Regina B. Heisler, Individually and as Succession representative/executrix of the Succeession of Frederick P. Heisler Versus Girod Loanco, LLC

REGINA B. HEISLER, INDIVIDUALLY AND NO. 20-C-56
AS SUCCESSION
REPRESENTATIVE/EXECUTRIX OF THE FIFTH CIRCUIT
SUCCEESSION OF FREDERICK P.
HEISLER COURT OF APPEAL

VERSUS STATE OF LOUISIANA

GIROD LOANCO, LLC

June 17, 2020

Susan Buchholz
First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

DENIED

FHW
JGG
RAC

WICKER, J.

For the following reasons, the application for rehearing filed by Regina B. Heisler,
individually and as succession representative/executrix of the Succession of Frederick P.
Heisler (“Heisler”), is denied.

As discussed in our March 5, 2020 writ disposition, relator Heisler and
respondant Girod LoanCo, LLC (“Girod”) are engaged in a foreclosure proceeding
by executory process filed in the 24th Judicial District Court. This Court based our
March 5, 2020 denial of Relator’s application for supervisory review of the trial
court’s January 6, 2020 order on our finding that the trial court correctly denied
applicant’s motion/exception as duplicative, further as an improper defense in an
executory process action pursuant to La. C.C.P. art. 2642. Additionally, we found
the declaratory relief sought by relator was unwarranted as “Girod has standing to
proceed in this court pursuant to La. R.S. 12:1343, which allows a foreign limited
liability company to secure or collect debts or enforce any rights in property
securing the debts without obtaining a certificate of authority from the secretary of
state. La. 12:1343(7).”

Relator asks us to reconsider only our finding that Girod has standing to file claims
in the courts of Louisiana. According to Relator, Millburn v. Proctor Trust, 54 F. Supp.
989 (W.D. La. 1944), and Henson v. Santander, 582 U.S. ---, 137 S. Ct. 1718, 198 L. Ed.
2d 177 (2017), are controlling and require us to conclude that Girod has no standing or
right of action to file claims in any Louisiana court.

Relator cites Millburn for the proposition that “no foreign corporation doing
business in this State shall be permitted to present any judicial demand before any
court of this State, unless and until it has complied with the laws of this State for
doing business herein,” and that, because Girod was not qualified to do business in
the State of Louisiana when the suit was filed, Heisler’s exception of no right of
action should have been granted. Milburn, 54 F. Supp. at 994. First, the Louisiana
Supreme Court has held that the proper procedural exception for invoking La. R.S.
12:3141 is the exception to procedural capacity rather than no right of action.
Outdoor Elec. Advert. v. Saurage, 207 La. 344, 351–53; 21 So.2d 375, 377–78
(1945); see J. R. Watkins Co. v. Floyd, 119 So.2d 164, 166–67 (La. App. 1 Cir.
1960); Williamson-Dickie Apparel Mfg. Co. v. Hanger, Inc., 422 So.2d 602, 604–
05 (La. App. 3 Cir. 1982).

Further, the burden of proving that a foreign corporation lacks procedural
capacity to sue in Louisiana State courts because it is doing business in the state
without authorization from the Secretary of State lies with the individual urging
such a defense. Bottle Poetry, LLC v. Doyle Rest. Grp. Franchise Co., LLC, 13-
0406 (La. App. 4 Cir. 1/15/14); 133 So.3d 60, 64–65, writ denied, 14-0335 (La.
4/11/14); 138 So.3d 606. Like the defendant in C.M. Masland and Sons v. Charles
Carter and Co., Inc., Heisler submitted a certificate from the Secretary of State,
stating that a records search failed to reveal a qualified corporation named Girod
LoanCo, LLC, in support of her exception. 364 So.2d 197, 197–98 (La. Ct.
App.1978), writ denied, 366 So.2d 563 (La.1979). Since La. 12:314(A) does not
apply to corporations not doing business in the state pursuant to La. R.S. 12:302,

1
“No foreign corporation transacting business in this state shall be permitted to present any judicial
demand before any court of this state unless it has been authorized to transact such business, if required
by, and as provided in, this Chapter.”

20-C-56 1

that document alone would not satisfy Heisler’s burden of proof. See Williamson-
Dickie, 422 So.2d at 604; C.M. Masland, 364 So.2d at 197–98.

In fact, Girod asserted that La. R.S. 12:1343(7) provides that a foreign
limited liability company shall not be considered to be doing business in Louisiana
such that it would be required to obtain a certificate of authority from the Secretary
of State when it is “securing or collecting debts or enforcing any rights in property
securing the debts.” In response, Heisler argued that La. R.S. 12:1343(7) did not
apply to Girod because Girod is not a debt collector within the meaning of the Fair
Debt Collection Practices Act [15 U.S.C. § 1692a(6)] as interpreted by Henson.2
The fact that Girod would not be subject to suit under the Fair Debt Collection
Practices Act is not relevant to this case. The language of La. R.S. 12:1343(7)
does not mention debt collectors, it mentions the act of collecting debts. Heisler’s
reliance on Henson is misplaced.

Furthermore, Uniform Rules-Courts of Appeal, Rule (URCA) 2-18.7
provides as follows:

2-18.7. When Rehearing Will Be Considered
An application for rehearing will be considered in cases where
the court has:

(A) Granted a writ application on the merits;
(B) Dismissed an appeal; or
(C) Ruled on the merits of an appeal.

URCA Rule 4-9 provides that “Rules 2-18.1 through 2-18.7 apply to
requests for rehearings related to writ applications.”

As relator is not entitled to a rehearing and for the reasons discussed above,
her application for rehearing is denied.

2
Santander was not subject to the Fair Debt Collection Practices Act because it did not qualify as a “debt
collector” meaning one who “regularly collects or attempts to collect . . . debts owed or due . . . another.”
137 S. Ct. at 1720–21. Heisler argues that Girod, like Santander, is not a debt collector because it owned
the debt it was attempting to collect.

20-C-56 2

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 06/17/2020 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

20-C-56
E-NOTIFIED
Henry L. Klein (Relator)
James E. Lockridge (Respondent)
Katilyn M. Hollowell (Respondent)
Jill A. Gautreaux (Respondent)

MAILED
Michael G. Bagneris (Relator)
Attorney at Law
935 Gravier Street
Suite 2110
New Orleans, LA 70112