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Lake Air Capital II, LLC v. Perera

Court of Appeals of Louisiana, Fourth Circuit

May 13, 2015

LAKE AIR CAPITAL II, LLC
v.
SARATH K. PERERA AND HEMALIE PERERA CONSOLIDATED WITH: LAKE AIR CAPITAL II, LLC
v.
SARATH K. PERERA AND HEMALIE PERERA

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2013-05045 C/W 2014-05334, DIVISION " A" . Honorable Tiffany G. Chase, Judge.

Peter J. Rotolo, III, G. Wogan Bernard, CHAFFE McCALL, L.L.P., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.

P. Michael Breeden, BREEDEN LAW FIRM, L.L.C., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins).

OPINION

Page 85

[2015-0037 La.App. 4 Cir. 2] Max N. Tobias, Jr.

 Sarath and Hemalie Perera (the " Pereras" ) appeal from an adverse judgment rendered on 11 June 2014 granting the petition for eviction and rule for possession in favor of Lake Air Capital II, LLC (" Lake Air" ) following Lake Air's enforcement of a promissory note and collateral mortgage and subsequent foreclosure and judicial sale of residential property occupied and owned by the Pereras. For the following reasons, we affirm.

Factual Background and Procedural History

On 28 May 2013, Lake Air filed a petition for executory process without benefit of appraisal seeking enforcement of a promissory note (the " Note" ) executed by the Pereras. The Note was alleged to be secured with an act of mortgage on the Pereras' residence located at 5600 Evelyn Court in New Orleans (the " Property" ), duly recorded in the mortgage records of Orleans Parish. In its petition, Lake Air alleged that it was the current holder of

Page 86

the Note[1] and that the [2015-0037 La.App. 4 Cir. 3] Pereras' monthly installments were past due. Lake Air prayed for and obtained on 28 May 2013 an order for seizure and sale, directing the Orleans Parish Sheriff to seize and sell the Property. According to the notice of seizure dated 11 June 2013, the judicial sale was tentatively scheduled for 5 September 2013.

No action was taken by the Pereras during the next three months. However, on 30 August 2013, less than one week shy of the scheduled sale, the Pereras filed a Chapter 13 bankruptcy proceeding resulting in a stay of the judicial sale. At that time a Chapter 13 debtor's (bankruptcy) plan was put into place. In December 2013, when the Pereras failed to comply with the debtor's plan as it related to the mortgage on the Property, Lake Air sought an order from the bankruptcy court to lift the automatic stay provisions.[2] The bankruptcy court granted Lake Air's motion and lifted the stay on 31 January 2014. Once the procedural delays under the Bankruptcy Code had elapsed and the order lifting the stay was final, Lake Air re-set the judicial sale for 17 April 2014.

Despite the stay being lifted and having ample notice of the impending sale of the Property, the Pereras took no action until Friday, 11 April 2014 -- again, less than one week prior to the re-scheduled sale -- when they filed a motion with the bankruptcy court to reinstate the stay and requested an expedited hearing on their motion. The bankruptcy court denied the request on Monday, 14 April 2014.

Waiting until 2:28 p.m. the following afternoon, Tuesday, 15 April 2014, the Pereras filed a petition for injunction (preliminary and permanent) in the trial court to arrest the seizure and sale re-scheduled for 17 April 2014, and/or, alternatively, [2015-0037 La.App. 4 Cir. 4] for damages.[3] In their petition, the Pereras requested a temporary restraining order in the event the trial court could not hold a hearing prior to the scheduled sheriff's sale; the request for a temporary restraining order was denied. The trial court ...


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