Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nationstar Mortgage, LLC v. Schales

Court of Appeals of Louisiana, Third Circuit

December 12, 2018

NATIONSTAR MORTGAGE, LLC
v.
RICHARD D. SCHALES A/K/A RICHARD DEWY SCHALES

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 124893 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE.

          Jessica Michelle Vasquez Attorney at Law, COUNSEL FOR DEFENDANT/APPELLANT: Richard Schales.

          Angelina Christina Akerman LLP., COUNSEL FOR PLAINTIFF/APPELLEE: Nationstar Mortgage, LLC.

          Court composed of John D. Saunders, Billy H. Ezell, and Candyce G. Perret, Judges.

          JOHN D. SAUNDERS JUDGE.

         This is a case involving a mortgagee using executory process against a mortgagor and the propriety of a mortgagor's response by bringing a reconventional demand alleging damages. Further, the issue is whether the trial court properly dismissed the mortgagor's claims with prejudice rather than allowing the mortgagor to cure the defects or severing the claims.

         After a hearing in which neither the mortgagor nor his attorney were present, the trial court granted the mortgagee's motion to strike the mortgagor's reconventional demand for damages and all dilatory and peremptory exceptions filed by the mortgagee. This resulted in the dismissal, with prejudice, of all claims asserted by the mortgagor. Thereafter, the mortgagor filed a motion for new trial on the matters, which was denied. This appeal follows.

         FACTUAL AND PROCEDURAL HISTORY:

         Appellant, Richard Dewy Schales, executed a $70, 000.00 promissory note in favor of New South Federal Savings Bank on March 20, 2003. The note is secured by a mortgage encumbering the property located at 2112 Kramer Drive, New Iberia, Louisiana. New South indorsed the note to Countrywide Home Loans. Countrywide indorsed the note in blank and delivered the original note to Appellee, Nationstar Mortgage, LLC.

         A dispute arose between Schales and Nationstar regarding the proper monthly payment amount and the process by which Schales was allowed to obtain homeowner's insurance in early 2013. Nationstar contends that Schales defaulted on his obligation under the note and mortgage by failing to pay his November 1, 2014 monthly installment and failed to cure that failure to pay over the next ten months. Schales contends that he timely and consistently paid the agreed-upon note and that his property was improperly placed into a foreclosure proceeding due to the fault of Nationstar during the time the mortgage was transferred from Bank of America to it in early 2013.

         On August 13, 2014, Nationstar filed a verified petition for executory process attaching the original note, indorsed in blank, a certified copy of the mortgage, and a copy of the assignment. On August 19, 2014, the trial court found Nationstar entitled to issuance of writ of seizure and sale and the use of executory process based on the petition and attached exhibits. The Iberia Parish clerk of court issued a writ of seizure and sale over the property, and the sheriff recorded a notice of seizure.

         On December 18, 2014, Schales filed a petition for preliminary injunction, temporary restraining order, and a reconventional demand for damages against Nationstar. The claims set forth in the reconventional demand were for wrongful foreclosure, negligence, due process, conversion, breach of fiduciary duty, violation of the Louisiana Unfair Trade Practices Act, and violation of the Fair Debt Collections Act.

         On November 28, 2016, at the behest of Nationstar, an order was signed by an Iberia Parish judge cancelling the seizure notice because the property described in the seizure notice was not the same property encumbered by the mortgage. According to Nationstar, to date, Schales' property has not been seized and is not subject to sale.

         On June 14, 2017, Nationstar filed a motion to strike Schales' reconventional demand, the dilatory exceptions of unauthorized use of summary procedure, improper cumulation of actions, and improper use of executory process, and the peremptory exceptions of no cause of action and prescription. Schales filed no opposition to these filings by Nationstar.

         On September 12, 2017, the trial court heard Nationstar's motion and exceptions. Neither Schales nor his attorney attended the hearing.

         After the hearing, the trial court granted all of Nationstar's exceptions. Further, the trial court granted Nationstar's motion striking all claims asserted by Schales. As a result, the trial court dismissed all of Schales' claims with prejudice.

         On September 26, 2017, once Schales allegedly learned of the judgment, he filed a pro se motion for new trial and hired new counsel. On December 20, 2017, the trial court denied Schales' motion for new trial. It is from these judgments that Schales presents six assignments of error.

         ASSIGNMENTS OF ERROR:

         1. The trial court erred in granting Nationstar's Exceptions of Unauthorized Executory Proceedings.

         2. The trial court erred in granting Nationstar's Exceptions of Unauthorized Summary Proceedings.

         3. The trial court erred by granting summary Nationstar's Motion ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.