US BANK, N.A., AS TRUSTEE SUCCESSOR BY MERGER TO FIRST STAR BANK, N.A., AS TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST, SERIES 2001-NCI
KAYLA GIVS OGLESBY, ET AL.
FROM THE TWENTY SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST.
LANDRY, NO. 13-C-1522-C HONORABLE ALONZO HARRIS
Stephen W. Rider Herschel C. Adcock, Jr. Vicki A. Elmer
Natalie White Jamie Alexandra Bruce McGlinchey Stafford, PLLC
COUNSEL FOR PLAINTIFF/APPELLEE: U.S. Bank, N.A., as Trustee
Successor by Merger to First Star Bank, N.A., as Trustee for
New Century Home Equity Loan Trust
Givs Oglesby 801 Duck Ave. DEFENDANT/APPELLANT: Pro Se
William Oglesby DEFENDANT/APPELLEE: Pro Se
composed of Elizabeth A. Pickett, Phyllis M. Keaty, and
Candyce G. Perret, Judges.
ELIZABETH A. PICKETT JUDGE.
April 25, 2019, the plaintiff-appellee, U.S. Bank, N.A., as
Trustee Successor by Merger to First Star Bank, N.A., as
Trustee for New Century Home Equity Loan Trust, filed a
Motion to Strike the Amended Motion and Order for Devolutive
Appeal and the Trial Court's Order on the Amended Motion
for Devolutive Appeal. For the following reasons, we grant
the motion to strike.
April 8, 2013, the plaintiff filed the instant foreclosure
action against the defendant-appellant, Kayla Givs Oglesby.
On November 27, 2018, the defendant, pro se, filed an
"Injunction to Arrest the Seizure of Sheriff Sale,"
seeking to enjoin the pending sale of the property subject to
foreclosure. The trial court denied the petition on January
28, 2019. On February 27, 2019, the defendant filed a Motion
and Order for Devolutive Appeal which was granted that same
day, setting a return date of March 28, 2019. This court
issued its Notice of Lodging and Briefing Order on April 1,
April 2, 2019, the defendant filed, in the district court, an
Amended Motion and Order for Devolutive Appeal, seeking the
suspension of the pending April 10, 2019 sheriff's sale
of the property. An order granting the motion and suspending
the sheriff's sale until the resolution of this appeal
was signed by the trial court on April 3, 2019.
plaintiff argues that the defendant did not notify it of her
amended motion for appeal as required by La.Code Civ.P. art.
1313; thus, the plaintiff was not provided an opportunity to
object to the motion. The plaintiff states that it first
learned of the motion when it received the Amended Notice of
Appeal on April 8, 2019.
the plaintiff asserts that the defenses to an executory
proceeding and writ of seizure and sale are set forth in
La.Code Civ.P. art. 2642 as follows:
A. Defenses and procedural objections to an executory
proceeding may be asserted either through an injunction
proceeding to arrest the seizure and sale as provided in
Articles 2751 through 2754, or a suspensive appeal from the
order directing the issuance of the writ of seizure and sale,
B.A suspensive appeal from an order directing the issuance of
a writ of seizure and sale shall be taken within fifteen days
of service of the notice of seizure as provided in Article
2721. The appeal is governed by the provisions of Articles
2081 through 2086, 2088 through 2122, and 2124 through 2167,
except that the security therefor shall be for an amount
exceeding by one-half the balance due on the debt secured by
the mortgage or privilege sought to be enforced, including
principal, interest to date of the order of appeal, and
attorney fees, but exclusive of court costs.
to Article 2642, to enjoin the sheriff's sale, the
plaintiff maintains that the defendant was required to file a
suspensive appeal and post security. Instead of seeking a
suspensive appeal as mandated by Article 2642, more than five
years after the ...