U.S.BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-BC4
PERRY THOMAS CUSTER, JR. A/K/A PERRY T. CUSTER, JR., A/K/A PERRY CUSTER, JR.
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
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.
composed of Judges Robert M. Murphy, Stephen J. Windhorst,
and Hans J. Liljeberg
J. LILJEBERG, JUDGE
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.
AND PROCEDURAL HISTORY
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.
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. Years later, on May 4, 2016, U.S.
Bank's lawsuit was dismissed on the grounds of
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.
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.
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, 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.
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.
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 ...