Walter Mortgage Co. v. Turner

210 So. 3d 425, 2016 La. App. LEXIS 2093
CourtLouisiana Court of Appeal
DecidedNovember 16, 2016
DocketNo. 51,007-CA
StatusPublished
Cited by7 cases

This text of 210 So. 3d 425 (Walter Mortgage Co. v. Turner) 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
Walter Mortgage Co. v. Turner, 210 So. 3d 425, 2016 La. App. LEXIS 2093 (La. Ct. App. 2016).

Opinion

GARRETT, J.

h The plaintiff, Green Tree Servicing, LLC (“Green Tree”), the successor by merger of Walter Mortgage Company, LLC (‘Walter”), appeals from a trial court judgment annulling, vacating, and setting aside a sheriffs sale deed. For the following reasons, we reverse and vacate the trial court judgment.

FACTS

In order to understand the progression of this convoluted case, an explanation of the confusing chain of events leading to the judgment annulling the sheriffs sale is necessary. In December 2011, Walter filed a petition for executory process, naming as defendants Oscar Turner, Bettie Mae Law Turner,1 and their son, Rodrick G. Turner. Walter alleged that it was the holder of a promissory note executed by the defendants in 2003, payable in monthly installments, and secured by a mortgage on immovable property, which appears to be the defendants’ house. The mortgage contained a confession of judgment. Walter claimed that the defendants failed to make the payment due on November 5, 2008, or any payments since that time, and that they owed the balance due on the note, $94,083.29, together with attorney fees. Walter requested that a writ of seizure and sale be issued directing the Caddo Parish Sheriff to seize, advertise, and, sell the property without benefit of appraisement. Judge Leon Emanuel signed an order directing that a writ of seizure and sale issue to the sheriff, commanding the seizure and sale of the property. The writ of seizure and sale was duly issued on December 15, 2011. A sheriffs sale was apparently |2scheduled. For reasons unexplained in this record, it was postponed. On January 17, 2014, Green Tree filed an amended petition alleging it was the successor by merger with Walter. It also substituted as defendants the unopened successions of Oscar Turner and Bettie Mae Law Turner, and maintained Rodrick Tur[428]*428ner as a defendant. Green Tree alleged that the balance due on the note had increased to $104,477.54. Green Tree also fíled a motion for the appointment of attorneys to represent the unopened successions. That motion was granted and the attorneys appointed for the unopened successions later filed reports into the suit record detailing unsuccessful attempts to make any contact.2

Attached to the amended petition was another order for a writ of seizure and sale, to be directed to the sheriff. The order was not signed and bears the handwritten notation “(Unsigned—premature— MAP—2/26/14).” The initials are those of Judge Michael A. Pitman, who later rendered the judgment which is the subject of this appeal.

On May 19, 2014, at Green Tree’s request, an attorney was appointed for Rodrick Turner. That attorney filed a general denial answer on Turner’s behalf, but there is no report in the record detailing attempts to contact him. The sheriffs sale was eventually held on November 26, 2014, and the property was adjudicated to Green Tree.

On April 24, 2015, the Caddo Parish Sheriff filed in the executory process suit record a pleading entitled “Motion for Instructions.” The motion explained that, in accordance with the writ of seizure and sale issued I,qpn December 15, 2011, a sheriffs sale was conducted on November 26, 2014, and the property was adjudicated to Green Tree. A procés verbal was filed on December 29, 2014. On March 16, 2015, Green Tree obtained a writ of possession from the court ordering the sheriff to place it in possession of the property and to eject all occupants from the premises.3 While the sheriffs office was preparing to execute this writ, it was contacted over the telephone by an attorney purporting to represent one or more of the defendants. The attorney claimed that the sheriffs sale was not lawfully conducted and the writ of possession should not be executed. Green Tree requested that the sheriff proceed with the writ. Caught in the middle, the sheriff filed the Motion for Instructions, noting that it had no interest in the proceedings other than the proper discharge of the duties of the office. The sheriffs motion sought the following relief:

WHEREFORE, the Sheriff prays that the plaintiff and defendants be served with this motion and directed to show cause why the court should not enter instructions either recalling the writ of possession or directing the Sheriff of Caddo Parish to execute it, and that after due proceedings had the court give further instructions to the Sheriff as to whether he should execute the writ of possession or whether it will be recalled.

A rule to show cause on the sheriffs motion, directed to Green Tree, the two unopened successions, and Turner, was set for June 29, 2015.

Green Tree filed a response to the sheriffs motion, requesting that the sheriff be ordered to execute the writ of possession. Green Tree maintained that the sheriffs sale was valid based on the original writ of [429]*429seizure and sale issued in December 2011, Green Tree urged that the unsigned writ of seizure and sale connected with the amended petition was a procedural Rdefect and any objection to it was waived because the defendants failed to raise an objection prior to the sale by filing a suit for injunction or a suspensive appeal, as required by law.

On June 19, 2015, the attorney retained by Turner filed a motion to enroll and a “response” to the sheriffs motion. In the response, Turner argued that the sheriffs sale was not lawfully conducted because the amended petition was not approved by the trial court. Turner claimed that the amended petition was denied as premature by the trial court because no documents were attached to show that Green Tree was the successor by merger to Walter. Turner urged that this was a due process issue and not procedural only. He claimed that the failure to obtain judicial approval for the filing of the amended petition was fatal to the proceedings. Turner maintained that the sheriffs sale was not conducted based upon the December 2011 writ of seizure and sale because the parties had changed. Turner argued that he was not required to raise the issue of nullity prior to the sale. He cited Tapp v. Guar. Fin. Co., 158 So.2d 228 (La. App. 1st Cir. 1963), writs refused, 245 La. 640, 641, 160 So.2d 228 (1964), a case which has been legislatively overruled, in support of his argument that nullity of the sale could be asserted as late as on appeal.4

|r,In response to Turner’s brief, Green Tree argued that the sole question before the court was whether the sheriff could execute the writ of possession. Green Tree maintained that it was procedurally improper for the court to decide whether the sale should be declared null where Turner had not filed a petition for injunction or a suspensive appeal properly raising the issue. Green Tree claimed that, because Turner failed to raise, prior to the sale, the procedural issue of whether there was sufficient authentic evidence to support Green Tree’s substitution as plaintiff, the objection was waived. Green Tree also pointed out that it was unclear why the trial court refused to sign the second order for a writ of seizure and sale. It claimed that Turner’s assertion that the court refused to sign because of a lack of authentic evidence was speculation. Without waiving its objection to Turner’s attempt to obtain a ruling annulling the sale, Green Tree argued that the sale was proper and Turner’s allegations of nullity were untimely.

The hearing held on June 29, 2015, consisted of oral arguments by counsel.

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Bluebook (online)
210 So. 3d 425, 2016 La. App. LEXIS 2093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-mortgage-co-v-turner-lactapp-2016.