STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-120
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE OF THE IGLOO SERIES III TRUST
VERSUS
JOHN TIMOTHY DUANE GUIDRY
AND SHARONE RENEE DAVIS GUIDRY
A/K/A SHARONE DAVIS GUIDRY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 200911048 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W. Perry, Judges.
REVERSED AND REMANDED. Trent John Gauthier Attorney at Law 115 West Main Street, Suite 19 Lafayette, LA 70501 (337) 290-1806 COUNSEL FOR DEFENDANTS/PLAINTIFFS/APPELLANTS: John Timothy Duane Guidry Sharone Davis Guidry
Jason R. Smith Dean Morris, L.L.C. P. O. Box 2867 Monroe, LA 71207 (318) 388-1440 COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE: U.S. Bank Trust National Association, as Trustee of the Igloo Series III Trust
Christopher D. Meyer Burr & Forman, LLP 190 East Capitol Street, Suite M-100 Jackson, MS 39201 (601) 355-3434 COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE: Wells Fargo Bank, N.A. GREMILLION, Judge.
Appellants, John Timothy Duane Guidry and Sharone Renee Davis Guidry,
appeal the trial court’s dismissal of their petition to annul executory proceedings and
for temporary and permanent injunctions against U.S. Bank National Association,
as Trustee of the Igloo Series III Trust (USB) and Wells Fargo, NA, in connection
with a seizure and sale by the Acadia Parish Sheriff. For the reasons that follow, we
reverse and remand to the trial court for proceedings consistent with this opinion.
FACTS
On March 15, 2007, John Timothy Duane Guidry executed a promissory note
in favor of Magnolia Mortgage, Inc., for the amount of $53,000.00. He and Sharone
Guidry also granted a mortgage over immovable property in Acadia Parish, which
is described as:
That certain lot or parcel of ground, together with all improvements thereon and thereunto belonging, situated in Acadia Parish, Louisiana, being known and designated LOT THIRTY-ONE (31) of MURRELL ADDITION TO THE TOWN OF CHURCH POINT, said property having a frontage of 66.6 feet, more or less, on Melissa Street, with the further dimensions, boundaries, shape, form, location and configuration as shown on that certain plat of survey of said subdivision dated March 23, 1965, prepared by C. W. Lyman, Consulting Engineer attached to that act recorded under Entry No. 352578, of the records of Acadia Parish Clerk of Court; subject to restrictions, servitudes, rights-of-way and outstanding mineral rights of record affecting the property.
Being the same property acquired by Gene Kuntz from John [T]ommy Guidry Sr. and Debra Ann Guidry by that Act of Sheriffs Deed dated May 8, 2002 and recorded May 31, 2002 under Entry No. 699949 of the records of Acadia Parish, Louisiana.
On September 22, 2009, Wells Fargo Bank, NA, filed an action for executory
process for the seizure and sale of the above described property. A succession of
Acadia Parish Sheriffs seized the property three times: on October 5, 2009, July 26, 2010, and April 9, 2018.1 In the interim, USB was substituted as plaintiff for Wells
Fargo. On May 30, 2018, the property was sold by the Acadia Parish Sheriff. The
record reflects that notices of the impending sale directed to John Timothy Duane
Guidry and Sharone Renee Davis Guidry a/k/a Sharone Davis Guidry had been
personally served on “John T. Guidry” on April 10, 2018.
On July 12,2018, the Guidrys filed a “PETITION TO ANNUL EXECUTORY
PROCEEDINGS AND JUDICIAL SALE, FOR TEMPORARY RESTRAINING
ORDER, INJUNCTIVE RELIEF FOR WRONGFUL SEIZURE DAMAGES,
ATTORNEY FEES, COSTS.” The petition alleged that the original filing for
executory process by Wells Fargo omitted the promissory note. According to the
Guidrys, at the time the writ of seizure and sale was issued in 2018, they were in the
process of negotiating a loan modification agreement with BSI Financial Services, a
duly-authorized representative of USB; in spite of this, USB moved ahead with the
seizure and sale, which the Guidrys allege indicates that USB was not acting in good
faith. Mr. Guidry denied that he had been served at all. Lastly, Mrs. Guidry asserted
that she was never served with the petition for executory process. Both Guidrys
denied that they were served with the notice of seizure and sale. The petition prayed
for a temporary restraining order, preliminary and permanent injunctive relief, and
damages for wrongful seizure, including attorney fees and costs.
Wells Fargo and USB filed “responses” that asserted that the Guidrys
improperly utilized summary proceedings and were required to file a petition in a
separate ordinary proceeding. The Guidrys countered that they did file a petition
and that filing same in a separate proceeding amounts to a vain and useless act
1 It has been asserted that the delays were necessitated by the filing of five bankruptcy proceedings by the Guidrys. This is not corroborated by the record but is confirmed by counsel for the Guidrys in a memorandum. 2 because the two matters would have to be consolidated. Wells Fargo also argued
that it had no interest in the suit because USB had been substituted as plaintiff.
The trial court heard the requests for dismissal by Wells Fargo and USB. The
original note, the trial court found, was in the suit record, which was introduced into
evidence by the Guidrys. The service returns were also noted by the trial court.
Based upon these facts, the trial court dismissed the Guidrys’ demands.
The Guidrys then perfected this appeal and assert one assignment of error, the
trial court’s dismissal of their action via summary proceeding.
DISCUSSION AND ANALYSIS
This suit originated as an executory proceeding. “Executory proceedings are
those which are used to effect the seizure and sale of property, without previous
citation and judgment, to enforce a mortgage or privilege thereon evidenced by an
authentic act importing a confession of judgment, and in other cases allowed by law.”
La.Code Civ.P. art. 2631. “[Executory process’s] procedural bases are the debtor’s
confession of judgment before a notary public and two witnesses; supporting
authentic evidence; and a determination by a judge that the submissions are adequate
for the seizure and sale of the encumbered property to satisfy the debt.” Buckner v.
Carmack, 272 So.2d 326, 329 (La.1973). “Executory process, of course, is a harsh
remedy and a party employing same must strictly comply with the requirements for
its use set forth in LSA-C.C.P. Art. 2631 et seq.” Commercial Credit Corp. v. Nolan,
385 So.2d 1246, 1248 (La.App. 3 Cir.1980).
However, pursuant to Louisiana Revised Statutes 13:4112, once the sheriff
has filed the proces verbal of the sale or filed the sale for recordation, actions to
annul or set aside the sale by executory process are barred when the basis is “any
objection to form or procedure in the executory proceedings, or by reason of the
lack of authentic evidence to support the order and seizure[.]” After the Acadia 3 Parish Sheriff filed the proces verbal, the Guidrys were barred from raising
objections such as form or procedure or lack of authentic evidence.
In Nolan, the plaintiff filed an executory proceeding to seize and sell a mobile
home that secured a chattel mortgage. The mobile home was seized. Within a month
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-120
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE OF THE IGLOO SERIES III TRUST
VERSUS
JOHN TIMOTHY DUANE GUIDRY
AND SHARONE RENEE DAVIS GUIDRY
A/K/A SHARONE DAVIS GUIDRY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 200911048 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W. Perry, Judges.
REVERSED AND REMANDED. Trent John Gauthier Attorney at Law 115 West Main Street, Suite 19 Lafayette, LA 70501 (337) 290-1806 COUNSEL FOR DEFENDANTS/PLAINTIFFS/APPELLANTS: John Timothy Duane Guidry Sharone Davis Guidry
Jason R. Smith Dean Morris, L.L.C. P. O. Box 2867 Monroe, LA 71207 (318) 388-1440 COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE: U.S. Bank Trust National Association, as Trustee of the Igloo Series III Trust
Christopher D. Meyer Burr & Forman, LLP 190 East Capitol Street, Suite M-100 Jackson, MS 39201 (601) 355-3434 COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE: Wells Fargo Bank, N.A. GREMILLION, Judge.
Appellants, John Timothy Duane Guidry and Sharone Renee Davis Guidry,
appeal the trial court’s dismissal of their petition to annul executory proceedings and
for temporary and permanent injunctions against U.S. Bank National Association,
as Trustee of the Igloo Series III Trust (USB) and Wells Fargo, NA, in connection
with a seizure and sale by the Acadia Parish Sheriff. For the reasons that follow, we
reverse and remand to the trial court for proceedings consistent with this opinion.
FACTS
On March 15, 2007, John Timothy Duane Guidry executed a promissory note
in favor of Magnolia Mortgage, Inc., for the amount of $53,000.00. He and Sharone
Guidry also granted a mortgage over immovable property in Acadia Parish, which
is described as:
That certain lot or parcel of ground, together with all improvements thereon and thereunto belonging, situated in Acadia Parish, Louisiana, being known and designated LOT THIRTY-ONE (31) of MURRELL ADDITION TO THE TOWN OF CHURCH POINT, said property having a frontage of 66.6 feet, more or less, on Melissa Street, with the further dimensions, boundaries, shape, form, location and configuration as shown on that certain plat of survey of said subdivision dated March 23, 1965, prepared by C. W. Lyman, Consulting Engineer attached to that act recorded under Entry No. 352578, of the records of Acadia Parish Clerk of Court; subject to restrictions, servitudes, rights-of-way and outstanding mineral rights of record affecting the property.
Being the same property acquired by Gene Kuntz from John [T]ommy Guidry Sr. and Debra Ann Guidry by that Act of Sheriffs Deed dated May 8, 2002 and recorded May 31, 2002 under Entry No. 699949 of the records of Acadia Parish, Louisiana.
On September 22, 2009, Wells Fargo Bank, NA, filed an action for executory
process for the seizure and sale of the above described property. A succession of
Acadia Parish Sheriffs seized the property three times: on October 5, 2009, July 26, 2010, and April 9, 2018.1 In the interim, USB was substituted as plaintiff for Wells
Fargo. On May 30, 2018, the property was sold by the Acadia Parish Sheriff. The
record reflects that notices of the impending sale directed to John Timothy Duane
Guidry and Sharone Renee Davis Guidry a/k/a Sharone Davis Guidry had been
personally served on “John T. Guidry” on April 10, 2018.
On July 12,2018, the Guidrys filed a “PETITION TO ANNUL EXECUTORY
PROCEEDINGS AND JUDICIAL SALE, FOR TEMPORARY RESTRAINING
ORDER, INJUNCTIVE RELIEF FOR WRONGFUL SEIZURE DAMAGES,
ATTORNEY FEES, COSTS.” The petition alleged that the original filing for
executory process by Wells Fargo omitted the promissory note. According to the
Guidrys, at the time the writ of seizure and sale was issued in 2018, they were in the
process of negotiating a loan modification agreement with BSI Financial Services, a
duly-authorized representative of USB; in spite of this, USB moved ahead with the
seizure and sale, which the Guidrys allege indicates that USB was not acting in good
faith. Mr. Guidry denied that he had been served at all. Lastly, Mrs. Guidry asserted
that she was never served with the petition for executory process. Both Guidrys
denied that they were served with the notice of seizure and sale. The petition prayed
for a temporary restraining order, preliminary and permanent injunctive relief, and
damages for wrongful seizure, including attorney fees and costs.
Wells Fargo and USB filed “responses” that asserted that the Guidrys
improperly utilized summary proceedings and were required to file a petition in a
separate ordinary proceeding. The Guidrys countered that they did file a petition
and that filing same in a separate proceeding amounts to a vain and useless act
1 It has been asserted that the delays were necessitated by the filing of five bankruptcy proceedings by the Guidrys. This is not corroborated by the record but is confirmed by counsel for the Guidrys in a memorandum. 2 because the two matters would have to be consolidated. Wells Fargo also argued
that it had no interest in the suit because USB had been substituted as plaintiff.
The trial court heard the requests for dismissal by Wells Fargo and USB. The
original note, the trial court found, was in the suit record, which was introduced into
evidence by the Guidrys. The service returns were also noted by the trial court.
Based upon these facts, the trial court dismissed the Guidrys’ demands.
The Guidrys then perfected this appeal and assert one assignment of error, the
trial court’s dismissal of their action via summary proceeding.
DISCUSSION AND ANALYSIS
This suit originated as an executory proceeding. “Executory proceedings are
those which are used to effect the seizure and sale of property, without previous
citation and judgment, to enforce a mortgage or privilege thereon evidenced by an
authentic act importing a confession of judgment, and in other cases allowed by law.”
La.Code Civ.P. art. 2631. “[Executory process’s] procedural bases are the debtor’s
confession of judgment before a notary public and two witnesses; supporting
authentic evidence; and a determination by a judge that the submissions are adequate
for the seizure and sale of the encumbered property to satisfy the debt.” Buckner v.
Carmack, 272 So.2d 326, 329 (La.1973). “Executory process, of course, is a harsh
remedy and a party employing same must strictly comply with the requirements for
its use set forth in LSA-C.C.P. Art. 2631 et seq.” Commercial Credit Corp. v. Nolan,
385 So.2d 1246, 1248 (La.App. 3 Cir.1980).
However, pursuant to Louisiana Revised Statutes 13:4112, once the sheriff
has filed the proces verbal of the sale or filed the sale for recordation, actions to
annul or set aside the sale by executory process are barred when the basis is “any
objection to form or procedure in the executory proceedings, or by reason of the
lack of authentic evidence to support the order and seizure[.]” After the Acadia 3 Parish Sheriff filed the proces verbal, the Guidrys were barred from raising
objections such as form or procedure or lack of authentic evidence.
In Nolan, the plaintiff filed an executory proceeding to seize and sell a mobile
home that secured a chattel mortgage. The mobile home was seized. Within a month
of the seizure, the Nolans filed a petition to enjoin the seizure and sale because the
debt installment had actually been paid. This petition also prayed for damages and
attorney fees. The trial court ruled in favor of the Nolans. Commercial Credit did
not contest the propriety of filing the Nolans’ petition in the executory proceeding.
The Louisiana Code of Civil Procedure allows for the conversion of an
executory proceeding to an ordinary proceeding in two instances. Pursuant to
Article 2644, the plaintiff in an executory proceeding may convert it to an ordinary
proceeding by filing an amended petition asking that the defendant be cited and
served and praying for judgment on the obligation. Article 2772 allows the
conversion of an executory proceeding to an ordinary proceeding when the creditor
seeks a deficiency judgment after the thing is seized and sold.
The Guidrys argue that the “responses” filed by USB and Wells Fargo amount
to summary proceedings that may not be used to dispense with an ordinary
proceeding. USB argues that the Guidrys improperly asserted a demand for damages
in an executory proceeding.
We will address the Guidrys’ contention first. A “response” is not a pleading
recognized in the Louisiana Code of Civil Procedure. Those are petitions, answers,
exceptions, and written motions. La.Code Civ.P. art. 852. From a purely technical
perspective, the appropriate pleading would have been an exception or written
motion; however, the substance of a pleading and not its caption determines its
nature. Barber v. Jefferson, 17-72 (La.App. 3 Cir. 5/17/17), 221 So.3d 264.
4 The response of USB asserted that the Guidrys were improperly using an
executory proceeding to assert a claim for damages. The substance of the USB
response will be treated as a dilatory exception of unauthorized use of an executory
proceeding and improper cumulation of actions. See La.Code Civ.P. art. 926.
In Nationstar Mortgage, LLC v. Schales, 18-439 (La.App. 3 Cir. 12/12/18),
261 So.3d 912, a mortgagee filed properly authenticated and verified executory
proceedings to foreclose on defendant’s home. The trial court found that the
mortgagee was entitled to a writ of seizure and sale. The property was seized.
Thereafter, the mortgagor filed a petition for a preliminary injunction, restraining
order, and a reconventional demand for damages against the mortgagee. The
mortgagee filed exceptions of unauthorized use of summary and executory
proceedings, improper cumulation of actions, no cause of action, and prescription.
The trial court granted the mortgagee’s exception, and the mortgagor appealed.
This court noted that the demand for damages is actually an incidental demand
in response to the principal demand for executory process. According to La.Code
Civ.P. art. 1036(B), “[t]he mode of procedure employed in the incidental action shall
be the same as that used in the principal action, except as provided by law.” On this
basis, we affirmed the trial court’s grant of the exception of improper use of
executory proceedings. Similarly, we affirmed the trial court’s maintenance of the
exception of improper cumulation of actions. We reversed the trial court’s grant of
the exception of no cause of action. We ordered that the improperly cumulated
actions be severed from the executory proceeding, assigned a new docket number or
that the mortgagor be ordered to amend his pleading to conform to proper procedure.
We find that the Nationstar approach is the appropriate resolution to the
present matter. The trial court did not err in maintaining USB’s exceptions; rather,
it erred in dismissing the Guidrys’ demands. Therefore, we reverse the trial court’s 5 dismissal of the Guidrys’ demands and remand the matter to the trial court for the
entry of an order that severs the Guidrys’ “petition” from the executory proceeding
and assigns it a new docket number so that it can proceed as an ordinary action.
The costs of this appeal are assessed equally between the Guidrys and the
defendants.
REVERSED AND REMANDED.