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Independent Real Estate Investment Group, LLC v. Alfano

Court of Appeals of Louisiana, Fourth Circuit

May 8, 2019

INDEPENDENT REAL ESTATE INVESTMENT GROUP, LLC
v.
BRONWYN ALFANO

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-01125, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Miles Gregory Trapolin TRAPOLIN LAW FIRM COUNSEL FOR PLAINTIFF/APPELLANT

          Darnay Kast Shandy Arguelles Lindesey S. Olsen DE ST. GERMAIN LAW OFFICE, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase

          EDWIN A. LOMBARD JUDGE

         The plaintiff, Independent Real Estate Investment Group, LLC, appeals the district court judgment of November 7, 2018, wherein the district court (1) granted the declaratory exception of insufficiency of service of process filed on behalf of Darnay Kastl, the heir to the Succession of Bronwyn Alfano, the named defendant in this matter; (2) granted the peremptory exception of no cause of action filed on behalf of Mr. Kastl; (3) dismissed the plaintiff's petition for declaratory and miscellaneous relief; and (4) denied Mr. Kastl's motion to cancel recordation of statement of lien and privilege that was included within his pleading of exceptions. After review of the record in light of the applicable law and arguments of the parties, the district court judgment is affirmed in part and vacated in part.

         Relevant Facts and Procedural History

         On April 30, 2015, Ms. Alfano entered into a Bond for Deed with the plaintiff wherein Ms. Alfano's immovable property located at 315 North Bernadotte Street was sold to the plaintiff for the sum of $139, 500.00 of which a portion was paid immediately and the balance was to be paid by installments as set forth in the Bond for Deed. See La. Rev. Stat. 9:2941. In January 2016, Debra Francis Dretar (plaintiff's sole manager-member) died. Shortly thereafter (in March 2016), the plaintiff's office was moved from the deceased Ms. Dretar's address at 3349 Ridglake Drive, Metairie, Louisiana to 5497 Canal Boulevard, New Orleans, Louisiana, the home of Kenneth Dretar, Ms. Dretar's Succession Administrator and plaintiff member.

         Alleging that the plaintiff failed to make any of the required monthly payments after August 1, 2015, and subsequently failed to respond to the 45 day default notice mailed to the plaintiff on May 24, 2016, Ms. Alfano filed a "Cancellation for Bond for Deed" on October 5, 2016. No response was received from the plaintiff by Ms. Alfano. However, on November 3, 2016, the plaintiff filed and recorded a Statement of Lien and Privilege against the North Bernadotte property. Thereafter, Ms. Alfano died.

         On February 3, 2017, the plaintiff (now under control of Mr. Dretar) filed a petition for a declaratory judgment and miscellaneous relief against Ms. Alfano seeking a declaratory judgment to void the Cancellation for Bond of Deed and to re-establish the plaintiff as the "rightful purchaser" pursuant to the Bond for Deed. The plaintiff asserted that the "Cancellation for Bond for Deed" was void because mailing the notice of default to the deceased Ms. Dretar's address in Metairie and did not constitute legal notice. Ironically, the plaintiff attempted to serve its petition on the deceased Ms. Alfano.

         On August 30, 2018, in response to the plaintiff's petition for a declaratory judgment, exceptions of insufficiency of service of process and no cause of action were filed on behalf of Mr. Kastl. A motion to cancel the plaintiff's Statement of Lien and Privilege filed on the property at 315 North Bernadotte Street was improperly included in the filed pleading of exceptions.

          After a hearing, the district court issued a judgment on November 7, 2018, granting the exceptions of insufficiency of service and no cause of action, dismissing the plaintiff's petition for declaratory judgment, canceling the Lis Pendens that resulted from the filing of the petition, and denying Mr. Kastl's motion to cancel the recordation of the statement of lien and privilege on the North Bernadotte Street property.

         The plaintiff filed this timely appeal.

         Applicabl ...


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