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HSBC Bank USA, N.A. v. Lowe

Court of Appeals of Louisiana, First Circuit

May 31, 2019

HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
v.
CYRIL G. LOWE, JR.

          ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 2016-14158, DIVISION E, PARISH OF ST. TAMMANY STATE OF LOUISIANA HONORABLE WILLIAM H. BURRIS, JUDGE

          Mark E. Deethardt Counsel for Plaintiff-Appellee Stephen Winthrop Rider HSBC Bank USA, National New Orleans, Louisiana Association as Trustee for Deutsche ALT-A Securities, Inc. Mortgage Loan Trust, Series 2005-2

          Cyril G. Lowe, Jr. Counsel for Defendant-Appellant Metairie, Louisiana Pro Se

          BEFORE: WELCH, CHUTZ AND LANIER, JJ.

          CHUTZ, J.

         Defendant-appellant, Cyril G. Lowe, Jr., appeals the trial court's judgment, sustaining a peremptory exception raising the objection of no cause of action and dismissing his claims for injunctive relief asserted in these executory proceedings instituted by plaintiff-appellee, HSBC Bank USA, National Association as trustee for Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series 2005-2 (HSBC). For these reasons, we affirm.

         PROCEDURAL BACKGROUND

         On October 4, 2016, HSBC filed a petition for executory process, naming Lowe as a defendant and averring that as of the April 2016 installment payment, he had defaulted on a promissory note in the principal amount of $143, 800 for which HSBC was the holder and that was secured with a mortgage on immovable property located in Covington, Louisiana. On October 5, 2016, a writ of seizure and sale issued, directing the St. Tammany Parish Sheriff to take possession of, advertise, and sell the immovable property.

         Lowe filed a petition for injunctive relief on February 13, 2017, seeking to arrest the sheriffs sale based on allegations that PNC Mortgage (PNC), the mortgage servicing company for HSBC, had informed him that he qualified for a loan modification in which the balance of monthly mortgage payments due and owed would be deferred and a new monthly payment would be offered. On February 13, 2017, the trial court signed a judgment granting a hearing on Lowe's entitlement to injunctive relief and issuing a temporary restraining order staying the foreclosure sale scheduled for February 15, 2017.

         HSBC subsequently filed a peremptory exception raising the objection of no cause of action, averring that Lowe was not entitled to injunctive relief. After a hearing on April 3, 2018, the trial court sustained the exception of no cause of action. A judgment in conformity with its ruling was signed by the trial court on May 7, 2018. Lowe lodged this devolutive appeal.[1]

         DISCUSSION

         The function of an exception pleading the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). The exception is triable on the face of the petition, and all well-pleaded allegations of fact must be accepted as true. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. CLB6l, Inc. v. Home Oil Co., LLC, 2017-0557 (La.App. 1st Cir. 11/1/17), 233 So.3d 656, 660. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. A court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Knight v. Magee, 2001-2041 (La.App. 1st Cir. 9/27/02), 835 So.2d 636, 638.

         In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, the appellate court should subject the case to a de novo review. The exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Any doubts are resolved in favor of the sufficiency of the petition. The question, therefore, is whether, in the light most favorable to the party alleging entitlement to relief, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Id.

         Lowe asserts that in concluding that his pleading failed to state a cause of action, the trial court too narrowly construed the provisions permitting injunctive relief to arrest a sheriffs sale in an executory proceeding. Averring that he has stated valid grounds for such injunctive relief, Lowe ...


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