRO SE DEFENDANT/APPELLANT AFFIRMED April 23, 2024 RML SCJ RDJ This appeal is a commercial litigation dispute arising out of an executory
proceeding. Defendant-in-Reconvention – Deustche Bank National Trust
Company, as Trustee for Ameriquest Mortgages Securities, Inc., Asset-Backed
Pass-Through Certificates, Series 2005-R4 (“Deutsche Bank”) – filed a petition for
executory process to foreclose on a mortgage loan (“the Loan”).1 In response, the
Plaintiff-in-Reconvention – Maylois Bacot (“Ms. Bacot”)2 – filed a reconventional
demand against, among others, Deustche Bank.3 In response, Deustche Bank filed
an exception of no cause of action. After a hearing, the trial court sustained the
exception and dismissed Ms. Bacot’s claims. From this judgment, Ms. Bacot
appeals. We affirm.
1 The caption includes one of the Appellee’s company names as “Deustch” Bank, however, the
correct spelling is “Deustche” Bank. In this opinion, we refer to it as Deustche Bank. 2 The caption refers to Ms. Bacot as “Maylois Conerly Price”; in this opinion, we refer to her as
Ms. Bacot. 3 In addition to Deustche Bank, Ms. Bacot also named the following parties as defendants-in-
reconvention (collectively “Defendants”): PHH Mortgage Services (“PHH”), and LOGS Legal Group, LLC (“LOGS”) (then-known as Shapiro & Daigrepont, LLC), McGlinchey Stafford, PLLC (“McGlinchey”) and Amanda Stout (“Ms. Stout”).
1 FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Ms. Bacot signed a promissory note payable to the order of
Ameriquest Mortgage Securities (“AMS”) together with a mortgage as security for
the note. PHH serviced the loan for Deustche Bank.4 Over time, issues arose
regarding Ms. Bacot’s mortgage payments. On several occasions, she made her
monthly payments untimely. Ms. Bacot and PHH entered into various loan
modification agreements to help her meet her obligations. Nevertheless, Ms. Bacot
failed to comply with the terms of the modification agreement. As a result,
Deustche Bank filed a petition for executory process to foreclose on Ms. Bacot’s
home. On the previous appeal in this matter, Deutsche Bank Nat'l Tr. Co. as Tr. for
Ameriquest Mortgage Sec. Inc. v. Price, 21-0430, p. 10 (La. App. 4 Cir. 12/15/21),
333 So.3d 1280, 1286 (“Deustche Bank I”), this Court held that Deustche Bank
complied with the procedures necessary to foreclose by executory process and
remanded this case for further proceedings.
On remand, Ms. Bacot filed a reconventional demand, which the trial court
ordered severed from the executory process suit. Only Ms. Bacot’s reconventional
demand is at issue in this appeal.5 Ms. Bacot makes the following allegations in her
reconventional demand:
• PHH acted deceptively and failed to report note payments that Ms. Bacot had made. Further, PHH instructed her not to take action on
4 Ocwen Loan Servicing, LLC (“Ocwen”) was the original loan servicing company for Deustche
Bank. In the time that has passed since Ms. Bacot executed the promissory note, Ocwen and PHH have merged, with PHH as the surviving entity. Thus, only PHH is mentioned in this opinion. 5 Ms. Bacot filed an original and amended reconventional demand. In this opinion, we refer to
both as “the reconventional demand.”
2 her loan while they investigated her fraud claim. This advice resulted in a wrongful foreclosure initiated by Deustche Bank.
• Defendants discriminated against Ms. Bacot due to her disability and race.
• Defendants colluded against Ms. Bacot through deceptive business practices to fraudulently deprive her of her property. Defendants willfully and wantonly breached their duties and obligations owed to Ms. Bacot.
• Defendants’ acts violated the following federal laws: 42 U.S.C. § 1985, 42 U.S.C. § 1986, 14th Amendment of the United States Constitution, the Fair Debt Collection Practices Act, the Fair Housing Act, the Fair Credit Reporting Act, and the Real Estate Settlement Procedures Act.
• PHH and Ms. Stout withheld discoverable information about the mortgage from Ms. Bacot.
• Ms. Stout violated the Louisiana Code of Civil Procedure and the Rules of Professional Conduct by failing to investigate the facts in this matter before filing for executory process and by filing false documentation.
• Deustche Bank and PHH filed and maintained false records and engaged in forgery.
In response to the reconventional demand, Defendants filed peremptory
exceptions of res judicata and no cause of action.6 After a hearing, the trial court
sustained the exception of no cause of action and dismissed all of Ms. Bacot’s
claims against Defendants with prejudice. This appeal followed.
STANDARD OF REVIEW
Appellate courts review a trial court’s ruling on a peremptory exception of
no cause of action using a de novo standard of review because the exception raises
a question of law. Herman v. Tracage Development, L.L.C., 16-0082, p. 4 (La.
6 LOGS was not a party to the exception of no cause of action sustained by the trial court. Thus,
Ms. Bacot’s allegations against LOGS are not at issue on this appeal.
3 App. 4 Cir. 9/21/16), 201 So.3d 935, 939 (citations omitted). “The function of the
peremptory exception of no cause of action is to test the legal sufficiency of the
petition, which is done by determining whether the law affords a remedy on the
facts alleged in the pleading.” State, Div. of Admin., Office of Facility Planning &
Control v. Infinity Sur. Agency, L.L.C., 10-2264, p. 8 (La. 5/10/11), 63 So.3d 940,
945-46 (citing Ramey v. DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118;
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235
(La. 1993)).
DISCUSSION
Although Ms. Bacot assigns four errors, the primary issue is whether the
trial court erred in sustaining Defendants’ exceptions of no cause of action and
dismissing Ms. Bacot’s reconventional demand. A second issue we consider is
whether the trial court’s judgment was procured by fraud on the court.7 We divide
our analysis into three parts: state law claims, federal law claims, and fraudulent
judgment claims.
State Law Claims
Ms. Bacot alleges that PHH’s advice that she not take action on her loan
while her fraud claim was investigated, coupled with Deustche Bank’s filing of the
petition for executory process, amounted to the following state law violations:
negligence, tortious interference with contract, breach of contract, fraud, and abuse
7 Ms. Bacot also presents the issue of whether the trial court violated her due process rights under
the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Louisiana Constitution by sustaining the Defendants’ exceptions of no cause of action. Because we affirm the trial court’s judgment, we do not consider this issue.
4 of process. Ms. Bacot also alleges that Deustche Bank and PHH filed and
maintained false records and engaged in forgery in violation of Louisiana criminal
law. We address these state law claims as follows.
Negligence and Contract Claims
The Louisiana Credit Agreement Statute (“Credit Agreement Statute”), La.
R.S. 6:1121, et seq., provides that “[a] debtor shall not maintain an action on a
credit agreement unless the agreement is in writing, expresses consideration, sets
forth the relevant terms and conditions, and is signed by the creditor and debtor.”
La. R.S. 6:1122. The Credit Agreement Statute further provides that “[t]he
agreement of a creditor to take or not take certain actions such as entering into a
new credit agreement, forbearing from exercising remedies under a prior credit
agreement, or extending installments due under a prior credit agreement” shall not
give rise to a claim that a new credit agreement is created unless the requirements
of La. R.S. 6:1122 are satisfied. La. R.S. 6:1123(A)(3). “A credit agreement shall
not be implied from the relationship, fiduciary, or otherwise, of the creditor and
debtor.” La. R.S. 6:1123(B).
The Louisiana Supreme Court has observed that to allow debtors to bring
breach of contract claims based on an oral agreement to lend money would
circumvent the writing requirement of the Credit Agreement Statute, thwart the
Legislature’s intent, and render the statute meaningless. King v. Parish Nat’l Bank,
04-0337, pp. 10-11 (La. 10/19/04), 885 So.2d 540, 547 (citing Jesco Const. Corp.
v. Nationsbank Corp., 02-0057, p. 4 (La. 10/25/02), 830 So.2d 989, 992).
5 Here, Ms. Bacot failed to provide a written agreement to base her claims that
PHH advised her not to take action as the fraud investigation was ongoing. This
claim does not meet the writing requirement of La. R.S. 6:1122 of the Credit
Agreement Statute. Thus, trial court did not err in dismissing Ms. Bacot’s state law
claims.
Louisiana Unfair Trade Practices Act Claims
Ms. Bacot next contends that Defendants’ acts and omissions are in violation
of the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401, et seq., (“LUPTA”).
LUPTA exempts federally insured financial institutions, their subsidiaries, and
their affiliates from its jurisdiction. La. R.S. 51:1406. Actions or transactions
subject to the jurisdiction of the commissioner of financial institutions, the
financial institutions and insurance regulators of other states, or federal bank
regulators who possess authority to regulate unfair or deceptive trade practices are
also exempt from the LUPTA. Id.
Deustche Bank is exempt because it is a federally chartered bank insured by
the Federal Deposit Insurance Company. PHH serviced Ms. Bacot’s loan with
Deustche Bank, making it a residential mortgage lender subject to the regulation of
the Louisiana Commissioner of Financial Institutions through the RMLA; thus,
PHH is exempt.8 The trial court did not err in finding that Ms. Bacot failed to state
a cause of action under LUPTA.
8 Residential mortgage lenders are instead subject to the regulation of the Louisiana Commissioner
of Financial Institutions under the Louisiana S.A.F.E Residential Mortgage Lending Act (RMLA), La. R.S. 6:1081, et seq. The RMLA defines “residential mortgage lender” as “a person who engages in a residential mortgage lending activity as a mortgage broker or mortgage lender, or
6 Claims under La. C.C.P. art. 863
Ms. Bacot alleges that Defendants violated La. C.C.P. art. 863 by failing to
investigate the matter before filing the executory process petition.9 She fails to
state any specific facts that demonstrate how Defendants did not comply with their
responsibilities to properly investigate the facts alleged in the executory process
petition. As a result, Ms. Bacot failed to state a cause of action against Defendants
under La. C.C.P. art. 863.
Claims under the Louisiana Rules of Professional Conduct
Ms. Bacot’s reconventional demand asserts that Ms. Stout and her law firm,
McGlinchey, violated the Louisiana Rules of Professional Conduct in three
respects: making intentional fraudulent misrepresentations, committing fraud on
both.” La. R.S. 6:1083(19). Servicing a mortgage loan falls under the definition of “residential mortgage lending activity.” La. R.S. 6:1083(20). 9 Louisiana Civil Code of Civil Procedure Article 863(B) provides in relevant part:
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
7 the court, and withholding discoverable evidence. None of these alleged actions is
within the jurisdiction of this Court. Addressing violations of the Louisiana Rules
of Professional Conduct is a matter within the jurisdiction of the Louisiana
Attorney Disciplinary Board and the Louisiana Supreme Court. See La. Const. Art.
V, Section V; Ricco v. Luminais, 15-1109, p. 8 (La. App. 4 Cir. 4/27/16), 192
So.3d 858, 864. We lack jurisdiction to consider this issue.
Criminal Law Claims
Ms. Bacot next alleges that Defendants filed false records in the trial court
and engaged in forgery. These are alleged criminal violations of La. R.S. 14:133
and La. R.S. 14:72. As the trial court observed in its reasons for judgment, only a
district attorney may enforce criminal statutes. Thus, the trial court did not err in
dismissing Ms. Bacot’s criminal law claims.
Federal Law Claims
Ms. Bacot asserts that Defendants’ conduct has violated the following
federal laws: the United States Constitution, the Fair Housing Act, the Fair Debt
Collection Practices Act, the Fair Credit Reporting Act, and the Real Estate
Settlement Procedures Act.
Due Process Allegations
Executory proceedings are expressly authorized under the Louisiana Code of
Civil Procedure. See La. C.C.P. art. 2631. Moreover, the Louisiana Supreme Court
has held that statutes relating to executory process are constitutional
notwithstanding alleged due process violations. See Buckner v. Carmack, 272
8 So.2d 326 (La. 1973). In Deustche Bank I, this Court held that Deustch Bank
followed proper procedure in its executory process proceeding against Ms. Bacot.
Deutsche Bank, 21-0430, p. 10, 333 So.3d 1280 at 1286.
Although Ms. Bacot asserts her due process rights were violated by
Defendants, no fact exists in the reconventional demand that specifies how due
process was denied here. A general allegation of the unconstitutionality of the
executory process is not sufficient. Thus, Ms. Bacot failed to state a cause of action
under the Constitution.
Ms. Bacot further alleges violations under 42 U.S.C. § 1985 (conspiracy to
interfere with civil rights) and 42 U.S.C § 1986 (action for neglect to prevent). The
federal Fifth Circuit has held that in order for a plaintiff to state a claim under 42
U.S.C 1985(3), the following four elements must be alleged:
1) conspiracy involving two or more persons; 2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and 3) an act in furtherance of the conspiracy; 4) which causes injury to a person or property or deprivation of any right or privilege of a citizen of the United States. 10
Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir.1994) (citation omitted).
Also, “[the] plaintiff must allege some class-based animus.” Burns-Toole v. Byrne,
10 42 U.S.C § 1985(3) (depriving persons of rights or privileges) provides in relevant part:
…[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
9 11 F.3d 1270, 1276 (5th Cir. 1994). A complaint does not sufficiently allege a
cause of action under 42 U.S.C. § 1986 unless it alleges the existence of a
conspiracy prohibited by 42 U.S.C § 1985. See Dowsey v. Wilkins, 467 F.2d 1022,
1026 (5th Cir.1972); see also Loy v. Clamme, 804 F.2d 405, 408 (7th Cir.1986)
(citation omitted).
The trial court ruled that Ms. Bacot failed to state a claim under 42 U.S.C §
§ 1985 and 1986 because she did not set forth facts to support a conspiracy
between defendants or that any Defendant acted out of racial animus. Ms. Bacot
asserts that PHH discriminated against her on the basis of her disability, which
satisfies the need to allege class-based animus. Nevertheless, her claim fails to
meet the elements outlined in Hilliard. Only one defendant, PHH, is mentioned as
having a class-based motivation in its actions against Ms. Bacot. A conspiracy
must involve two or more persons. Thus, the trial court did not err in dismissing
Ms. Bacot’s claims under 42 U.S.C § § 1985 and 1986.
Fair Housing Act Ms. Bacot also alleges that Defendants violated the Fair Housing Act. See
42 U.S.C. § 3601, et seq. To state a claim under the Fair Housing Act, a plaintiff
must plead four elements:
(1) that they were a member of a protected class, (2) they attempted to engage in a “real estate-related transaction” [with the defendant] and met all relevant qualifications for doing so; (3) the defendant refused to transact business with the plaintiff despite their qualifications, (4) and the defendant [] continued to engage in that type of transaction with other parties with similar qualifications.
Ray v. U.S. Bank Nat. Ass’n, 627 Fed.Appx. 452 (6th Cir.2015) (citation
omitted). Here, Ms. Bacot does not allege that Deustche Bank or PPH took any
10 action based on her race or disability. Thus, the trial court did not err in dismissing
Ms. Bacot’s Fair Housing Act claims.
Fair Debt Collection Practices Act
Ms. Bacot claims that Defendants violated the Federal Debt Collections
Procedures Act (FDCPA). See 15 U.S.C § 1692, et seq. Federal courts have held
that the FDCPA “is directed at independent debt collectors and not creditors
attempting to collect on their own debts.” Beck v. Alliance Funding Co., 113
F.Supp.2d 274, 275 (D. Conn.2000) (citing Meads v. Citicorp Credit Services, Inc.,
686 F.Supp. 330, 333 (S.D.Ga.1988); Aubert v. American General Finance, Inc.,
137 F.3d 976, 978). Moreover, “[u]nder the FDCPA, a debt collector does not
include ‘“any person collecting or attempting to collect any debt owed or due or
asserted to be owed or due another to the extent such activity ... concerns a debt
which was not in default at the time it was obtained by such person.’” Brumberger
v. Sallie Mae Servicing Corp., 84 F.App’x. 458, 459 (5th Cir.2004) (citing 15
U.S.C § 1692a(6)(F)).
Deustche Bank began executory proceedings to collect on its own debt.
Further, Ms. Bacot did not plead that PHH obtained the rights to service her loan
after she was in default. Neither Defendant is considered a debt collector subject to
the FDCPA. As a result, Ms. Bacot failed to state a cause of action under the
FDCPA and the trial court did not err in dismissing these claims.
Fair Credit Reporting Act
11 Ms. Bacot also alleges that Defendants’ conduct violates the Fair Credit
Reporting Act (FCRA). See 15 U.S.C. § 1681, et seq. The FCRA requires
furnishers of credit information to provide accurate information to consumer
reporting agencies. See 15 U.S.C § 1681s-2(a). Furnishers of credit information
must also conduct a reinvestigation of information provided to consumer reporting
agencies after notice of a customer dispute is received from the consumer reporting
agency. See 15 U.S.C 1681s-2(b). While no private right of action exists for
violations of 15 U.S.C § 1681s-2(a), the FCRA allows for private individuals to
sue for violations of 15 U.S.C. § 1681s-2(b). See 15 U.S.C 1681s-2(c) and 1681s-
2(d).
Ms. Bacot does not allege that any Defendant received a notice of customer
dispute from a consumer reporting agency or that they failed to reinvestigate after
receiving such a notice. Further, and as noted by the trial court in its reasons, Ms.
Bacot failed to state a cause of action for a violation of 15 U.S.C. § 1681s-2(a)
because no private right of action exists under that section. Thus, the trial court did
not err in dismissing Ms. Bacot’s FDCPA claim.
Real Estate Settlement Procedures Act
Ms. Bacot alleges that Defendants’ conduct violated the Real Estate
Settlement Procedures Act, 12 U.S.C. § 2601, et seq., (“RESPA”). As the trial
court observed in its reasons for judgment, only Sections 2605, 2607, and 2608 of
RESPA establish a private right of action. These sections mandate disclosure
relating to assignment of loan servicing, prohibit kickbacks, and prohibit property
12 sellers from requiring purchasers to buy title insurance from a specific company.
None of these sections provide for a private right of action for erroneously filing a
foreclosure action, which is the crux of Ms. Bacot’s allegations against
Defendants. Thus, the trial court did not err in dismissing Ms. Bacot’s RESPA
claim.
Fraudulent Judgment Claim
Finally, Ms. Bacot contends that the trial court’s judgment was procured by
fraud or fraud on the court. Ms. Bacot cites to La. C.C.P. art. 2004, which provides
that “[a] final judgment obtained by fraud or ill practices may be annulled.”
Nevertheless, Louisiana courts have held that “[a]n action for nullity alleging fraud
or ill practice is a relative nullity that must be asserted in a direct action filed in the
court that rendered the judgment; and the adverse party must be cited to appear as
in ordinary suits.” State v. Ramos, 18-136, p. 3 (La. App. 5 Cir. 12/17/18), 264
So.3d 564, 567 (citations omitted). Here, Ms. Bacot has not filed an action to annul
the trial court’s judgment for vices of substance in the trial court. As a result, this
issue is not properly before this Court.
DECREE
For the foregoing reasons, the trial court’s judgment dismissing Ms. Bacot’s
claims is affirmed.
AFFIRMED