COUNTRYWIDE HOME LOANS, INC. Plaintiff-Appellant
ESTATE OF IREE STERLING MIMS ROWE AKA IREE S. ROWE Defendant-Appellee
from the Twenty-Sixth Judicial District Court for the Parish
of Webster, Louisiana Lower Court Case No. 67, 947 Honorable
Jeff Cox, Judge Honorable Michael Nerren, Judge
SMITH, ZUBER & BARNETTE By: Jessica Chapman Counsel for
Appellant, Bank of New York Mellon
McGLINCHEY STAFFORD, PLLC By: Stephen W. Rider Melissa H.
Harris Mark James Chaney, III, STEMMANS & ALLEY By:
Jennifer E. Frederickson W. Michael Stemmans M. Todd Alley
Michael J. Taffaro Counsel for Appellee, Heirs of William D.
CAMPBELL, CAMPBELL & MARVIN By: John C. Campbell Counsel
for Appellees, Estate of Iree S. Mims
MOORE, GARRETT, and STONE, JJ.
New York Mellon appeals a judgment that found that it
abandoned its executory process suit against the named heirs
of William D. Rowe, and dismissed the suit with prejudice. We
affirm the dismissal, but amend it to be without prejudice.
AND PROCEDURAL HISTORY
2003, Iree Rowe and her husband, William D. Rowe, took out a
home equity line of credit with MBNA America, with a limit of
$51, 300. They executed a multiple indebtedness mortgage
affecting their home, described as Lot 2, Boucher
Subdivision, Cullen, La. The mortgage included a confession of
judgment, acceleration clause and other provisions associated
with executory process. Within a month, MBNA indorsed the
mortgage package to Countrywide Home Loans.
Rowe died in December 2004, and Iree died in January 2005.
The mortgage fell into arrears.
February 8, 2008, Countrywide filed this petition for
executory process against "the Estate of Iree Sterling
Mims Rowe, aka Iree S. Rowe, " alleging that Iree had
died and no succession had been opened. It recited the
essentials for executory process and prayed for seizure and
sale of Lot 2, Boucher Subdivision. The writ issued
and the sheriff filed notice on February 27.
25, 2008, a curator filed an answer on behalf of Iree's
heirs. He recited that he was trying to contact them, and
generally denied all of Countrywide's allegations.
January 15, 2010, someone identified only as Kathryn Talbot
filed a "notarial act of correction" in the Webster
Parish mortgage records. This recited that the original
mortgage documents actually intended to encumber Lot 2,
less and except the north 10 feet thereof, Boucher
Subdivision. This document was filed only in the mortgage
records, not in the suit record.
4, 2011, someone identified only as "from the
foreclosure department" faxed a letter to the
sheriff's office, asking to stop the scheduled
foreclosure "so that we may amend the petition to
reflect the correct legal description of the property."
The procès-verbal, issued the same day, described
Lot 1 and the north 10 feet of Lot 2, Boucher
Subdivision, with an assessed value of only $1, 500. However,
no sale took place.
December 5, 2012, Countrywide filed a supplemental and
amended petition for executory process. This cited the
notarial act of correction, filed January 15, 2010, and
requested seizure and sale of Lot 1 and the north 10 feet
of Lot 2, Boucher Subdivision. An ad hoc judge signed
the order of seizure and sale the same day.
January 29, 2013, Lula B. Cornelius, the administratrix of
Iree's succession, filed a petition to arrest the seizure
and sale. She showed that the original mortgage referred to
Lot 2, but that Countrywide was now trying to seize
more property, Lot 1 and the north 10 feet of Lot 2;
that the person who filed the notarial act of correction, Ms.
Talbot, had no apparent connection to the original mortgage;
and that the correction was much more than the "clerical
error" allowed by statute, R.S. 35:2.1. A rule was set
for March 3, but no one appeared for it.
August 13, 2013, Countrywide filed a motion to substitute
Bank of New York Mellon ("BNY") as plaintiff, as
BNY had acquired the mortgage note. On September 16, BNY
filed a motion to convert the matter to an ordinary
second supplemental and amending petition, BNY admitted its
"inadvertence and error" in the original property
description, alleging that the debtors had really intended to
encumber Lots 1 and 2, Boucher Subdivision, and
named as defendants Loretha R. Pointer and other heirs of
William Rowe ("the William Rowe heirs").
William Rowe heirs promptly filed a motion to dismiss for
abandonment, La. C. C. P. art. 561. They alleged that no step
in the prosecution or defense had occurred for over three
years, from June 25, 2008, when Iree's curator filed an
answer, until August 15, 2012, when Countrywide filed a
motion to substitute counsel. The district court signed, that
very day, an ex parte order dismissing BNY's claims
against the William Rowe heirs, with prejudice.
filed a "motion for amendment of judgment and motion to
set aside dismissal." It conceded that the property
description had expanded from Lot 2 (in the act of
mortgage and original petition) to Lot 1 and the north 10
feet of Lot 2 (in the notarial act of correction and
first supplemental and amended petition) to Lots 1 and
2 (in the second supplemental and amended petition).
However, it argued that code articles about abandonment do
not apply to executory process, citing Greater New
Orleans Homestead Ass'n v. Bell, 219 La. 41, 52
So.2d 241 (1951); that the notarial act of correction was a
step in the prosecution; and that Art. 561 must always be
construed in favor of maintaining the suit. Alternatively, it
argued that any dismissal for abandonment should be
presumptively without prejudice.
William Rowe heirs opposed the motion, arguing that dismissal
with prejudice, though rare, is within the court's
discretion; that Bell relied on an article in the
former Code of Practice, which had been repealed, and the
current law, La. C. C. P. art. 561, makes no exception for
executory proceedings; that BNY converted the matter to
ordinary process, and could not argue any benefit of
executory process; and that the notarial act of correction
exceeded the statutory authority to correct a "clerical
error" and was without legal effect.
hearing limited to argument, a different judge of the 26th
JDC rendered an opinion denying the motion to amend or set
aside the judgment.
took this devolutive appeal, raising four ...