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US Bank, N.A. v. Oglesby

Court of Appeals of Louisiana, Third Circuit

May 15, 2019

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
v.
KAYLA GIVS OGLESBY, ET AL.

          APPEAL 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

          Kayla Givs Oglesby 801 Duck Ave. DEFENDANT/APPELLANT: Pro Se

          William Oglesby DEFENDANT/APPELLEE: Pro Se

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          ELIZABETH A. PICKETT JUDGE.

         On 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.

         On 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, 2019.

         On 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.

         The 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.

         Next, 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, or both.
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.

         Pursuant 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 ...


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