U.S. Bank, N.A. v. Oglesby

273 So. 3d 367
CourtLouisiana Court of Appeal
DecidedMay 15, 2019
DocketCA 19-251
StatusPublished

This text of 273 So. 3d 367 (U.S. Bank, N.A. v. Oglesby) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Bank, N.A. v. Oglesby, 273 So. 3d 367 (La. Ct. App. 2019).

Opinion

Pickett, Judge.

On April 25, 2019, the plaintiff-appellee, U.S. Bank, N.A., as Trustee Successor by Merger to First Star Bank, N.A., as Trustee for New Century Home Equity Loan Trust, filed a Motion to Strike the Amended Motion and Order for Devolutive Appeal and the Trial Court's Order on the Amended Motion for Devolutive Appeal. For the following reasons, we grant the motion to strike.

On April 8, 2013, the plaintiff filed the instant foreclosure action against the defendant-appellant, Kayla Givs Oglesby. On November 27, 2018, the defendant, pro se, filed an "Injunction to Arrest the Seizure of Sheriff Sale," seeking to enjoin the pending sale of the property subject to foreclosure. The trial court denied the petition on January 28, 2019. On February 27, 2019, the defendant filed a Motion and Order for Devolutive Appeal which was granted that same day, setting a return date of March 28, 2019. This court issued its Notice of Lodging and Briefing Order on April 1, 2019.

On April 2, 2019, the defendant filed, in the district court, an Amended Motion and Order for Devolutive Appeal, seeking the suspension of the pending April 10, 2019 sheriff's sale of the property. An order granting the motion and suspending the sheriff's sale until the resolution of this appeal was signed by the trial court on April 3, 2019.

The plaintiff argues that the defendant did not notify it of her amended motion for appeal as required by La.Code Civ.P. art. 1313 ; thus, the plaintiff was not provided an opportunity to object to the motion. The plaintiff states that it first learned of the *369motion when it received the Amended Notice of Appeal on April 8, 2019.

Next, the plaintiff asserts that the defenses to an executory proceeding and writ of seizure and sale are set forth in La.Code Civ.P. art. 2642 as follows:

A. Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.
B. A suspensive appeal from an order directing the issuance of a writ of seizure and sale shall be taken within fifteen days of service of the notice of seizure as provided in Article 2721. The appeal is governed by the provisions of Articles 2081 through 2086, 2088 through 2122, and 2124 through 2167, except that the security therefor shall be for an amount exceeding by one-half the balance due on the debt secured by the mortgage or privilege sought to be enforced, including principal, interest to date of the order of appeal, and attorney fees, but exclusive of court costs.

Pursuant to Article 2642, to enjoin the sheriff's sale, the plaintiff maintains that the defendant was required to file a suspensive appeal and post security. Instead of seeking a suspensive appeal as mandated by Article 2642, more than five years after the writ of seizure and sale was issued, the defendant filed for injunctive relief.

Additionally, the plaintiff argues that a devolutive appeal "does not suspend the effect or the execution of an appealable order or judgment." La.Code Civ.P. art. 2087(A). Further, pursuant to La.Code Civ.P. art. 3612, "you cannot have a suspensive appeal from a judgment refusing to grant a preliminary injunction, for if there was no injunction issued, there is nothing to suspend. Hibernia National Bank of New Orleans v. Mary , 167 So.2d 200 (La.App.4th Cir., 1964) ; Utah-Louisiana Investment Company v. International Development, Inc. , 262 So.2d 553 (La.App.1st Cir.[ ] 1972)." Murry v. City of Oakdale , 276 So.2d 368, 371 (La.App. 3 Cir.1973).

Louisiana Code of Civil Procedure Article 3612 provides:

A. There shall be no appeal from an order relating to a temporary restraining order.
B. An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
D. Except as provided in this Article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.

The plaintiff argues that the defendant's Amended Motion and Order for Devolutive Appeal actually sought a suspensive appeal which is not allowed from the denial of an injunction. Even if the law allowed a suspensive appeal, the plaintiff maintains that a suspensive appeal requires the trial court to set security in an amount exceeding one-half the balance on the debt to be timely posted by the defendant. La.Code Civ.P. art. 2642. The plaintiff concludes *370that the defendant's motion was contrary to applicable law.

The plaintiff also argues that at the time the defendant filed the motion, the instant appeal was already lodged in this court; thus, under La.Code Civ.P. art. 2088, jurisdiction was vested in this court. Article 2088 provides:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;

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Related

Hibernia National Bank of New Orleans v. Mary
167 So. 2d 200 (Louisiana Court of Appeal, 1964)
Murry v. City of Oakdale
276 So. 2d 368 (Louisiana Court of Appeal, 1973)
Utah-Louisiana Investment Co. v. International Development, Inc.
262 So. 2d 553 (Louisiana Court of Appeal, 1972)

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Bluebook (online)
273 So. 3d 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-na-v-oglesby-lactapp-2019.