Carl D. Bryant and Cynthia D. Bradford v. Dean Morris, LLC, Christinan Trust, a Division of Wilmington Savings Fund Society, Normandy Mortgage Loan Trust Series 2016-1, Stanwich Mortgage Loan Trust Series 2013-7, Aero Mortgage Loan Trust 2017-1, FV-1, Inc., Argent Mortgage Company, LLC, Residential Funding Company, LLC, Rushmore Loan Management Services, LLC, Homecomings Financial LLC, Rescap Liquidating Trust, and Marian Crane Thompson

Judgment rendered August 10, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,657-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CARL D. BRYANT AND Plaintiff-Appellants
CYNTHIA D. BRADFORD

versus

DEAN MORRIS, LLC, Defendant-Appellees
CHRISTINAN TRUST, A
DIVISION OF WILMINGTON
SAVINGS FUND SOCIETY,
NORMANDY MORTGAGE
LOAN TRUST SERIES 2016-1,
STANWICH MORTGAGE LOAN
TRUST SERIES 2013-7, AERO
MORTGAGE LOAN TRUST
2017-1, FV-1, INC., ARGENT
MORTGAGE COMPANY, LLC,
RESIDENTIAL FUNDING
COMPANY, LLC, RUSHMORE
LOAN MANAGEMENT
SERVICES, LLC,
HOMECOMINGS FINANCIAL
LLC, RESCAP LIQUIDATING
TRUST, AND MARIAN CRANE
THOMPSON

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 623,439

Honorable Craig O. Marcotte, Judge

*****

ALAN PESNELL LAWYER LLC Counsel for Appellants,
By: W. Alan Pesnell Carl D. Bryant and
Cynthia D. Bradford

DEAN MORRIS LLC Counsel for Appellees,
By: Ashley E. Morris Wilmington Savings
Fund Society, Normandy
Mortgage Loan Trust
Series 2016-1, Aero
Mortgage Loan Trust
2017-1, and Dean
Morris, LLC

BAKER DONELSON BEARMAN Counsel for Appellee,
CALDWELL & BERKOWITZ PC Rushmore Loan
By: Katie L. Dysart Management Services
Camalla K. Guyton LLC

COOK, YANCEY, KING & GALLOWAY Counsel for Appellee,
By: Robert Kennedy, Jr. FV-1 Inc., as Trustee for
Morgan Stanley Capital
Holdings LLC

BURR & FORMAN LLP Counsel for Appellee,
By: Christopher D. Meyer Argent Mortgage Co.,
LLC

STEEG LAW FIRM, LLC Counsel for Appellee,
By: Charles L. Stern, Jr. Marian Crane Thompson

*****

Before MOORE, PITMAN, and STEPHENS, JJ.

MOORE, C.J.

The plaintiffs, Carl D. Bryant and Cynthia D. Bradford, appeal a

judgment that sustained the defendants’ exceptions of prescription and

dismissed the plaintiffs’ claims with prejudice in an action that alleged

fraud, ill practices and wrongful seizure and sale of their property. The

plaintiffs also appeal a ruling from the trial court denying a confirmation of

default and relief against three additional defendants.1

For the following reasons, we affirm.

FACTS

On May 25, 2005, Carl Bryant borrowed $170,150.00 from Argent

Mortgage Company evidenced by an adjustable rate, interest-only note

signed by him (hereinafter “Note”) in order to purchase a house located at

10461 Plum Creek Drive, Shreveport, Louisiana 71106. The note was

secured by a mortgage (hereinafter “Mortgage”) on the property executed by

Bryant and his daughter, Cynthia Bradford, a co-owner of the property. The

Mortgage was recorded in the public records for Caddo Parish.

The Note signed by Bryant had a term of 30 years, requiring him to

make interest-only (7.3%) monthly payments from July 1, 2005, until July 1,

2007; then principal and interest payments of $1,035.08 beginning July 1,

2007 until June 1, 2035.

Bryant failed to make the monthly interest installment for October 1,

2006, and all of the monthly payments thereafter. Argent, through its agent,

filed in rem foreclosure proceedings on May 21, 2007, with a petition to

1
Stanwich Mortgage Loan Trust 2017-1, Homecomings Financial LLC and
Residential Funding Company.

enforce security interest by ordinary process and captioned as GMAC

Mortgage, LLC v. Carl D. Bryant and Cynthia Denise Bradford (hereinafter

“First Action”). An in rem judgment was entered against the appellants on

January 28, 2008.

Subsequently, the law firm of Dean Morris, LLC, attorneys for

GMAC, sent the Caddo Parish Sheriff a facsimile letter requesting the

Sheriff to stop foreclosure proceedings because the mortgagors had

completed a loan modification. The letter also said that GMAC intended to

dismiss the suit without prejudice. A motion by GMAC to dismiss the suit

without prejudice was granted on April 21, 2008.

Nevertheless, Mr. Bryant failed to pay the monthly installment for

June 1, 2008 and all monthly installments thereafter. A second in rem

foreclosure proceeding commenced with a petition to enforce security

interest by ordinary process captioned as Homecomings Financial, LLC f/k/a

Homecomings Financial Network, Inc. v. Carl D. Bryant and Cynthia

Denise Bradford (hereinafter “Second Action”). This action was also

dismissed without prejudice, on March 2, 2009.

On September 27, 2011, Argent assigned the note and mortgage to

FV-1, Inc. in Trust for Morgan Stanley Mortgage Capital Holdings, LLC.

This was Argent’s last act with respect to the Note and Mortgage.

Mr. Bryant subsequently defaulted on the FV-1 note multiple times,

which resulted in another foreclosure proceeding (“Third Action”) initiated

on October 11, 2011. Default judgments were entered against Bryant and

Bradford (“plaintiffs”) in May of 2012; however, FV-1 agreed not to execute

on the judgments after the plaintiffs agreed to another loan modification,

with Rushmore Loan Management Services, LLC, the lender who serviced
2

the plaintiffs’ loan. The loan modification “de-accelerated” the loan to a

status where the lender would accept monthly payments as opposed to

requiring payment in full. FV-1’s last act concerning the property was the

assignment of its interest in the Note and Mortgage to Christiana Trust2 on

September 10, 2015, almost 5 years before the plaintiffs filed this suit on

April 22, 2020.

Finally, Christiana Trust filed a foreclosure proceeding (“Fourth

Action”) on December 9, 2015. Mr. Bryant was personally served with the

petition to enforce security interest by ordinary process on December 15,

2015. A default judgment was entered against him on May 6, 2016. Ms.

Bradford, who was believed to be an absentee, was served with a copy of the

judgment through a court-appointed curator for her. Judgment was entered

against Ms. Bradford on August 1, 2016.

The judgments were later assigned to Wilmington Savings Fund

Society, FSB d/b/a Christiana Trust, as Trustee for Normandy Mortgage

Loan Trust, Series 2016-1 and then to Wilmington Savings Fund Society,

FSB, not in its individual capacity but solely as trustee, on behalf of Aero

Mortgage Loan Trust 2017. This entity sought to enforce the judgment

through a writ of fieri facias issued on September 13, 2016. Carl Bryant was

served with the writ on September 15, 2016, and Cynthia Bradford was

served on September 19, 2016, through the curator ad hoc.

Mr. Bryant and Ms. Bradford alleged later that during the lawsuit filed

by Wilmington Savings Fund Society, i.e., the Fourth Action, they “began

2
The caption of this case misspells the defendant as Christinan Trust.
3

trying to obtain information regarding the claims” but the defendants evaded

and avoided their questions.

The property was scheduled for sheriff’s sale on August 9, 2017.

However, two days prior to the sale, Mr. Bryant filed for Chapter 13

bankruptcy in the U.S. Bankruptcy Court for the Western District of

Louisiana. The bankruptcy court dismissed the suit on June 25, 2018, for

failure to make bankruptcy plan payments.

The property was rescheduled for sheriff’s sale on October 3, 2018,

but was halted on October 2, 2018, one day before the scheduled sale, when

Mr. Bryant filed another petition for bankruptcy. The bankruptcy petition

was prepared by Ms. Bradford who signed and filed a declaration attesting to

the fact that she prepared the petition. This bankruptcy was dismissed on

October 22, 2018, 20 days after it was filed. Ms. Bradford later admitted

that she assisted her father in preparing the bankruptcy petition for purposes

of stopping the sheriff’s sale.

The sheriff’s sale was finally conducted on April 24, 2019, when the

property was sold to Wilmington Savings Fund Society, FSB, as trustee, on

Behalf of Aero Mortgage Loan Trust 2017-1. The property was later sold to

a third party, Marian Crane Thompson on March 13, 2020, and the deed is

recorded in the Caddo Parish conveyance records. The plaintiffs also named

Ms. Thompson a defendant in this case and seek a judgment declaring her

deed null and void.

Plaintiffs filed the instant petition on April 21, 2020, three days short

of one year after the sheriff’s sale of the property, and a little more than a

month after the property was sold to a third party. They alleged that because

they had never received any answers to their questions, they were forced to
4

seek the advice of an attorney within 30 days of filing suit. The attorney

advised them that the various assignments and judgments were not

legitimate because the Note was extinguished by the first action resulting in

a judgment against them in 2008. They alleged that they were unaware that

the original judgment in 2008 extinguished the Note.

The Petition

The plaintiffs characterize this petition as a nullity action combined

with a declaration of rights and for supplemental relief (i.e., damages). The

petition names as defendants all the entities who have held the Note and/or

the Mortgage and those who represented those entities in the four

foreclosure proceedings that resulted in the three judgments against them.

The plaintiffs alleged:

(1) the Note and Mortgage were extinguished by the January

28, 2008 judgment, in the First Action.

(2) the judgment obtained by the First Action has prescribed

and is therefore unenforceable.

(3) the plaintiffs should be declared owners of the property, free

of any mortgages, liens or encumbrances.

(4) Because the Note and Mortgage were extinguished by the

judgment granted in the First Action, the subsequent judgments of

May 14, 2012 (Second Action) and May 6, 2016 (Fourth Action)

together with the sheriff’s sale deed, are also all null and void.

Finally, they seek to quiet title (i.e., be declared the lawful owners not

subject to liens, mortgages or encumbrances), and they assert damage

claims based on fraud, negligence, gross negligence, and violations of

the LUTPA and FDCPA.
5

Most of the defendants filed peremptory exceptions of prescription and no

cause of action asserting that the action to annul the 2016 judgment resulting

in the sheriff’s sale of the property has prescribed.

After a trial on the exceptions, the court found that Bryant and

Bradford, who each claimed they had no knowledge regarding the allegedly

fraudulent foreclosure actions, finding out after they consulted an attorney in

March of 2020, were simply not credible—especially after Ms. Bradford

admitted that she helped her father file bankruptcy in order to stop the

sheriff’s sales of the property. (Mr. Bryant stipulated that his testimony

would essentially be the same as Ms. Bradford’s.)

The court concluded that the action to annul the prior judgments for

the alleged fraud had prescribed, finding that the one-year prescriptive

period began no later than August 1, 2016, when the judgment in the Fourth

Action was rendered against them (and they were served with notice of it.)

The court dismissed the petition, ruling that all the claims had prescribed and

pretermitted any ruling on the no cause of action exceptions.

Subsequently, after this judgment, the plaintiffs entered a preliminary

default judgment against some of the defendants who were not included in

the dismissal. When the default came up for confirmation, the court denied

the confirmation on grounds that the plaintiffs had not made a prima facie

case.

This later ruling is also included in the assignments of error raised in

this appeal that followed.

DISCUSSION

The plaintiffs’ action to annul hinges on the proposition that the initial

in rem judgment in the First Action rendered against them on January 28,
6

2008, extinguished the Note and merged with the judgment, and therefore,

all of the subsequent purported assignments of the Note and Mortgage were

invalid and, as purported assignments, they constituted fraud or ill practices.

While all the assignments and judgments subsequent to 2008 were invalid,

they seek to annul the May 6, 2016, judgment because it resulted in the loss

of their home via sheriff’s sale.

Plaintiffs’ theory that the Note was extinguished is based on La. R.S.

13:4231, Res Judicata, amended in 1990, which, in part, reads:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on
appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes
of action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and merged in the judgment.

Comment (a) to this amended article at least somewhat appears to

support their theory that the Note, as the underlying transaction, was

extinguished and merged in the judgment. Comment (a) reads, in part:

[I]n Mitchell v. Bertolla, 340 So. 2d 287 (La. 1976) the
plaintiff sued unsuccessfully to rescind the lease for lesion
beyond moiety and nonpayment of the rent, and then sued to
rescind the same lease for fraud. The supreme court held that
the second action was not barred by res judicata because it was
based on a different cause (the legal principle upon which the
demand is based).

Under new R.S. 13:4231, [however], the second action
would be barred because it arises out of the occurrence which
was the subject matter of the prior litigation. The central
inquiry is not whether the second action is based on the same
cause or cause of action (a concept which is difficult to define)
but whether the second action asserts a cause of action which
arises out of the transaction or occurrence which was the
subject matter of the first action. . . . For purposes of res
judicata it would not matter whether the cause of action asserted
in the second action was the same as that asserted in the first or
different as long as it arose out of the transaction or occurrence
that was the subject matter of the first action.
7

On the other hand, comment (f) implies that res judicata extinguishes

only (1) all of the causes of action that were asserted in the litigation, and (2)

any other existing causes of action that were not raised in the action. In

other words, the 1990 amendment defines res judicata more in line with the

Common Law doctrine that res judicata applies to everything pleaded in a

cause, but also applies to anything that might have been pleaded. Comment

(f) reads:

(f) Extinguished and merged. When the judgment is in
favor of the plaintiff all causes of action that had been asserted
are both extinguished and merged in the judgment. Any
subsequent action by the plaintiff must be based on the
judgment itself. Causes of action that had not been asserted by
the plaintiff are extinguished and barred by the judgment.

The defendant, Argent, contends that the plaintiffs’ argument is

misplaced and incorrect. It contends that the transaction giving rise to the

cause of action was the missed monthly payment, e.g. the October 1, 2006,

installment. While the res judicata statute would bar any future cause of

action based on failure to pay that installment or bar any other cause for an

action on the Note existing at that time, it does not extinguish the Note, nor

does it preclude a future cause of action for default on a different

installment, particularly since the plaintiffs entered into a loan modification,

and the 2008 judgment was dismissed.

Whatever the result may be, a resolution of this issue is not necessary

to rule on the merits of the plaintiffs’ assignments of error in this appeal.

The trial court sustained the exception of prescription for the action to annul

by assuming, arguendo, that the allegations are true. It then concluded that

even if the plaintiffs’ allegations of fraud and ill practices regarding the 2016

judgment have merit, such an action to annul that judgment has prescribed.
8

Accordingly, we will review only the assigned errors.

The standard of review of a judgment pertaining to an exception of

prescription turns on whether evidence is introduced at the hearing of the

exception. Mitchell v. Baton Rouge Orthopedic Clinic, LLC, 21-00061 (La.

10/10/21), 333 So. 3d 368. Evidence may be “introduced to support or

controvert [a peremptory exception] pleaded, when the grounds thereof do

not appear from the petition.” La. C.C.P. art. 931. If no evidence is

submitted at the hearing, the exception “must be decided upon the facts

alleged in the petition with all of the allegations accepted as true.” Lomont

v. Bennett, 14-2483, p. 8 (La. 6/30/15), 172 So. 3d 620, 627. In that case,

the reviewing court is simply assessing whether the trial court was legally

correct in its finding. Mitchell, supra; In re Med. Rev. Panel of Gerard

Lindquist, 18-444, (La. App. 5 Cir. 5/23/19), 274 So. 3d 750, writ denied,

19-01034 (La. 10/1/19), 280 So. 3d 165.

When evidence is introduced at the hearing, a court need not accept

the allegations of the petition as true, and the lower court decisions are to be

reviewed under a manifest error-clearly wrong standard of review. Mitchell,

supra; Lomont, supra. A caveat to this rule is that, even when evidence is

introduced, when there is no dispute regarding material facts, the reviewing

court is to apply a de novo standard of review, and give no deference to the

trial court’s legal conclusions. Mitchell, supra.

In this case, evidence, both testimonial and documentary, was

introduced into the record at the hearing on the exception of prescription.

The record clearly demonstrates that the issues in this case are not purely

legal. Factual determinations were required by the trial court with respect to

when and if the prescriptive period commenced. Accordingly, as recognized
9

by the parties, we apply a manifest error-clearly wrong standard of review to

factual determinations, but de novo review on issues of law.

An action to annul a judgment obtained by fraud or ill practices must

be brought within one year of the discovery by the plaintiff in the nullity

action of the fraud or ill practices. La. C.C.P. art. 2004(B). The burden of

proof to show that a nullity action was brought within one year of the

discovery of the fraud or ill practice is on the proponent of the nullity action.

Carrie v. The Kroger Store, 52,846 (La. App. 2 Cir. 8/14/19), 276 So. 3d

1150; Greenland v. Greenland, 08-2568 (La. App. 1 Cir. 12/9/09), 29 So. 3d

647, 653, writ denied, 10-0004 (La. 3/5/10), 28 So. 3d 1011. The one-year

limitation to file an action to annul under Art. 2004 is a period of

peremption. Id.

By their first assignment of error, plaintiffs allege that the trial court

committed legal error by granting the exceptions of prescription and

dismissing their suit. The legal error, they allege, occurred when the trial

court concluded that the one-year prescriptive period commenced when the

plaintiffs were damaged by the May 6, 2016, judgment of foreclosure, and

thus put on notice to investigate further whether they believed they were

wrongfully harmed. The plaintiffs argue, however, that pursuant to La.

C.C.P. art. 2004 (B), the commencement of prescription in an action to

annual a judgment does not begin to run until the plaintiffs’ discovery of the

fraud or ill practices. In this case, they did not learn that the May 6, 2016,

judgment was obtained as a result of fraud or ill practices until they spoke

with an attorney several years later, less than a month before suit was filed

on April 21, 2020. While the plaintiffs acknowledge that they knew that

there was a judgment of foreclosure against them and the proposed sale of
10

their home, they did not know that all of the actions taken by lenders,

servicers, attorneys and the court since the 2008 judgment constituted fraud

and ill practices.

The legal issue here, then, is whether actual knowledge that fraud or

ill practices have occurred is required commence the one-year prescriptive

period. Stated differently, is “constructive notice” sufficient to trigger

commencement of the prescriptive period in an action to annul a judgment?

In Alexander v. Centanni, 20-0321 (La. App. 4 Cir. 1/27/21), So.

3d 2021 WL 343404, writ denied, 21-00452 (La. 5/25/21), 316 So. 3d 444,

the plaintiff filed a suit to annul a judgment rendered five years earlier,

claiming that he only learned of the fraud or ill practice within a year of

filing his suit to annul the judgment. The court dismissed the claim on

prescription, stating:

“It is the knowledge of the facts, not knowledge of the
legal consequences of the facts, that ‘commences the running’
of the time period.” Blake v. Blake, 16-1196, p. 19 (La. App. 4
Cir. 9/20/17), 228 So. 3d 223, 236, writ denied, 17-2057 (La.
3/23/18), 239 So. 3d 297. Actual knowledge is not necessary;
“as long as there is constructive notice.” Bayou Fleet, Inc. v.
Bollinger Shipyards, Inc., 15-0487, p. 13 (La. App. 4 Cir.
7/21/16), 197 So. 3d 797, 806. “Knowledge sufficient to start
the running of prescription is ‘constructive knowledge,’ or the
‘acquisition of sufficient information, which, if pursued, will
lead to the true condition of things.’ ” Id. (citation omitted).
“The ultimate issue in determining whether a plaintiff had
constructive knowledge sufficient to commence a prescriptive
period is the reasonableness of the plaintiff’s action or inaction
in light of his education, intelligence, and the nature of the
defendant’s conduct.” Id.

See also: Scott v. Mac-Re, LLC, 16-224 (La. App. 3 Cir. 2/8/17), 211 So. 3d
693.

Similarly, in Ellison v. Ellison, 06-944 (La. App. 1 Cir. 3/23/07), 960

So. 2d 155, the court stated:

11

For the purposes of determining when the one-year period to
bring a nullity action begins to run, the date of discovery of the
fraud or ill practice is the date on which a plaintiff either knew,
or should have known through the exercise of reasonable
diligence, of facts sufficient to excite attention and put the
plaintiff on guard and call for inquiry, and such notice is
tantamount to knowledge or notice of everything to which a
reasonable inquiry may lead. Ellison, 960 So. 2d at 157.

Based on these cases and others, we conclude that La. C.C.P. art.

2004(B), as a matter of law, does not require actual knowledge that the

actions of the lenders/assignees constituted fraud or ill practices to

commence the one-year prescriptive period for an action to annul a

judgment. Constructive knowledge of the facts, not knowledge of the legal

consequences, are sufficient to commence the one-year prescriptive period

for an action to annul a judgment.

Accordingly, we find that the trial court did not commit legal error

when it concluded that prescription began to run on the plaintiffs’ action to

annul the 2016 judgment of foreclosure no later than when the plaintiffs had

notice of the judgment of foreclosure and the impending sheriff’s sale.

Rather than investigate further by perhaps seeking legal advice, they simply

attempted to thwart the proceedings by filing two bankruptcy claims whose

sole purpose was to stop judicial proceedings. This assignment is without

merit.

By their second assignment of error, the plaintiffs allege that the trial

court committed manifest error by finding that the prescriptive period

commenced on an indeterminate date earlier than what was supported by the

law and the testimony. Ms. Bradford testified that she did not know that the

2008 judgment extinguished the Note, but only learned of these problems

after consulting with an attorney less than 30 days before filing the nullity

12

action in 2020. The lenders and loan servicers who claimed to hold the Note

committed fraud on her by leading her to believe the Note was still exigible,

and she worked with the lenders and loan servicers for years prior to the

May 6, 2016, judgment granted on a note that did not exist.

The plaintiffs argue that the trial court’s insistence that they should

have discovered the fraud and ill practices sooner than they did (no later than

August 1, 2016) flies in the face of reality because the attorneys in the prior

foreclosure actions did not discover it, nor did the clerk of court, the various

judges and the sheriff, some of whom are trained in commercial paper.

After it heard the evidence and argument, the trial court concluded

that the prescriptive period began to run for the action to annul, or for any

related claim for any fraud or tort action, when suit was filed on August 1,

2016. It found that when they were sued, the plaintiffs were put on notice

that they needed to “delve into what’s going on.” The court stated: “You’re

definitely put on notice as to, hold on, something is wrong, let me at least

delve into it and find out what’s going on because I’ve been foreclosed upon

four different times.” The court also noted that it could not believe that the

plaintiffs did not know what was going on inasmuch as they filed

bankruptcy twice to stop the sheriff’s sale of the house, “and then claim,

well, I didn’t know anything was going on until I went to an attorney. I

don’t think that’s the case.”

Under the fourth category of contra non valentem, prescription does

not run where the cause of action is not known or reasonably knowable by

the plaintiff, even though this ignorance is not induced by the defendant.3

3
Contra non valentem is a judicially created exception to the general rule of
prescription based on the civilian doctrine of contra non valentem agere nulla currit
13

Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So. 2d 1261. Hence,

prescription does not run against one who is ignorant of facts upon which his

cause of action is based as long as such ignorance is not willful, negligent or

unreasonable. White v. West Carroll Hosp., Inc., 613 So. 2d 150 (La. 1992).

On the other hand, as we noted above, constructive knowledge

sufficient to start the prescriptive period begins when the aggrieved party has

knowledge of the facts sufficient to put him or her on notice of the need for

further inquiry. The ultimate issue in determining whether a plaintiff had

constructive knowledge sufficient to commence a prescriptive period is the

reasonableness of the plaintiff’s action or inaction in light of his education,

intelligence, and the nature of the defendant’s conduct. Alexander v.

Centanni, supra.

After review, we conclude that the record does not support application

of the fourth category of contra non valentem, and we find that the plaintiffs

had constructive knowledge sufficient to commence the prescriptive period

when they were served notice of the Fourth Action that resulted in the May

6, 2016, judgment. The plaintiffs’ claim that they were unaware of the prior

judgments against them is not credible, since they entered into a loan

modification after the First Judgment was obtained against them. This

process was repeated three more times after the First Judgment; yet, the

praescriptio. Rajnowski v. St. Patrick’s Hosp., 564 So. 2d 671 at 674 (La. 1990). The
doctrine suspends the running of prescription in four situations:
(1) Where there was some legal cause which prevented the courts or their officers
from taking cognizance of or acting on the plaintiff’s action;
(2) Where there was some condition coupled with a contract or connected with
the proceedings which prevented the creditor from suing or acting;
(3) Where the debtor himself has done some act effectually to prevent the creditor
from availing himself of his cause of action;
(4) Where the cause of action is not known or reasonably knowable by the
plaintiff, even though his ignorance is not induced by the defendant.
14

plaintiffs apparently never made any payments on the house after 2008.

They contend that they were so confused by the several assignments of the

loan that they simply did not know whom to pay. Thus, it appears that when

the fourth foreclosure began and they were served with notice of the action,

they assumed that once again they would simply ignore the proceedings,

nothing would happen, and they could continue to live in the house without

making payments. When the house came up for sheriff’s sale, they twice

thwarted those proceedings by filing bankruptcy petitions which halted the

sheriff’s sales. When the house was purchased at the sheriff’s sale to one of

the lenders, they still did nothing. It was not until after the property was sold

to a third party, and we suspect at this time they were required to move out

of the house, that they sought the advice of any attorney.

Accordingly, we find no manifest error in the trial court’s finding that

prescription began no later than when the plaintiffs were served with the

petition that resulted in the May 6, 2016, judgment and foreclosure

proceeding. This assignment is without merit.

Finally, by their third assignment of error, the plaintiffs allege that the

trial court committed manifest error and legal error by not confirming the

default judgments as requested.

Following the judgment on the exception of prescription, the plaintiffs

sought to confirm a default judgment against three of the defendants who

apparently did not file a peremptory exception and did not answer the

petition, namely, Stanwich Mortgage Loan Trust Series 2013-7, Residential

Funding Company, LLC, and Homecomings Financial, LLC. The judgment

would cast these defendants, in solido, in judgment for $185,000.00 plus

attorney fees and $498.00 costs, in solido.
15

The matter came up for confirmation on February 1, 2021. In its

ruling the court found that the plaintiffs had not made a prima facie case

entitling them to a default judgment confirmation. It said that the plaintiffs

did not present any evidence as to what these particular defendants did or did

not do to cause them damage. Additionally, the court alluded to the

plaintiffs’ testimony in the prescription proceedings and stated that he did

not find that their testimony was credible and they had not made any

payments on the note from 2008-2019 claiming that they did not know

where to send the payment, which it found was contradictory to their

testimony that they worked with the creditors. The confirmation and relief

sought was denied.

In reviewing default judgments, the appellate court is restricted to

determining the sufficiency of the evidence offered in support of the

judgment. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9

So. 3d 815. This determination is a factual one governed by the manifest

error standard of review. Id.; Alexander v. Rogers Home & Constr., Inc.,

53,663 (La. App. 2 Cir. 1/13/21), 310 So. 3d 303.

Although the defendants are named in the petition, we agree with the

trial court’s conclusion regarding their role in the alleged fraud that would

entitle the defendant to a judgment. We find no manifest error in the trial

court’s finding that the plaintiffs did not make a prima facie case entitling

them to confirmation of a default judgment. This assignment is without

merit.

CONCLUSION

For the foregoing reasons, the judgment sustaining the defendants’

exception of prescription and dismissing the plaintiffs’ petition is affirmed.
16

The ruling denying the plaintiffs’ confirmation of a default judgment is

affirmed.

Appellants are cast for costs of this appeal.

AFFIRMED.

17