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Rayner v. The Evangeline Bank and Trust Co.

Court of Appeals of Louisiana, Third Circuit

May 10, 2017

VERNON L. RAYNER
v.
THE EVANGELINE BANK AND TRUST COMPANY

         ON APPLICATION FOR SUPERVISORY WRITS FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 256, 986 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

          George Carnal Gaiennie, III Attorney at Law COUNSEL FOR PLAINTIFF/RESPONDENT: Vernon L. Rayner.

          Thomas D. Davenport, Jr. The Davenport Firm COUNSEL FOR DEFENDANT/APPLICANT: The Evangeline Bank & Trust Company.

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

          SHANNON J. GREMILLION, JUDGE

         The defendant-relator, Evangeline Bank & Trust Company (the Bank), seeks supervisory writs from the judgment of the Ninth Judicial District Court, which denied exceptions of no cause of action, prematurity, lack of standing, ripeness, lack of justiciable controversy, lack of subject matter jurisdiction, and lis pendens. For the following reasons, we find no error in the trial court's ruling and deny the writ.

         STATEMENT OF THE CASE

         The instant case arises from a donation of immovable property from Vernon Rayner (Rayner), plaintiff-respondent, to his daughter, Christine Rayner O'Quinn (O'Quinn). Rayner reserved the usufruct for his lifetime. In 2009 and 2014, O'Quinn obtained four mortgages from the Bank, encumbering the property at issue herein. O'Quinn defaulted on the mortgages in the fall of 2015, and the Bank subsequently filed a petition for executory process against O'Quinn. Rayner intervened therein, and O'Quinn filed for bankruptcy, resulting in a stay of the executory proceeding before the immovable property was sold to satisfy the debt.

         Rayner instituted a second proceeding in district court, seeking damages against the Bank for the wrongful seizure of his property and usufruct. Along with its answer to Rayner's petition, the Bank filed exceptions of prematurity, no cause of action, lack of standing, ripeness, lack of justiciable controversy, lack of subject matter jurisdiction, lis pendens, and vagueness or ambiguity. All exceptions were denied, save for the exception of vagueness or ambiguity, which was granted.

         Though the Bank actually complains of seven denied exceptions, as a practical matter, it offers only two arguments as to why Rayner's suit against it may not proceed: 1) Nothing has yet occurred for which our civil law provides a remedy, inasmuch as proceedings were halted before the subject property was seized; and 2) Two other matters were instituted before this suit, which prohibit, or at least forestall, Rayner from moving forward.

         ARGUMENT ONE: PROPERTY HAS NOT BEEN SEIZED

         (Exceptions of No Cause of Action, Lack of Standing, Ripeness, and Lack of a Justiciable Controversy)

         The Bank's briefing to this court states in pertinent part that it "takes issue" with Rayner's claims because the property has "not been seized/or sold, " Rayner "has not been dispossessed of his usufruct" over the property, and the Bank has "not been placed in possession" of the property. Thus, argues the Bank, Rayner has no cause of action, his claim is not ripe, he lacks standing, and a justiciable controversy does not exist. We disagree.

         The Bank argues that there is no cause of action for wrongful seizure, because, while it initiated foreclosure proceedings, it had not yet seized the property. In support of its argument, the Bank cites Dixie Sav. and Loan Ass'n v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, 921, writ denied, 99-2867 (La. 12/10/99), 751 So.2d 855, ...


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