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U.S. Bank National Association v. Custer

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

U.S.BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-BC4
v.
PERRY THOMAS CUSTER, JR. A/K/A PERRY T. CUSTER, JR., A/K/A PERRY CUSTER, JR.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 765-400, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-BC4 Stephen W. Rider Aukse S. Joiner Melissa Harris.

          COUNSEL FOR DEFENDANT/APPELLEE, PERRY THOMAS CUSTER, JR. A/K/A PERRY T. CUSTER, JR., A/K/A PERRY CUSTER, JR. Cynthia Etheridge Daniels Robert Angelle.

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

          HANS J. LILJEBERG, JUDGE

         In this proceeding for foreclosure by executory process, plaintiff seeks review of the trial court's judgment granting defendant's exception of prescription and dismissing its claims against defendant with prejudice. Defendant answered the appeal and seeks review of the trial court's denial of his petition for injunctive relief, which was based on a finding that it was moot. For the foregoing reasons, we vacate the trial court's judgment granting the exception of prescription, and we render judgment in favor of defendant, granting the injunctive relief he seeks.

         FACTS AND PROCEDURAL HISTORY

         On May 17, 2007, in connection with his purchase of the property located at 4204 Lime Street in Metairie, defendant, Perry Custer, executed a promissory note for $198,000, plus interest, and granted a mortgage encumbering the property. Plaintiff, U.S. Bank National Association, as Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2007-BC4 (hereinafter referred to as "U.S. Bank"), is the present holder of the promissory note. According to U.S. Bank, Mr. Custer stopped making payments and defaulted on the loan on September 1, 2007, less than six months after obtaining the loan.

         On March 10, 2008, U.S. Bank filed a "Suit on Promissory Note," asserting that the promissory note had been misplaced and seeking foreclosure via ordinary process. U.S. Bank asserted in its petition that the note became in arrears on September 1, 2007, whereupon all remaining installments immediately became due pursuant to the terms of the note.[1] Years later, on May 4, 2016, U.S. Bank's lawsuit was dismissed on the grounds of abandonment.

         On October 6, 2016, U.S. Bank initiated the present lawsuit by filing a "Petition for Mortgage Foreclosure by Executory Process with Appraisal" against Mr. Custer. In its petition, U.S. Bank noted that it had located and was in possession of the promissory note. It indicated that Mr. Custer had been provided with the required notice of default, and it sought seizure and sale of the property located at 4204 Lime Street by executory process. In response to U.S. Bank's petition, on January 9, 2017, Mr. Custer filed a "Petition for Preliminary and Permanent Injunction to Arrest Seizure and Sale," along with "Peremptory Exceptions of No Cause of Action and Prescription." In his petition for injunctive relief, Mr. Custer asserted that the promissory note at issue had prescribed and was no longer legally enforceable, and that the exceptions of no cause of action and prescription were "incorporated herein by reference as defenses to this executory proceeding." U.S. Bank responded by filing "Exceptions, Affirmative Defenses and Answer to Custer's Petition for Preliminary and Permanent Injunction to Arrest Seizure and Sale." In this pleading, U.S. Bank raised exceptions of improper use of summary proceeding and non-joinder of an indispensable party.

         On February 7, 2017, Mr. Custer's request for a preliminary injunction and the exceptions filed by both parties came for hearing before the trial court. At the hearing, four witnesses testified, primarily regarding U.S. Bank's claim of acknowledgment of the debt, and several exhibits were admitted into evidence. At the conclusion of the hearing, the trial court granted Mr. Custer's request for a preliminary injunction and kept the exception of prescription open for further testimony to be provided during the hearing on the request for a permanent injunction. The remaining exceptions were denied.

         On March 7, 2017, Mr. Custer's petition for permanent injunction and his exception of prescription, which was continued from the February 7, 2017 hearing, came before the trial court. Additional testimony and evidence was presented,[2] and at the conclusion of the hearing, the trial court took the matter under advisement. Thereafter, on May 1, 2017, the trial judge rendered a judgment granting the exception of prescription filed by Mr. Custer and dismissing U.S. Bank's claims against Mr. Custer with prejudice. The judgment further provided that the petition for permanent injunction was moot. U.S. Bank appeals the trial court's judgment, and Mr. Custer has filed an answer to the appeal.

         LAW AND DISCUSSION

         In its first argument on appeal, U.S. Bank contends that the trial court erred in considering and granting an exception of prescription filed in response to an executory process foreclosure proceeding. It argues that while defenses may be raised via exceptions in an ordinary proceeding, the assertion of defenses in an exception is not proper in an executory process foreclosure, pursuant to La. C.C.P. art. 2642. Accordingly, U.S. Bank asks this Court to vacate the judgment of the trial court.

         Mr. Custer responds that the trial court properly considered his exception of prescription, noting that it was filed simultaneously with his petition for injunctive relief. He further notes that prescription was raised in his petition for injunctive relief and the exception of ...


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