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Vance v. Federal National Mortgage Association

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2017

GAIL MARIE VANCE
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, CHASE HOME FINANCE, L.L.C. MERGER INTO JP MORGAN CHASE AND GRAHAM, ARCENEAUX & ALLEN, L.L.C. AND ITS ATTORNEY FRED J. DAIGLE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 758-175, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, GAIL MARIE VANCE Julie C. Tizzard

          COUNSEL FOR DEFENDANT/APPELLEE, JP MORGAN CHASE BANK, N.A., SUCCESSOR BY MERGER TO CHASE HOME FINANCE L.L.C. (CHASE) Michael D. Ferachi Amanda S. Stout

          COUNSEL FOR DEFENDANT/APPELLEE, GRAHAM, ARCENEAUX & ALLEN, L.L.C. & FRED J. DAIGLE Gus A. Fritchie, III McDonald G. Provosty

          COUNSEL FOR DEFENDANT/APPELLEE, FEDERAL NATIONAL MORTGAGE ASSOCIATION Louis G. Arceneaux Stacy C. Wheat Fred J. Daigle

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

          ROBERT A. CHAISSON JUDGE.

         This suit was brought in response to an executory proceeding in which Gail Marie Vance's home was seized and sold by the sheriff. Subsequent to the sheriff's sale, Ms. Vance brought this suit against the former plaintiffs in the executory proceeding, as well as their attorneys, seeking to annul the sheriff's sale and recover damages for the wrongful foreclosure on her home. Defendants in this new suit brought various exceptions to Ms. Vance's petition, including exceptions of no cause of action, no right of action and res judicata, all of which were sustained by the trial court, thereby dismissing Ms. Vance's claims against all defendants with prejudice. It is from these judgments that Ms. Vance now appeals.[1]

         FACTS AND PROCEDURAL HISTORY

         On October 21, 2008, Chase Home Finance, LLC ("Chase") filed suit for executory process against Ms. Vance, seeking to foreclose on her home due to nonpayment of the note. After the note and mortgage were assigned to Federal National Mortgage Association ("FNMA"), FNMA was substituted as plaintiff for Chase. After various delays in the proceedings caused by two bankruptcy filings by Ms. Vance, the property was sold to FNMA at sheriff's sale on August 6, 2014. Subsequent to the sheriff's sale of her home, Ms. Vance filed, in the executory proceeding, a request for a temporary restraining order and preliminary and permanent injunctions, seeking to enjoin her anticipated eviction and challenging the validity of the sheriff's sale. Ms. Vance appealed the trial court's denial of her requests, and this Court affirmed the trial court's denial on appeal.[2]

         Subsequent to this Court's opinion in Ms. Vance's first appeal, she brought a separate suit against the seizing creditors, FMNA and Chase, [3] and their attorneys, Graham, Arceneaux & Allen, LLC and Fred J. Daigle (collectively "GAA"), seeking to annul the sheriff's sale and obtain the return of her home, and to recover damages and attorney's fees for wrongful foreclosure proceedings. In her petition, Ms. Vance alleged various procedural defects in the foreclosure proceedings and alleged that defendants engaged in fraud and ill practices in order to obtain the foreclosure of her home.

         Specifically, as to Chase, Ms. Vance alleged that it failed to follow La. C.C.P. art. 2635 by attaching authentic evidence to its petition as follows:

1) Chase attached un-certified copies of the promissory note that were not labeled as original copies;
2) Chase attached a copy of the mortgage that did not contain a stamp on each page;
3) While the un-certified copy of the note was made payable to Capital One and contained a notation transferring the note to Chase, an assignment of the mortgage from Capital One to Chase was never recorded in the public records; and
4) The note provides that written notice of default may be given and Chase permitted Ms. Vance to participate in a forbearance program, but Chase ...

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