Levier, LLC v. Yolander Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-472

LEVIER, LLC

VS.

YOLANDER THOMAS

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2010-6072
HONORABLE MARK A. JEANSONNE, JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.
AFFIRMED.

Rodney M. Rabalais
P.O. Box 447
Marksville, LA 71351
COUNSEL FOR DEFENDANT-APPELLEE:
Levier, LLC

Yolander Thomas
1728 Ransom Terrace
Fort Worth, TX 76112
PLAINTIFF-APPELLANT:
Pro Se

PAINTER, Judge.

Defendant, Yolander Thomas (Thomas), appeals the trial court’s

decision that a tax sale held without notice to a mortgagee was absolutely

null and granting Plaintiff, Levier, LLC’s (Levier) motion for summary

judgment and declaring Levier to be the owner of the disputed property. For

the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Albert and Lucy Jacobs acquired the property at issue and executed a

mortgage to First Fidelity Mortgage, Inc. (FFM). FFM assigned the

mortgage to Provident Bank (Provident). In April 2001, the property was

sold to Thomas at a municipal tax sale. No notice of the sale was sent to

Provident. Provident foreclosed and bought it in at the subsequent sheriff’s

sale. Levier bought the property from Provident in November 2002.

The property was again sold for unpaid parish taxes in May 2002.

Thomas was listed as the owner, and the property was adjudicated to the

parish. Thomas redeemed the property.

Levier filed suit in December 2010, asking to be declared owner of the

property. Thomas answered and asked the court to quiet her tax title. Levier

and Thomas each filed motions for summary judgment. The trial court

granted Levier’s motion and denied Thomas’s motion. Thomas appeals.

DISCUSSION

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B)
provides that a summary judgment shall be entered “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to material fact, and that mover is
entitled to judgment as a matter of law.” Pursuant to Article
966(C)(2), the moving party bears the burden of proof.

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However, if the moving party will not be required to bear the
burden of proof at trial, he or she is not required to “negate all
essential elements of the adverse party’s claim, action, or
defense, but rather to point out to the court that there is an
absence of factual support sufficient to establish that he will be
able to satisfy his evidentiary burden of proof at trial[.]” Id. In
such an event, there is no genuine issue of material fact. Id. An
appellate court reviews a ruling on a motion for summary
judgment under the de novo standard of review and uses the
same criteria that governed the trial court’s consideration as to
whether summary judgment is appropriate. Gray v. Am. Nat’l
Prop. & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839.

Olson v. Rapides Parish Sheriff & Tax Assessor, 08-1288, p. 4 (La.App. 3

Cir. 4/1/09), 7 So.3d 797, 799-800, writ denied, 09-0982 (La. 10/2/09), 18

So.3d 117.

Notice of Sale

We will first consider Thomas’s assertion that the evidence does not

support the conclusion that Provident did not receive notice of the original

municipal tax sale. Notice to the mortgage holder is required for a valid tax

sale.

In Mennonite Bd. of Missions v. Adams, the Supreme Court
recognized that the sale of property for nonpayment of taxes is an
action affecting a property right protected by the Due Process Clause
of the Fourteenth Amendment. 462 U.S. 791, 800, 103 S.Ct. 2706,
2712, 77 L.Ed.2d 180 (1983). In Mennonite, the mortgagee of a
property contested a tax sale that occurred after the homeowner had
failed to pay her property taxes. 462 U.S. at 794, 103 S.Ct. at 2709.
The mortgagee was not provided notice of the
homeowner/mortgagor’s delinquent payment of the taxes or the
subsequent tax sale. Id. The Supreme Court held that “a mortgagee
possesses a substantial property interest that is significantly affected
by a tax sale” and therefore “is entitled to notice reasonably calculated
to apprise him of a pending tax sale.” Id. at 798, 103 S.Ct. at 2711.
The Supreme Court stated: “Notice by mail or other means as certain
to ensure actual notice is a minimum constitutional precondition to a
proceeding which will adversely affect the liberty or property interests
of any party, whether unlettered or well versed in commercial
practice, if its name and address are reasonably ascertainable.” Id. at
800, 103 S.Ct. at 2712. Because the mortgagee was not afforded its
constitutional right to due process, the Supreme Court reversed the
decision that upheld the tax sale. Id.

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Article VII, Section 25(A) of the Louisiana Constitution of
1974 requires the tax collector to provide notice of the tax
delinquency and the tax sale to all owners of record of any interest in
the property. Lewis v. Succession of Johnson, 05-1192 (La.4/4/06),
925 So.2d 1172; C & C Energy, 09-2160, p. 7, 41 So.3d at 1139.

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 8-9 (La. 7/2/12), 94 So.3d

750, 756 (footnote omitted).

Failure to give notice renders a tax sale an absolute nullity. Lewis v.

Succession of Johnson, 05-1192 (La. 4/4/06), 925 So.2d 1172; Smith v.

Brooks, 97-1338 (La.App. 3 Cir. 4/15/98), 714 So.2d 735, writ not

considered, 98-1869 (La. 10/30/98),723 So.2d 969.

In this case, Provident supported its motion for summary judgment

with the affidavit of Myron G. Gagnard, Clerk for the City of Marksville at

the time of the municipal tax sale. He stated in his affidavit that he was

responsible for processing all notices and publications and for the conduct of

tax sales, including the sale of the Jacobs property; that he did not check the

Avoyelles Parish Clerk of Court records or obtain a mortgage certificate

from the Clerk of Court to determine if there were any liens against the

property; and that he did not send notice of the pending tax sale relative to

the Jacobs property to Provident Bank.

Since no issue of fact remains and the documents introduced in

support of Levier’s motion for summary judgment show that no notice was

sent to Provident, the trial court correctly found that the tax sale was null and

that, as a result, it did not serve to transfer title to Thomas. Further, since no

question of fact remains but that Levier bought the property at a subsequent

sale pursuant to foreclosure, the trial court correctly declared it to be the

owner of the property. Having so found, we pretermit consideration of the

remaining assignments of error.

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CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to Defendant-Appellant, Yolander Thomas.

AFFIRMED.

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