Sun Realty, L.L.C. v. Doris J. Derouselle A/K/A Doris Derouselle

• Court: Louisiana Court of Appeal
• Decided: November 18, 2024
• Docket: 2024-CA-0284
• Status: Published

Opinion

SUN REALTY, L.L.C. * NO. 2024-CA-0284

VERSUS * COURT OF APPEAL DORIS J. DEROUSELLE A/K/A * DORIS DEROUSELLE FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-13437, DIVISION “A” Honorable Ellen M. Hazeur, Judge ****** Judge Nakisha Ervin-Knott ****** (Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)

Kenneth E. Pickering Gary A. Cotogno PICKERING & COTOGNO 1515 Poydras Street, Suite 430 New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLEE

R. Christian Bonin Alexandre E. Bonin Jean-Marc Bonin BONIN LAW FIRM 4224 Canal Street New Orleans, LA 70119

Thomas Ainsworth Robichaux THE ACADIANA LAW FIRM, LLC 1317 Milan Street New Orleans, LA 70115

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED November 18, 2024 NEK PAB

TGC

Appellant-Defendant, Doris J. Derouselle (“Ms. Derouselle”) appeals the

trial court’s granting of Appellee-Plaintiff’s request for foreclosure by executory

process and issuance of a writ of seizure and sale. For the following reasons, we

affirm the trial court’s ruling.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

On December 15, 2023, Appellee-Plaintiff, Sun Realty, L.L.C. (“Sun

Realty”), filed a Petition for Mortgage Foreclosure by Executory Process. In the

petition, Sun Realty alleged: (1) Ms. Derouselle executed a collateral mortgage

note (the “Note”) that was secured by an act of mortgage (the “Mortgage”) in favor

of Sun Realty’s predecessor; (2) the Mortgage provided for an acceleration of the

debt upon Ms. Derouselle’s failure to pay the Note according to its terms; (3) the

Note became due and eligible on April 21, 2023; and (4) as of October 16, 2023,

the Note had a remaining balance of $78,402.36. Sun Realty attached to the

petition a verification signed by its counsel, Michael D. Troendle; a certified copy

of the Mortgage; and an Act of Endorsement from Sun Finance Company, LLC,

transferring its interest in the Note to Sun Realty. Sun Realty subsequently filed

1 the Note into the record on December 27, 2023, and, on January 11, 2024, the trial

court signed the order directing the Sheriff to seize and sell the Property.

Thereafter, on March 5, 2024, Ms. Derouselle filed a Petition for

Declaratory Judgment, Permanent Injunction and Damages and for Preliminary

Injunction, seeking to enjoin the foreclosure of the property, and a Motion and

Order for Suspensive Appeal, seeking to appeal the issuance of the writ of seizure

and sale.1 The trial court granted Ms. Derouselle’s suspensive appeal and denied

her request to proceed with a preliminary injunction hearing in light of the

suspensive appeal.

ASSIGNMENTS OF ERROR

Ms. Derouselle’s sole assignment of error is that the trial court erred in

granting Sun Realty’s request for foreclosure by executory process. In raising this

error, Ms. Derouselle asserts two main arguments—(1) the evidence submitted in

support of the petition was insufficient because Sun Realty failed to attach the Note

when it filed the petition, and (2) the evidence submitted in support of the petition

was inauthentic because opposing counsel’s verification was deficient. Ms.

Derouselle alternatively argues that she has paid the note in full and that Sun

Realty has illegally overcharged her.

DISCUSSION

Standard of Review

Defenses and procedural objections to an executory proceeding may be

raised through an injunction, a suspensive appeal, or both. La. C.C.P. art. 2642(A).

When a party appeals an order issuing a writ of seizure and sale via executory

1 Ms. Derouselle alleges in her motion for appeal that she was served with the writ

of seizure and sale on February 20, 2024.

2 process, the only issue that may be reviewed is the authenticity of the executory

process. Avery v. CitiMortgage, Inc., 2008-2052, p. 6 (La. App. 1 Cir. 5/13/09), 15

So. 3d 240, 243 (first citing Commercial Securities Co. v. Ross, 318 So. 2d 668,

670 (La. App. 2d Cir. 1975); then citing Wells v. Standard Mortgage Corp., 2002–

0895, p. 3 (La. App. 4 Cir. 10/9/02), 865 So. 2d 93, 95). The authenticity of the

executory process leading to the issuance of a writ of seizure and sale raises a legal

question, which we review de novo. See UMB Bank, Nat’l Ass’n v. Swafford, 2023-

0245, p. 4 (La. App. 4 Cir. 11/7/23), 377 So. 3d 347, 350 (“Legal issues . . . are

reviewed de novo on appeal.”); see also Reaver v. Degas House, LLC, 2022-0464,

p. 3 (La. App. 4 Cir. 3/13/23), 359 So. 3d 570, 574 (citations omitted) (“[L] egal

questions are reviewed utilizing the de novo standard of review.”).

Foreclosure by Executory Process

“Executory process is a unique and harsh remedy requiring strict

construction.” U.S. Bank Nat’l Ass’n As Trustee for CIM Trust 2018-R5 Mortgage-

Backed Notes, Series 2018-R5 v. Owen, et al, 22-588, p. 3 (La. App. 5 Cir.

9/20/23), 370 So. 3d 1275, 1278 (citation omitted). A creditor must strictly comply

with the letter of the law in order to be entitled to use the process. Liberty Bank

and Trust Co. v. Dapremont, 2000-2146, p. 4 (La. App. 4 Cir. 12/12/01), 803 So.

2d 387, 389 (quoting Aetna Life Ins. Co. v. Lama Trusts, 28,328, p. 3 (La. App. 2

Cir. 5/8/96), 674 So. 2d 1086, 1089). Prior to issuing a writ of seizure and sale, the

trial court must “satisfy itself that the plaintiff has established the right to use

executory process.” U.S. Bank, 22-588, p. 3, 370 So. 3d at 1278 (citing La. C.C.P.

art. 2638).

In order to enforce a mortgage through executory process, the mover must

provide authentic evidence of the instrument evidencing the obligation secured by

3 the mortgage and the act of mortgage importing a confession of judgment. E.g., id.

at pp. 3-4, 370 So. 3d at 1278 (citing La. C.C.P. art. 2635(A)); see also UMB Bank,

2023-0245, p. 3, 377 So. 3d at 349-50. For the purpose of executory process, the

note or other instrument evidencing the obligation secured by the mortgage is

deemed authentic when it has been paraphed for identification with the act of

mortgage or is secured by a security agreement subject to Chapter 9 of the Uniform

Commercial Code. La. C.C.P. art. 2636(1). A certified copy of an authentic act,

such as a mortgage, is also deemed authentic for the purpose of executory process.

Id. 2632(2). A mortgage contains a confession of judgment when “the obligor

therein acknowledges the obligation secured thereby, whether then existing or to

arise thereafter, and confesses judgment thereon if the obligation is not paid at

maturity.” La. C.C.P. art. 2632.

Whether Sun Realty submitted sufficient, authentic evidence to institute foreclosure proceedings via executory process

As noted earlier, Sun Realty filed its petition for foreclosure by executory

process on December 15, 2023 and attached, among other things, (1) a certified

copy of the Mortgage that contains a confession of judgment by Ms. Derouselle;

(2) the original act of endorsement of Sun Finance Company, LLC, transferring its

interest in the Note to Sun Realty; and (3) a verification of the petition by Sun

Realty’s counsel. On December 27, 2023, Sun Realty supplemented the record

with the Note executed between Sun Finance Company, LLC and Ms. Derouselle.

Ms. Derouselle’s first argument is that the trial court should not have granted

the petition for foreclosure because Sun Realty failed to attach the Note to its

petition. However, Sun Realty supplemented the record with the Note prior to the

trial court acting on the matter. Therefore, the issue is moot.

4 Ms. Derouselle also asserts that the verification by Sun Realty’s attorney is

insufficient and fails to authenticate the evidence submitted. Before addressing this

argument, we note the law does not require that a petition for executory process be

verified. U.S. Bank Nat’l Ass’n v. Dumas, 2012-1902, p. 21 (La. App. 1 Cir.

4/3/14), 144 So. 3d 29, 44 (citing La. C.C.P. art. 2634)(other citation omitted).

Rather, as stated earlier, all that is required for foreclosure via executory process is

authentic evidence of (1) the instrument evidencing the obligation secured by the

mortgage and (2) the act of mortgage with a confession of judgment.

Here, Sun Realty produced the instrument of the obligation, i.e. the Note,

and the Mortgage importing a confession of judgment. These documents are the

bare minimum needed to establish a right to use executory process. E.g., La. C.C.P.

art. 2635(A). These documents are authentic for the purpose of executory process

under La. C.C.P. art. 2636(1)-(2). Additionally, as Sun Realty was not the original

holder of the Note, it produced the act of endorsement to establish itself as the

rightful enforcer of the Note and proper party plaintiff. This assignment of the

Note is an authentic act and is therefore authentic for the purpose of executory

process. La. C.C.P. art. 2636(2). In light of the above, we find the trial court had

sufficient evidence to establish that Sun Realty had the right to use executory

process. See U.S. Bank, 22-588, p. 3, 370 So. 3d at 1278 (citing La. C.C.P. art.

2638).

La. C.C.P. art. 2636(8) provides a catchall that “[a]ll other documentary

evidence recognized by law as authentic evidence” is deemed authentic for the

purpose of executory process. This includes evidence submitted under La. R.S.

9:5555 and La. R.S. 10:9-629. Id. Sun Realty cites these two statutes in support of

its contention that its verification is valid. Both statutes hold that the verification

5 may be based upon personal knowledge or upon information and belief derived

from the records of the secured party. La. R.S. 9:5555(B); La. R.S. 10:9-629(a)(6)

(emphasis added). Furthermore, both statutes provide that the verification does not

need to specify the records upon which such knowledge, information, or belief is

based. Id. The verification supplied in this case attests that Sun Realty’s counsel

received data sheets and other documents supplied in conjunction with the

mortgage loan. These documents purportedly show that Ms. Derouselle defaulted

on her obligation. Sun Realty’s counsel further attests that the allegations set forth

in the petition are true and correct. In its petition, Sun Realty alleges it is the holder

of the Note secured by the Mortgage, that the amount owed under the Note became

due on April 21, 2023, that Ms. Derouselle failed to pay all sums due under the

Note, and that the Note contained a remaining balance of $78,402.36.

Based on all of the above, we find that Sun Realty presented sufficient

evidence to institute foreclosure proceedings by executory process. Ms.

Derouselle’s arguments attacking the evidence submitted have no merit.

Whether the trial court erred in granting foreclosure by executory process because the underlying debt has been extinguished

Lastly, Ms. Derouselle asserts in her appeal that Sun Realty does not have

the right to foreclose on her property because she has paid the mortgage in full and

Sun Realty has been illegally over charging her. However, we are limited in this

appeal to reviewing the authenticity of Sun Realty’s petition for executory process.

E.g., Avery, 2008-2052 p. 6, 15 So. 3d at 243 (citations omitted). Moreover, Ms.

Derouselle’s alternative arguments pertain to issues not yet litigated before the trial

court, and the record is currently devoid of evidence to support her allegations.

Therefore, we pretermit any discussion regarding these issues.

6 DECREE

For the reasons stated above, we find that Sun Realty submitted documents

that set forth a prima facie case of its right to execute foreclosure proceedings via

executory process. As such, the trial court had sufficient evidence to grant Sun

Realty’s petition and order the issuance of a writ of seizure and sale. Therefore, we

AFFIRMED