Fidelity Bank v. the Succession of Geraldine O. Dowden

• Court: Louisiana Court of Appeal
• Decided: October 7, 2020
• Docket: 2020-CA-0241
• Status: Published

Opinion

FIDELITY BANK * NO. 2020-CA-0241

VERSUS * COURT OF APPEAL THE SUCCESSION OF * GERALDINE O. DOWDEN FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-01204, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Dale N. Atkins)

Frank J. DiVittorio Patrick K. Reso John D. Miranda CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES 111 North Oak Street, Suite 200 Hammond, LA 70401

COUNSEL FOR PLAINTIFF/APPELLEE

Coreygerard Dowden 7831 Brevard Avenue New Orleans, LA 70127

APPELLANT

APPEAL DISMISSED OCTOBER 7, 2020 DNA PAB TGC This is an executory proceeding. Prior to her death, the deceased mother of

Appellant, Coreygerard Dowden,1 executed a promissory note in favor of

Appellee, Fidelity Homestead Savings Bank (“Fidelity”), and granted a mortgage

on immovable property. Appellant appeals the trial court’s July 19, 2019 judgment

denying Appellant’s petition for preliminary injunction to halt Fidelity’s petition to

seize and sell immovable property to satisfy the unpaid promissory note and

mortgage. While this appeal was pending, Fidelity filed a Motion to Dismiss

Appeal for Lack of Jurisdiction, arguing that the appeal should be dismissed as it is

both moot and untimely. For the reasons that follow, we grant the Motion to

Dismiss and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2012, Fidelity loaned Geraldine O. Dowden (“Decedent”)

$60,000 and Decedent executed a promissory note for the sum. On the same date,

as security for the promissory note, Decedent also granted a mortgage on

immovable property located at 7811 Brevard Avenue (“the Property”) in New

1 At various times in this proceeding, Appellant is identified as Corey Gerard Dowden, CoreyGerard Dowden, and Coreygerard Dowden. We use Coreygerard Dowden, as that is how Appellant has identified himself in this proceeding and the record shows that he had his birth certificate amended to reflect his name with that spelling.

1 Orleans in favor of Fidelity. Decedent rented the Property to a tenant and made

payments on the debt until her death on July 16, 2018.

Following Decedent’s death, her son, Appellant, opened her succession and

was appointed the independent administrator. Appellant continued to rent the

property to a tenant and collect rent payments. He made a few payments on the

debt to Fidelity, but ceased without paying the debt in full.

On January 31, 2019, Fidelity filed a Petition for Executory Process Without

Appraisal (“the Petition”), naming Decedent’s succession as defendant,

represented by Appellant. In the Petition, Fidelity alleged that it was the holder of

the promissory note executed by Decedent, that Appellant had failed to make

payments due under the promissory note despite amicable demand, and that the

amount owed on the note, including interest, late charges, and fees, totaled

$39,619.42, as of January 3, 2019. Fidelity attached the promissory note and the

mortgage executed by Decedent to the Petition. Fidelity prayed that the trial court

order a writ of seizure and sale to have the sheriff of Orleans Parish seize the

property, advertise the property for sale, and sell the property at public auction.

The trial court issued a writ of seizure and sale on February 13, 2019.

After several unsuccessful attempts to serve Appellant with the writ of

seizure and sale through the Orleans Parish Sheriff, Fidelity requested that the trial

court appoint an attorney ad hoc to represent Appellant for service purposes

pursuant to La. C.C.P. art. 2674. On May 30, 2019, the trial court appointed

Vincent LoCoco (“Mr. LoCoco”) as attorney ad hoc. After attempting to contact

Appellant, including through Appellant’s attorney in Decedent’s succession

proceeding, Mr. LoCoco filed a Motion for Discharge of Curator on October 1,

2019, wherein he informed the trial court that Appellant was representing himself

2 in the instant matter. Mr. LoCoco attached a document signed by Appellant stating

same.

Appellant, appearing pro se, filed several documents into the record and sent

multiple correspondences to the trial court, including sending a Notice of

Complaint, a Notice of Criminal Complaint, and a Rejection of Claim pursuant to

La. C.C.P. art. 3242.2 On July 15, 2019, Appellant filed a Petition for Preliminary

Injunction to halt the seizure and sale of the property. Appellant argued that the

seizure and sale of the property should be enjoined because he did not execute the

promissory note, the property “serves a public interest by Section 8 of HUD for a

family of three,” and he argued Fidelity was seeking to steal his mother’s property

without due compensation. Appellant also argued he was never served with the

Petition or the writ of seizure and sale.

On July 18, 2019, Fidelity responded to Appellant’s Petition for Preliminary

Injunction, arguing that, because the debt had not been extinguished, was legally

enforceable, and the procedure for seizing and selling the property by executory

process had been followed, the seizure and sale of the property could not be

enjoined. The trial court heard Appellant’s Petition for Preliminary Injunction on

July 19, 2019, and denied the petition for preliminary injunction by written order

on August 26, 2019.

2 La. C.C.P. art. 3242 provides:

The succession representative to whom a claim against the succession has been submitted, within thirty days thereof, shall either acknowledge or reject the claim, in whole or in part. This acknowledgment or express rejection shall be in writing, dated, and signed by the succession representative, who shall notify the claimant of his action. Failure of the succession representative either to acknowledge or reject a claim within thirty days of the date it was submitted to him shall be considered a rejection thereof.

3 Thereafter, Appellant filed a Motion to Stay the seizure of the property. A

hearing on the Motion to Stay was held on October 4, 2019. The trial court granted

the motion and ordered the seizure and sale of the property stayed. In its reasons

for judgment, the trial court found that service for Appellant had been requested at

an incorrect address for Appellant at 7381 Brevard Avenue in New Orleans as

opposed to Appellant’s correct address of 7831 Brevard Avenue.

On October 10, 2019, Fidelity filed an expedited Motion to Lift the Stay of

the seizure and sale of the property. In its motion, Fidelity argued that it had

requested service on Appellant at the correct address—7831 Brevard Avenue—and

that, despite several attempts, the Orleans Parish Sheriff could not serve Appellant

at that address. Based on the inability to serve Appellant through the sheriff, an

attorney ad hoc was appointed for service purposes. Fidelity argued that the

attorney ad hoc had been properly appointed and, in any case, Appellant had been

actually aware of the proceedings and had been filing pleadings pro se, thus

waiving any objections or exceptions to insufficient service. The record reflects

that Appellant was served personally with the Motion to Lift Stay via private

process server on October 28, 2019. Appellant was also served with the writ of

seizure and sale of the property the same day.

The trial court heard Fidelity’s Motion to Lift Stay of the seizure and sale of

the property on November 22, 2019. Appellant did not appear for the hearing. The

trial court lifted the stay of the seizure and sale of the property. The trial court

signed the written judgment on December 4, 2019, and notice of the signed

judgment was mailed that same day. The property was sold on December 19, 2019.

Appellant filed his Notice of Appeal on December 27, 2019.

4 While this appeal was pending, on July 6, 2020, Fidelity filed a separate

Motion to Dismiss Appeal, arguing that the appeal should be dismissed because it

was both moot and untimely. Fidelity argued that, because the property has already

been seized and sold, the issue of whether the trial court properly denied

Appellant’s petition for preliminary injunction and subsequently lifted the stay

allowing the sale of the property to proceed is now moot. Fidelity also argued that

Appellant did not file his notice of appeal within the fifteen-day delay mandated in

an executory proceeding.

DISCUSSION

On appeal, Appellant argues that the seizure and sale of the property is

fraudulent and in violation of the Racketeer Influenced and Corrupt Organizations

Act (“RICO”), though he does not state what those violations were or how the

fraud occurred. He also claims for the first time that he is entitled to $300,000 in

damages as a result of this proceeding. Appellant also argues, without any factual

support, that the Orleans Parish Civil District Court Clerk’s Office improperly

handled the documents associated with this case and that the trial court’s signature

is a forgery, though he does not state the signature to which he is referring.

Appellant disputes that he was served with the petition or the writ of seizure and

sale. At the conclusion of his brief, Appellant seems to concede that his mother

executed the promissory note and mortgage at issue here, but argues that it was

“predatory lending” on the part of Fidelity.

Fidelity counters first that Appellant was, in fact, served with notice of the

November 22, 2019 hearing and attached photographs of Appellant holding his

notice after being personally served on October 28, 2019. Fidelity also argues that

Appellant is not entitled to damages under RICO and, even so, that would not be a

5 basis upon which this Court can review the order lifting the stay of the seizure and

sale of the property. Fidelity also argues that there was never any basis to enjoin

the seizure and sale of the property because the debt was not extinguished, was

legally enforceable, and all requirements of executory proceedings were followed.

La. C.C.P. art. 2642(A) provides that a defendant in an executory proceeding

may seek an injunction from the trial court to halt the seizure and sale of property

by executory process. A trial court’s grant or denial of an injunction is reviewed

under the abuse of discretion standard. Meredith v. I Am Music, LLC, 2018-0659,

p. 4 (La. App. 4 Cir. 2/13/19); 265 So.3d 1143, 1145-46. See also Rand v. City of

New Orleans, 2012-0348, p. 3 (La. App. 4 Cir. 12/13/12), 125 So.3d 476, 479.

Before we consider the merits of the trial court’s denial of the preliminary

injunction in the instant appeal, we must first address whether the appeal is both

moot and untimely.

“When all of the legal controversies arising from a judgment become moot,

an appellate court effectively lacks jurisdiction as there is no subject matter on

which the judgment can operate.” Allums v. Allums, 2017-0021, p. 3 (La. App. 4

Cir. 5/31/17), 221 So.3d 191, 193 (citing Joseph v. Ratcliff, 2010-1342, p. 7 (La.

App. 1 Cir. 3/25/11), 63 So.3d 220, 225). “The justiciable controversy must

normally exist at every stage of the proceeding, including appellate stages. Any

judicial pronouncement after the controversy lapses is an impermissible advisory

opinion.” Id. An appellate court may order the dismissal of a matter on its own

motion as a matter of judicial economy when the issues presented in the matter

have become moot. Id. (citing Cory v. Cory, 43,447, p. 6 (La. App. 2 Cir. 8/13/08),

989 So.2d 855, 859-60).

6 A preliminary injunction, such as the one sought in this matter, “is an

interlocutory device designed to preserve the existing status pending a trial of the

issues on the merits of the case.” Jackson v. Dobard, 2015-0505, p. 3 (La. App. 4

Cir. 12/9/15), 182 So.3d 1119, 1121 (quoting Oestreicher v. Hackett, 1994-2573,

p. 5 (La. App. 4 Cir. 5/16/95), 660 So.2d 29, 32); see also Enmon Enterprises, LLC

v. City of New Orleans ex rel. New Orleans Aviation Bd., 2015-0763, pp. 3-4 (La.

App. 4 Cir. 5/4/16), 194 So.3d 709, 711-12. “[W]hen an appeal is taken from an

order denying injunctive relief and the act sought to be enjoined is accomplished

pending appeal, the appeal will be dismissed as moot.” Id., 2015-0505, p. 4, 182

So.3d at 1121 (quoting City of New Orleans Through Dep’t of Safety & Permits v.

Bd. of Comm’rs of Orleans Levee Dist., 1996-0535, p. 3 (La. App. 4 Cir. 9/26/96),

694 So.2d 975, 977). In such cases when the action sought to be enjoined has

already occurred, “the propriety of the trial court's action in denying or granting the

injunction will not be considered by the reviewing court.” Whitney Nat. Bank of

New Orleans v. Poydras Ctr. Associates, 468 So.2d 1246, 1248 (La. App. 4 Cir.

1985) “Injunction may be used to prevent but not to correct the wrong; it cannot be

employed to redress an alleged consummated wrong or undo what has already

been done.” Verdun v. Scallon Brothers Contractors, Inc., 263 La. 1073, 1078, 270

So.2d 512, 513 (1972).

Because the property was sold before Appellant took his appeal, it is now

impossible for this Court to grant injunctive relief or stay the sale of the property,

and no judgment that this Court could render on the merits of the appeal can be

made effective. See Mr. Pizza, Inc. v. Furlow, 230 So.2d 649, 652 (La. App. 4 Cir.

1970) (holding that the appeal must be dismissed where the sale of property by

executory process had already taken place at the time of the appeal); Bradley &

7 Braud, Inc. v. Canady, 342 So.2d 1184, 1185 (La. App. 1 Cir. 1977)(“It is correct

that a[n]…appeal from a judgment refusing to grant an injunction is a moot

question when the property has already been seized and sold”). Accordingly, we

must dismiss the appeal because the issues presented herein are moot.

Even if the issues presented in this matter were not moot, we lack

jurisdiction to consider them because the appeal is untimely. Untimeliness of an

appeal is a jurisdictional defect. “Louisiana jurisprudence is clear that timeliness of

an appeal is jurisdictional, and neither the trial court nor the appellate court has the

authority to extend this delay.” Dew v. Blankenship, 2014-649, p. 3 (La. App. 5

Cir. 9/30/14), 150 So.3d 934, 935 (citing Seaman v. Seaman, 2010-1295, p. 6 (La.

App. 3 Cir. 12/15/10), 54 So.3d 756, 760); see also State ex rel. E.A., 2002-996,

p. 3 (La. App. 3 Cir. 10/2/02), 827 So.2d 594, 596. “Absent a timely motion for

appeal, the appellate court lacks jurisdiction over the appeal.” Id., 2014-649, pp. 3-

4, 150 So.3d at 935 (citing Davis v. Caraway, 2013-619, p. 2 (La. App. 5 Cir.

2/12/14), 136 So.3d 81, 82)(internal citation omitted).

La. C.C.P. art. 2642(B) provides that if the defendant in the executory

proceeding chooses to appeal the trial court’s order directing the issuance of the

writ of seizure and sale of the property, the defendant must take a suspensive

appeal within fifteen days from the service of the notice of seizure. The record

shows that Appellant was served with the writ of seizure and sale personally via

private process server on October 28, 2019. Appellant did not take his appeal until

sixty days later on December 27, 2019, which is well outside the fifteen-day delay

mandated by La. C.C.P. art. 2642(B). Accordingly, we lack jurisdiction to consider

the appeal and it must be dismissed.

8 DECREE

For the foregoing reasons, we grant Fidelity’s Motion to Dismiss and the

appeal is dismissed.

APPEAL DISMISSED