HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
CYRIL G. LOWE, JR.
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
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
G. Lowe, Jr. Counsel for Defendant-Appellant Metairie,
Louisiana Pro Se
BEFORE: WELCH, CHUTZ AND LANIER, JJ.
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.
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
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.
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
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.
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.
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 ...