Sunset Harbour, L.L.C. Versus Amer Zughayer

SUNSET HARBOUR, L.L.C. NO. 23-CA-267

VERSUS FIFTH CIRCUIT

AMER ZUGHAYER, ET. AL. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 814-156, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

May 22, 2024

MARC E. JOHNSON
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Timothy S. Marcel

FEBRUARY 8, 2023 JUDGMENT VACATED
JANUARY 10, 2023 JUDGMENT REVERSED;
JUDGMENT RENDERED
MEJ
FHW
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
SUNSET HARBOUR, L.L.C.
Nathaniel M. Phillips

COUNSEL FOR DEFENDANT/APPELLANT,
JEFFERSON PARISH SHERIFF JOSEPH P. LOPINTO, III
Kenneth C. Fonte

COUNSEL FOR DEFENDANT/APPELLEE,
JOHN PAGE AND YOLANDA PAGE
Adrian F. LaPeyronnie, III

JOHNSON, J.

Defendant/Appellant, Sheriff Joseph P. Lopinto, III (“the Sheriff”), seeks

review of the 24th Judicial District Court’s January 10, 2023 and February 8, 2023

judgments denying his claim to the net proceeds of a sale, deposited in the Registry

of the Court, as a result of the judicial partition of 15 Azalea Lane in Jefferson

Parish and granting John and Yolanda Page’s claim to the deposited funds; and

subsequently granting the Pages’ former counsel Jim S. Hall and Associates LLC’s

Petition for Intervention and ordering the deposited funds to be released to Jim S.

Hall and Associates, the Pages, and the Pages’ counsel Greenberg & LaPeyronnie,

LLC. For the reasons that follow, we vacate and reverse the trial court’s February

8, 2023 and January 10, 2023 judgments, respectively, and render judgment in

favor of the Sheriff.

FACTS AND PROCEDURAL HISTORY

On June 3, 2013, Defendants/Appellees, John and Yolanda Page (“the

Pages”), recorded an August 17, 2012 money judgment for $70,000.00, plus costs,

against Adel and Adham, Inc., DBA Mike’s Discount Store, Amer Zughayer, and

Juma A. Mousaisom in the Jefferson Parish Mortgage Records in order to obtain a

judicial mortgage. Amer Zughayer, a judgment debtor in that case, owned the

property located at 15 Azalea Lane in Marrero, at the time the judicial mortgage

was recorded.

On October 24, 2013, the Sheriff’s predecessor, Sheriff Newell Normand,

filed into the mortgage records of the Jefferson Parish Clerk of Court a tax lien and

privilege against both the movable and immovable property of Amer Zughayer for

unpaid sales and occupational license taxes, penalties, interest, and attorney’s fees

for the period of January 2011 through July 2013. On December 10, 2013, Sheriff

Normand obtained a judgment for $125,281.97, together with legal interest thereon

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from the date of judicial demand and attorney fees, which he recorded as a judicial

mortgage that same day.

On August 16, 2017, Sheriff Normand sold a tax sale title for an undivided

1% interest in the 15 Azalea Lane property to NAR Solutions, Inc. (formerly

known as Nebraska Alliance Realty Company), which in turn transferred its 1%

tax sale title interest to Plaintiff/Appellee, Sunset Harbour, L.L.C. (“Sunset

Harbour”) on January 20, 2021.

A few days after Sunset Harbour obtained the 1% tax sale interest in 15

Azalea Lane, it filed a Petition to Confirm and Quiet Title to Immovable Property

and Partition. Defendants named therein included Amer Zughayer, the Sheriff, in

his official capacity as Sheriff and Ex-Officio Tax Collector, and the Pages. The

Pages filed their answer to the Petition on March 8, 2021. No other defendant filed

responsive pleadings to the Petition. The Pages alleged in their answer they

possessed a vested property right through the August 17, 2012 money judgment,

recorded on June 3, 2013, which became a judicial mortgage. The Pages prayed

that the court find Sunset Harbour had no interest in the property, or, in the

alternative that there be judgment confirming Sunset Harbour’s 1% interest in the

property, and Sunset Harbour be awarded reimbursement for expenses in an

amount not to exceed 1% of the net value for which the property is sold.

On August 26, 2021, Sunset Harbour moved for preliminary default. Sunset

Harbour claimed that all of the defendants, including the Sheriff and Amer

Zughayer, received service of the citation via personal service, and none of the

defendants (with the exception of the Pages) answered within the six months of

service provided by La. R.S. 47:2266(A), or filed any responsive pleadings. On

October 6, 2021, Sunset Harbour certified to the court that the proposed Motion for

and Consent Judgment, between Sunset Harbour and the Pages regarding the 15

Azalea Lane property was circulated to all of the other parties by certified mail on

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September 24, 2021 and no opposition had been received. On October 8, 2021, in

accordance with the Consent Judgment, the district court ordered, adjudged, and

decreed judgment in favor of Sunset Harbour as follows:

1) Quieting and Confirming Plaintiff's title to the property described,
supra, declaring it to be the owner of 1% of the Property free of any
interest held by JOHN PAGE AND YOLANDA PAGE;

2) Enjoining and forever prohibiting JOHN PAGE AND YOLANDA
PAGE from setting up any right, title, or interest over or to the 1% of
the Property owned by Plaintiff;

3) Ordering the Clerk of Court for the Parish of Jefferson to
PARTIALLY CANCEL the Judgment recorded June 3, 2013 as
Instrument no. 11326810, MOB 4576, folio 488 in favor of JOHN
PAGE AND YOLANDA PAGE insofar as it encumbers the property
described, supra;

4) Ordering that should there be any difference between the legal
description of the Property as it appears herein and Plaintiff’s Tax
Sale Certificate, the Tax Sale Certificate is hereby reformed to mirror
the legal description of the Property as set forth in this Judgment;

5) Ordering that 100% of the Property be advertised and sold at public
auction WITHOUT APPRAISAL, but with the minimum bid
amount to include the total reimbursement amount of this judgment,
by the Sheriff of Jefferson Parish, with SUNSET HARBOUR, L.L.C.
being reimbursed $2,164.67 for the 2016 ad valorem taxes it paid,
with interest at the rate of 1% per month from entry of judgment
herein through the Sheriff’s Sale, together with interest and costs to
date in the amount of $7,168.92, pursuant to LA. C.C. ARTS. 804,
806, 496, and 497, and LA. CODE CIV. PRO. ARTS. 4613 and 4626,
for a total reimbursement of $9,333.59 plus interest accrued as recited
herein, assessed against the gross proceeds of the sale and payable
directly to SUNSET HARBOUR, L.L.C. and declaring that all
amounts Plaintiff is owed in reimbursement outrank any other
encumbrances, including the Judgment in favor of JOHN PAGE AND
YOLANDA PAGE, supra;

6) Ordering that the remaining proceeds of the sale be split pro rata in
accordance with the ownership interests of the Parties, with Plaintiff,
SUNSET HARBOUR, L.L.C., owning a 1% interest paid directly
from the remaining sale proceeds;

7) Declaring that the Judgment recorded in favor of JOHN PAGE
AND YOLANDA PAGE, described supra, shall attach to the
remaining proceeds of the partition sale, after payment of Plaintiff’s
reimbursement, and after payment of Plaintiff’s 1% ownership share,
and ordering that JOHN PAGE AND YOLANDA PAGE SHALL BE
PAID: (1) $83,880.48 plus judicial interest thereon from September 1,
2021 until paid representing a judgment award of $50,000.00 for

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damages; AND (2) $33,552.19 plus judicial interest thereon from
September 1, 2021 until paid representing a judgment of attorney’s
fees of $20,000.00; AND (3) $1,921.57 plus judicial interest thereon
from September 1, 2021 until paid representing a judgment for costs,
said judgment dated August 17, 2012 rendered in favor of John Page
and Yolanda Page in the Civil District Court for the Parish of Orleans,
State of Louisiana in matter no. 07-12958, Division E-07, titled
“Yolanda Page, wife of/and John Page vs. Adel and Adham, Inc.,
D.B.A. Mike’s Discount Store, Amer Zughayer, and Juma A.
Mousaisom”, and filed for record in the Conveyance Office of the
Jefferson Parish Clerk of Court on June 3, 2013, assigned act no.
11326810, and recorded in MOB 4576, page 488, through their
undersigned counsel, in satisfaction of the Judgment in their favor,
directly from the remaining sale proceeds; and

8) Ordering that the Sheriff of Jefferson Parish and/or the appointed
Notary Public shall deposit the remaining net sale proceeds, if any,
after deduction and payment of their costs and commissions and the
reimbursements described, supra, into the Registry of the Court.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that that there is no appeal from this judgment and that it
shall have full and immediate effect.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that SUNSET HARBOUR, L.L.C. and JOHN PAGE
AND YOLANDA PAGE shall each bear and be responsible for their
own attorney’s fees, expenses, and taxable costs.

Notably, in the Consent Judgment, the Pages consented to the partial cancellation

of their judicial mortgage to the extent it encumbered the 15 Azalea Lane property.

Also, no judgment was entered against any of the other defendants and/or

creditors.

On January 4, 2022, Sunset Harbour filed a Motion for Hearing to Confirm

Default against Mr. Zughayer, the Sheriff, and other creditors. In an Affidavit of

Service pursuant to La. C.C.P. art. 1704, counsel for Sunset Harbour confirmed

that he was able to serve notice of his intent to obtain a default judgment on the

State of Louisiana through the Attorney General via certified mail, and on the

Sheriff, who was served personally through the Jefferson Parish Coroner’s Office.

After a hearing on February 7, 2022, the district court entered a default

judgment on February 10, 2022 in favor of Sunset Harbour and against Amer

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Zughayer, the State of Louisiana, the Sheriff in his official capacity, as well as

other defendants, confirming and quieting Sunset Harbour’s tax title to an

undivided 1% of the Azalea Lane property. The judgment also ordered partition by

licitation, as well as the following orders:

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the Clerk of Court for the Parish of Jefferson is
authorized and commanded to PARTIALLY CANCEL the
following inscriptions insofar as they encumber the Property:
[...]
8. A Money Judgment in favor of JOSEPH P. LOPINTO, III, IN HIS
OFFICIALCAPACITY AS SHERIFF AND EX-OFFICIO TAX
COLLECTOR FOR THE PARISH OF JEFFERSON recorded
December 10, 2013 as Instrument no.11359798, MOB 4599, Folio
542; and

9. A Tax Lien in favor of JOSEPH P. LOPINTO, III, IN HIS
OFFICIAL CAPACITYAS SHERIFF AND EX-OFFICIO TAX
COLLECTOR FOR THE PARISH OF JEFFERSON recorded
October 24, 2013 as Instrument no. 11352563, MOB 4594, Folio 455.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that SUNSET HARBOUR, L.L.C. shall be reimbursed
$2,186.54 for the 2016 ad valorem taxes it paid, with interest at the
rate of 1% per month (being $21.87 per month) from entry of
judgment herein through the Sheriff’s Sale, together with $1,311.92 as
penalty and interest accrued through the date of this judgment
pursuant to LA. R.S. § 47:1993(G), 47:2127(B), and 47:2243, plus
court costs and attorney fees for this unopposed partition in the
amount of $6,000 pursuant to LA. CODE CIV. PRO. ARTS. 4613 and
4626, for a total reimbursement of $9,498.46, assessed against the
gross proceeds of the sale and payable directly to SUNSET
HARBOUR, L.L.C.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the remaining proceeds of the sale be split pro rata in
accordance with the ownership interests of the Parties, with Plaintiff,
SUNSET HARBOUR, L.L.C., owning a 1% interest paid directly
from the remaining sale proceeds.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the remaining proceeds of the sale shall be paid to
JOHN PAGE and YOLANDA PAGE in accordance with the Consent
Judgment entered in this matter on October 8, 2021.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the Sheriff of Jefferson Parish or the appointed
Notary Public shall deposit the net sale proceeds, after deduction and
payment of the Sheriff’s costs and commission and the disbursements
recited, supra, into the Registry of the Court.

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IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that this Judgment shall constitute a final and appealable
judgment pursuant to LA. CODE CIV. PRO. ARTS. 1841, 1911,
1918, and 1919 or, alternatively, this Judgment shall constitute a final
and appealable judgment pursuant to LA. CODE CIV. PRO. ART.
1915(B)(1) as there is no just reason for delay.

According to the transcript of the February 7, 2022 hearing, Sunset Harbour

requested a default judgment against Amer Zughayer, the Sheriff, and four other

named defendants in the suit to quiet 1% ownership via tax title with a request for

partition by licitation and reimbursement. The February 10, 2022 judgment ordered

the Clerk of Court to partially cancel all remaining mortgages and the Sheriff’s tax

lien to the extent they encumbered the property. The Pages’ judicial mortgage was

cancelled on April 27, 2022.

On July 11, 2022, at the Sheriff’s request, the clerk of court issued a writ of

fieri facias for the seizure of Mr. Zughayer’s property under the Sales Tax

Judgment of December 10, 2013. That same day, the Sheriff filed a notice of

seizure into the mortgage records which described the property to be seized as a

99% undivided ownership interest in the Azalea Lane property. Also described in

the notice is 99% of the net proceeds from any judicial sale or any judicial partition

sale, including the sale conducted pursuant to the February 10, 2022 judgment

rendered by the 24th Judicial District Court in case number 814-156.

The partition sale took place on July 13, 2022 and documents regarding the

sale were filed into the record a few weeks later. On July 29, 2022, the Sheriff

filed a Rule to Deposit Funds into the Registry of the Court and prayed that the

creditors and/or defendants show cause as to the manner in which the funds from

the sale of 15 Azalea Lane, $92,907.02, were to be distributed. The Pages filed a

Claim to Deposited Funds on August 29, 2022, and cited the district court’s earlier

judgment that ordered that the remaining proceeds from the sale deposited with the

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Registry of the Court be awarded to them and released to their counsel in partial

satisfaction of their judicial mortgage.

The Sheriff filed a Claim to All of the Net Proceeds of the Judicial Partition

Sale of the Azalea Lane Property Deposited into the Registry of the Court and

Opposition to the Claim of John Page and Yolanda Page on September 1, 2022.

He attached proof of the seizing creditor’s privilege he obtained in July 2022 under

La. C.C.P. art. 22921, along with his money judgment, judicial mortgage and tax

lien. The Pages filed an Opposition to the Sheriff’s claim on October 17, 2022.

Olivia Byers, the notary public who was appointed to assist with the sheriff’s sale

and proces verbal of the subject property, also filed a claim for $1,000.00.

The district court heard the matter on October 25, 2022, entered judgment in

favor of Ms. Byers, and ordered the Jefferson Parish Clerk of Court to release

$1,000 to her employer, as full and final satisfaction for the work completed in

connection with the partition sale. The court also took the Sheriff’s and the Pages’

claims under advisement and ordered those parties to supplement their memoranda

by November 9, 2022. On November 16, 2022 Jim S. Hall & Associates, LLC

(“Hall”), the Pages’ former counsel, filed a Petition of Intervention to Claim the

Deposited Funds, seeking $20,000.00 plus costs and interest.

After considering the pleadings, law and evidence, exhibits and

supplemental memoranda, the district court entered judgment in favor of the Pages

and against the Sheriff on January 10, 2023. In this judgment, the court also set a

hearing date for Hall’s Petition for Intervention. After a February 8, 2023 hearing,

1
Louisiana Code of Civil Procedure art. 2292. Privilege of creditor on seized property; successive
seizures

A. To the extent not otherwise governed under Chapter 9 of the Louisiana Commercial Laws
(R.S. 10:9-101, et seq.), a seizing creditor, by the mere act of seizure, acquires a privilege
on the property seized, which entitles him to a preference over ordinary creditors.
B. When several seizures of the same property are made by ordinary creditors, the seizing
creditors acquire a privilege and are entitled to a preference among themselves according
to the order of their seizures.

23-CA-267 7

the district court also issued judgment in favor of Hall and against the Pages for

$31,408.40 for attorney’s fees and costs from the personal injury case, plus

interest, and ordered the Clerk of Court to release that sum of the funds deposited

in the Registry of the Court to Hall. The district court then ordered the remaining

$60,587.62 of the funds to be released to the Pages and their counsel, Greenberg &

LaPeyronnie, LLC.

Sheriff Lopinto timely appeals the district court’s January 10, 2023 and

February 8, 2023 judgments. The district court granted his motion for suspensive

appeal without bond on February 17, 2023.

ASSIGNMENTS OF ERROR

1. The district court erred by denying the Sheriff’s claim to the funds deposited
into the Registry of the Court and by failing to award and order the release
of the deposited funds to the Sheriff.

2. The district court erred by granting the claims of the Pages, Greenburg &
LaPeyronnie, LLC, and Hall, and by ordering the release of the deposited
funds to them.

Sheriff Lopinto argues that the seizing creditor’s privilege he obtained on the

Azalea Lane property, by the mere act of seizure, gave him a privilege on the

property seized, under La. C.C.P. art. 2292, afforded him a preference over

ordinary creditors, and became effective and enforceable on July 11, 2022. He

further argues that the privilege is “independent and distinct from the partial

cancellation of the Sheriff Lopinto’s “Judicial Mortgage and Tax Lien” on the

property and the seizing creditor’s privilege attaches to Mr. Zughayer’s 99% share

of the partition sale proceeds. Under La. C.C. art. 815, a mortgage, lien, or

privilege that burdens a co-owner’s share of a thing attaches to his share of the

proceeds of the sale when a thing is partitioned by licitation. The Sheriff concludes

that his tax lien also encumbers the tax debtor’s movable property, but the Pages

have no privilege with respect to the net proceeds, because they agreed to and the

district court ordered the partial cancellation of their judicial mortgage with respect

23-CA-267 8

to the Azalea Lane property prior to the partition sale. He also avers that the

Consent Judgment between Sunset Harbour and the Pages does not affect the

ranking of his seizing creditor and tax lien privileges, which burden the tax

debtor’s movable and immovable property, and that there is no decretal language

granting the Pages or Sunset Harbour any relief against the Sheriff.

The Pages counter that the district court’s October 8, 2021 Consent

Judgment and February 10, 2022 Default Judgment were final judgments that

ranked the Sheriff’s claim as inferior to those of Sunset Harbour and the Pages

respectively and determined the amounts to be paid to each judgment creditor; and

Sheriff Lopinto did not appeal either of those judgments. The Pages claim that the

Consent and Default Judgments “are res judicata to the Sheriff’s claim” to the

extent he seeks to (re-)determine the ranking of the claims. The Pages further

argue that the Sheriff’s “subsequent seizure was not authorized by law and does

not serve as a legal predicate for the creation of a La. C.C.P. art. 2292 seizing

creditor's privilege” and his claim to the sale proceeds was untimely asserted.

Also, the Pages argue that their judicial mortgage, which was recorded six months

before the Sheriff’s, attached to all of Mr. Zughayer’s present and future property,

and their claim was superior to the Sheriff’s claim.

Sunset Harbour also contends that the Consent and Default Judgments are

res judicata, that the Sheriff is not entitled to relief even if res judicata does not

apply, and that the Sheriff’s reliance on La. C.C.P. art. 2292 and La. R.S.

47:337.65 are misplaced. Sunset Harbour argues that since the Sheriff did not file a

petition for nullity, a motion for new trial, or a timely appeal of the Consent and

Default Judgments, those judgments “are presumed valid and to have the force of a

thing adjudged”, citing Deutsche Bank Nat. Tr. Co. v. Carter, 10-663 (La. App. 5

Cir.1/25/11), 59 So.3d 1282, 1286, writ denied, 11-392 (La. 4/8/11), 61 So.3d 691.

Sunset Harbour also avers that La. C.C.P. art. 2292 only provides the seizing

23-CA-267 9

creditor with a superior privilege over ordinary creditors and the Pages were

secured creditors. Last, it avers that the Pages’ judicial mortgage was recorded

prior to the Sheriff’s, and attached to the sale proceeds, as it outranked the

Sheriff’s.

LAW AND DISCUSSION

A judicial mortgage is an “instrument that ... establishes a real right in or

over an immovable”, created when a judgment for the payment of money is filed

with the recorder of mortgages. La. C.C. arts. 3299, 3300 and 3338. Property

susceptible to mortgage is corporeal immovable property and component parts. La.

C.C. art. 3302. Judicial mortgages are general mortgages established over the

obligor’s present and future property when he acquires it. La. C.C. arts. 3286 and

3303.

Louisiana Civil Code Article 3307 lays the foundation for the ranking of

mortgages, providing that “the mortgagee is preferred to ... others whose rights

become effective after the mortgage becomes effective as to them.” A mortgage

becomes effective as to a third person when it is recorded in the appropriate

mortgage records. La. C.C. arts. 3338. All mortgages rank in the order they are

filed in the mortgage records in the parish where the real estate is located. That

mortgage which is recorded first has priority over subsequently recorded

mortgages. Peter S. Title, 1 La. Prac. Real Est. § 15:2 “Mortgage priority” (2d ed.

2020); La. C.C. art. 3307.

A judicial mortgage, like any other type mortgage, can only be extinguished

by one of the methods enumerated in La. C.C. art. 3319. These include extinction

of the thing mortgaged, confusion (the mortgagee acquiring ownership of the thing

mortgaged), consent of the mortgagee, and “discharge through execution or other

judicial proceeding in accordance with the law.” La. C.C. art. 3319; James v.

23-CA-267 10

Ocean Nat., L.L.C., 04-2119 (La. App. 4 Cir. 5/18/05), 905 So.2d 1096, 1101, writ

denied, 05-2108 (La. 2/10/06), 924 So.2d 171.

In this matter, only the Pages’ judicial mortgage was cancelled with their

consent. The Pages’ judicial mortgage was cancelled in April 2023, but the sale of

the property by licitation did not occur until July 2023. However, under La. R.S.

47:337.652, the tax payment due to the Sheriff operated as a lien, privilege, and

mortgage on all of Zughayer’s movable and immovable property. Therefore, by

operation of La. C.C.P. art. 2292, the tax lien attached to and must be satisfied

from the cash proceeds from the sale – a movable.

The sad irony that the Pages’ consent to the partial cancellation of their

judicial mortgage before the tax sale caused them to lose their position as the prime

ranking creditor with regards to being able to satisfy their money judgment with

the proceeds from the sale of the Azalea Lane property is not lost on the Court.

Both the October 2021 Consent Judgment and the Default Judgment issued a year

later confirming and quieting title and ordering partition by licitation purported to

attach the Pages’ judicial mortgage to the proceeds from the sale of 15 Azalea

Lane. But, we cannot give retroactive effect to a right that no longer existed by the

date of the sale. Once the Pages’ judicial mortgage was cancelled with respect to

15 Azalea Lane, the property was no longer burdened by the extinguished

mortgage; thus, the Pages were no longer secured creditors with respect to the

2
La. R.S. 47:337.65. Tax obligation to constitute a lien, privilege and mortgage

Except as is specifically provided in the laws regulating building and loan associations, any tax,
penalty, interest, attorney fees, or other costs due shall operate as a lien, privilege and
mortgage on all of the property of the tax debtor, both movable and immovable, which
said lien, privilege and mortgage shall be enforceable in any court of competent
jurisdiction in an action, at law, or may be enforced as otherwise provided by this
Chapter. The collector may cause notice of such lien, privilege and mortgage to be
recorded at any time after the tax becomes due, whether assessed or not, and regardless of
whether or not then payable, in the mortgage records of any parish wherein the collector
has reason to believe the tax debtor owns property. The lien, privilege and mortgage
created by this Section shall affect third parties only from the date of recordation and
shall take their respective ranks by virtue of recordation.

23-CA-267 11

property and, after the partition of licitation was perfected, their then non-existent,

judicial mortgage could not attach to the proceeds of the judicial sale under La.

C.C. art. 815. If it had not been cancelled, the Pages’ superior mortgage would

have been satisfied first under La. C.C.P. 23743. Instead, the Sheriff, as a result of

the writ of fieri facias he filed on September 1, 2022, became the seizing creditor

under La. C.C.P. arts. 2292(A) and 23734, and is entitled to be paid first.

Last, because the Sheriff became the seizing creditor, to be paid first, the

district court committed error when it ordered funds from the proceeds of the sale

of the Azalea Lane property placed in the Registry of the Court to be released to

Jim S. Hall and Associates, LLC, and the Pages and their counsel, Greenberg &

Peyronnie, LLC.

DECREE

Considering the foregoing, the February 8, 2023 judgment granting Jim S.

Hall and Associates, LLC’s Petition for Intervention and releasing proceeds of the

sale to the Pages and the law firms is vacated. The January 10, 2023 judgment is

reversed; Sheriff Lopinto’s claim to the net proceeds of the judicial partition sale of

the Azalea Lane property, $92,907.02, is GRANTED and the district court is

ORDERED to release the funds in its Registry to the Sheriff; the Pages’ claim to

the deposited funds is DENIED.

FEBRUARY 8, 2023 JUDGMENT VACATED
JANUARY 10, 2023 JUDGMENT REVERSED;
JUDGMENT RENDERED

3
La. C.C.P. art. 2374. Property subject to superior mortgage; payment of price

If there is a security interest, mortgage, lien, or privilege on the property superior to that
of the seizing creditor, the purchaser shall pay to the sheriff only that portion of the sale
price which exceeds the amount of the superior security interest, mortgage, lien, or
privilege.
4
La. C.C.P. art. 2373. Distribution of proceeds of sale

After deducting the costs, the sheriff shall first pay the amount due the seizing creditor,
then the inferior security interests, mortgages, liens, and privileges on the property sold,
and shall pay to the debtor whatever surplus may remain.

23-CA-267 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 22, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-267
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
NATHANIEL M. PHILLIPS (APPELLEE) KENNETH C. FONTE (APPELLANT) ADRIAN F. LAPEYRONNIE, III
(APPELLEE)

MAILED
OLIVIA KEEN (APPELLEE) JENNIFER L. CROSE (APPELLEE)
700 CAMP STREET MATTHEW B. MORELAND (APPELLEE)
NEW ORLEANS, LA 70130 ATTORNEYS AT LAW
800 NORTH CAUSEWAY BOULEVARD
SUITE 100
METAIRIE, LA 70001