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US Bank, N.A. v. Oglesby

Court of Appeals of Louisiana, Third Circuit

December 4, 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, DISTRICT JUDGE.

          Kayla Givs Oglesby DEFENDANT/APPELLANT: Pro Se.

          Stephen W. Rider Zelma M. Frederick 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.

          William Oglesby DEFENDANT/APPELLEE: Pro Se.

          Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY JUDGE

         In this proceeding for foreclosure by executory process, Defendant, Kayla Givs Oglesby ("Kayla"), appeals the trial court's denial of her petition for injunctive relief. For the following reasons, we affirm.

         FACTS

         On April 8, 2013, 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, Series 2001-NC1 (hereinafter referred to as "the Bank"), filed a "Petition for Executory Process Without Benefit of Appraisal." In its petition, the Bank, the holder of a promissory note executed by Kayla on April 23, 2001, which was modified on August 9, 2010, sought to foreclose on the immovable property located at 801 Duck Avenue in Eunice, Louisiana (the property), based on failure to pay the amounts due under the note from April 1, 2011.[1]

         The trial court signed an Order of Seizure and Sale on April 10, 2013, granting the Bank's petition and directing the St. Landry Parish Sheriff to sell the property at public auction. Thereafter, the property was scheduled to be sold at sheriff's sale on June 26, 2013; however, after numerous postponements, the sale of the property was rescheduled for December 5, 2018.

         On November 27, 2018, Kayla, pro se, filed an "Injunction to Arrest the Seizure of Sheriff Sale," which is presently at issue. Citing La.Code Civ.P. art. 2751, Kayla asserted entitlement to an injunction "because the debt has been extinguished and is legally unenforceable[.]" She alleged the Bank abandoned its right to enforce the Order of Seizure and Sale because the action was abandoned under La.Code Civ.P. art. 561.[2]

         After a hearing on January 4, 2019, the trial court denied Kayla's petition which sought to enjoin the sale of the property. Judgment was signed on January 28, 2019. Kayla appealed and asserted she was not given a fair trial and that the trial court erred in ruling on the evidence and the law.[3] She alleges evidence she presented to the trial court which proved the Bank was not the owner of the note and did not have legal standing to foreclose on an "outdated petition" was not considered by the trial court.

         LAW AND DISCUSSION

         A trial court's determination as to whether to issue a permanent injunction is subject to the manifest error standard of review. Mary Moe, L.L.C. v. La. ...


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