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Rourke v. The Estate of Dretar

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2018

REBECCA ROURKE
v.
THE ESTATE OF DEBRA FRANCES DRETAR, KENNETH JOHN DRETAR, INDIVIDUALLY, AND IN HIS CAPACITY AS INDEPENDENT ADMINISTRATOR OF THE SUCESSION OF DEBRA FRANCES DRETAR, 3006 ROBERTA, LLC, LOUISIANA HOUSING PROGRAM, L.L. C., BAYOU TRIANGLE DEVELOPEMENT, INC.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 772-238, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, REBECCA ROURKE Harry A. Rosenberg Christopher K. Ralston Arthur R. Kraatz Lillian M. Grappe

          COUNSEL FOR DEFENDANT/APPELLANT, SEC RESOURCES LLC Ryan M. McCabe Charles L. Stern, Jr. Mark C. Landry

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

          SUSAN M. CHEHARDY CHIEF JUDGE

         EXCEPTION GRANTED; JUDGMENT VACATED; MATTER REMANDED.

         SMC

         JGG

         LILJEBERG, J., CONCURS WITH REASONS

         HJL

         On appeal, SEC Resources, L.L.C. ("SEC") challenges the partial default judgment granted in favor of Rebecca Rourke rescinding the sale of immovable property to 3006 Roberta, L.L.C. Further, SEC has filed a peremptory exception of nonjoinder in this Court. For the following reasons, we sustain the exception of nonjoinder, vacate the partial default judgment, and remand for joinder of the absent party, and further proceedings consistent with this opinion.

         Factual and Procedural History

         In the summer of 2014, Rebecca Rourke, who is unable to work due to disability and receives Social Security disability benefits as her regular source of income, was experiencing financial difficulties and mental health issues, requiring psychiatric treatment. During this time, Debra Dretar, an acquaintance of Ms. Rourke, assisted her by paying for her prescriptions and some past due bills.

         In August of 2014, Debra Dretar learned that Ms. Rourke would soon inherit property[1] so Dretar offered to help Rourke secure a "Reverse Amortized Loan" on the property.[2] According to a "preliminary contract, " Ms. Rourke would "place my property at 3006 Roberta St., Metairie, La. 70003 into an LLC as designated by Louisiana Housing Program LLC (Debra Dretar)" in exchange for payments of $800.00 per month for 10 years at 6% interest per annum.

         On November 6, 2014, Ms. Rourke was placed into full ownership of immovable property located at 3006 Roberta Street in Metairie, Louisiana.[3] Four days after the Judgment of Possession was issued, Debra Dretar executed an Affidavit of Usufruct, [4] which purported to grant Ms. Rourke the usufruct over the property for a minimum of 10 years. Further, Debra Dretar acknowledged in that affidavit that the "Equity in [Ms. Rourke's] home in the amount of approx..[sic] $110, 000 remains hers."

         Thereafter, on November 11, 2014, Ms. Rourke executed an Act of Cash Sale, transferring all rights to the immovable property to 3006 Roberta, L.L.C.[5]("the L.L.C.") for $117, 500.00. Debra Dretar signed the Act of Sale for the L.L.C. as the manager of that company. That same day, Debra Dretar on behalf of the L.L.C. purported to grant a usufruct over the immovable property in favor of Ms. Rourke.[6] In that document, the L.L.C. also stated that it had executed an "Act of Mortgage" on the immovable property at issue in favor of SEC Resources, L.L.C. "in the principal sum of [$117, 500.00] with interest … of 14% per annum, payable … [in] 36 monthly installments of interest only … WITH A BALLOON PAYMENT DUE DECEMBER 1, 2017 … ." The Act of Mortgage is not contained in the record before us on appeal.[7]

         In her petition, Ms. Rourke alleges that she did not receive the purchase price of $117, 500.00 because Debra Dretar directed the sale proceeds to be disbursed to Bayou Triangle Development, Inc., which is wholly owned by Debra Dretar's brother, Kenneth. In her petition, Ms. Rourke states that she has received less than $25, 000.00 of the agreed upon price for her immovable property.

         On January 18, 2016, Debra Dretar passed away. Kenneth Dretar, her brother, is the independent administrator of Debra Dretar's succession.

         On November 9, 2016, the L.L.C., via certified mail, notified Ms. Rourke that her usufruct was "cancelled and revoked" because she was in "default of the terms" of their agreement. On December 7, 2016, a Notice to Vacate was posted on the premises at issue. On January 25, 2017, the L.L.C. filed a Petition for Order of Eviction.[8] On March 7, 2017, the parties continued ...


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