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

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-251

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

VERSUS

KAYLA GIVS OGLESBY, ET AL.

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APPEAL FROM THE
TWENTY SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 13-C-1522-C
HONORABLE ALONZO HARRIS

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ELIZABETH A. PICKETT

JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Candyce G. Perret,
Judges.

MOTION TO STRIKE AMENDED MOTION FOR APPEAL GRANTED.

Stephen W. Rider
Herschel C. Adcock, Jr.
Vicki A. Elmer
Natalie White
Jamie Alexandra Bruce
McGlinchey Stafford, PLLC
601 Poydras Street, 12th Floor
New Orleans, LA 70130
(504) 586-1200
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

Kayla Givs Oglesby
801 Duck Ave.
Eunice, LA 70535
DEFENDANT/APPELLANT:
Pro Se

William Oglesby
4120 South Indiana Avenue, Apartment 1013
Chicago, Illinois 60653
DEFENDANT/APPELLEE:
Pro Se

Pickett, Judge.

On April 25, 2019, the 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, filed a Motion to Strike the Amended Motion and Order for

Devolutive Appeal and the Trial Court’s Order on the Amended Motion for

Devolutive Appeal. For the following reasons, we grant the motion to strike.

On April 8, 2013, the plaintiff filed the instant foreclosure action against the

defendant-appellant, Kayla Givs Oglesby. On November 27, 2018, the defendant,

pro se, filed an “Injunction to Arrest the Seizure of Sheriff Sale,” seeking to enjoin

the pending sale of the property subject to foreclosure. The trial court denied the

petition on January 28, 2019. On February 27, 2019, the defendant filed a Motion

and Order for Devolutive Appeal which was granted that same day, setting a return

date of March 28, 2019. This court issued its Notice of Lodging and Briefing

Order on April 1, 2019.

On April 2, 2019, the defendant filed, in the district court, an Amended

Motion and Order for Devolutive Appeal, seeking the suspension of the pending

April 10, 2019 sheriff’s sale of the property. An order granting the motion and

suspending the sheriff’s sale until the resolution of this appeal was signed by the

trial court on April 3, 2019.

The plaintiff argues that the defendant did not notify it of her amended

motion for appeal as required by La.Code Civ.P. art. 1313; thus, the plaintiff was

not provided an opportunity to object to the motion. The plaintiff states that it first

learned of the motion when it received the Amended Notice of Appeal on April 8,

2019.

Next, the plaintiff asserts that the defenses to an executory proceeding and

writ of seizure and sale are set forth in La.Code Civ.P. art. 2642 as follows:

A. Defenses and procedural objections to an executory
proceeding may be asserted either through an injunction
proceeding to arrest the seizure and sale as provided in Articles
2751 through 2754, or a suspensive appeal from the order directing
the issuance of the writ of seizure and sale, or both.

B. A suspensive appeal from an order directing the issuance
of a writ of seizure and sale shall be taken within fifteen days of
service of the notice of seizure as provided in Article 2721. The
appeal is governed by the provisions of Articles 2081 through
2086, 2088 through 2122, and 2124 through 2167, except that the
security therefor shall be for an amount exceeding by one-half the
balance due on the debt secured by the mortgage or privilege
sought to be enforced, including principal, interest to date of the
order of appeal, and attorney fees, but exclusive of court costs.

Pursuant to Article 2642, to enjoin the sheriff’s sale, the plaintiff maintains

that the defendant was required to file a suspensive appeal and post security.

Instead of seeking a suspensive appeal as mandated by Article 2642, more than

five years after the writ of seizure and sale was issued, the defendant filed for

injunctive relief.

Additionally, the plaintiff argues that a devolutive appeal “does not suspend

the effect or the execution of an appealable order or judgment.” La.Code Civ.P.

art. 2087(A). Further, pursuant to La.Code Civ.P. art. 3612, “you cannot have a

suspensive appeal from a judgment refusing to grant a preliminary injunction, for if

there was no injunction issued, there is nothing to suspend. Hibernia National

Bank of New Orleans v. Mary, 167 So.2d 200 (La.App.4th Cir., 1964); Utah-

Louisiana Investment Company v. International Development, Inc., 262 So.2d 553

(La.App.1st Cir.[] 1972).” Murry v. City of Oakdale, 276 So.2d 368, 371 (La.App.

3 Cir.1973).

Louisiana Code of Civil Procedure Article 3612 provides:
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A. There shall be no appeal from an order relating to a
temporary restraining order.
B. An appeal may be taken as a matter of right from an order
or judgment relating to a preliminary or final injunction, but such
an order or judgment shall not be suspended during the pendency
of an appeal unless the court in its discretion so orders.
C. An appeal from an order or judgment relating to a
preliminary injunction must be taken, and any bond required must
be furnished, within fifteen days from the date of the order or
judgment. The court in its discretion may stay further proceedings
until the appeal has been decided.
D. Except as provided in this Article, the procedure for an
appeal from an order or judgment relating to a preliminary or final
injunction shall be as provided in Book III.

The plaintiff argues that the defendant’s Amended Motion and Order for

Devolutive Appeal actually sought a suspensive appeal which is not allowed from

the denial of an injunction. Even if the law allowed a suspensive appeal, the

plaintiff maintains that a suspensive appeal requires the trial court to set security in

an amount exceeding one-half the balance on the debt to be timely posted by the

defendant. La.Code Civ.P. art. 2642. The plaintiff concludes that the defendant’s

motion was contrary to applicable law.

The plaintiff also argues that at the time the defendant filed the motion, the

instant appeal was already lodged in this court; thus, under La.Code Civ.P. art.

2088, jurisdiction was vested in this court. Article 2088 provides:

A. The jurisdiction of the trial court over all matters in the
case reviewable under the appeal is divested, and that of the
appellate court attaches, on the granting of the order of appeal and
the timely filing of the appeal bond, in the case of a suspensive
appeal or on the granting of the order of appeal, in the case of a
devolutive appeal. Thereafter, the trial court has jurisdiction in the
case only over those matters not reviewable under the appeal,
including the right to:

(1) Allow the taking of a deposition, as provided in Article
1433;

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(2) Extend the return day of the appeal, as provided in
Article 2125;

(3) Make, or permit the making of, a written narrative of the
facts of the case, as provided in Article 2131;

(4) Correct any misstatement, irregularity, informality, or
omission of the trial record, as provided in Article 2132;

(5) Test the solvency of the surety on the appeal bond as of
the date of its filing or subsequently, consider objections to the
form, substance, and sufficiency of the appeal bond, and permit the
curing thereof, as provided in Articles 5123, 5124, and 5126;

(6) Grant an appeal to another party;

(7) Execute or give effect to the judgment when its
execution or effect is not suspended by the appeal;

(8) Enter orders permitting the deposit of sums of money
within the meaning of Article 4658 of this Code;

(9) Impose the penalties provided by Article 2126, or
dismiss the appeal, when the appellant fails to timely pay the
estimated costs or the difference between the estimated costs and
the actual costs of the appeal; or

(10) Set and tax costs and expert witness fees.

B. In the case of a suspensive appeal, when the appeal bond
is not timely filed and the suspensive appeal is thereby not
perfected, the trial court maintains jurisdiction to convert the
suspensive appeal to a devolutive appeal, except in an eviction
case.

The plaintiff concludes that the defendant’s motion, as well as her attempt to

improperly convert her devolutive appeal to a suspensive appeal without security,

was untimely.

In opposition, the defendant argues that she filed the motion and followed

the trial court’s procedure with a certificate of service as requested. The defendant

maintains that the clerk of court subsequently mailed out notices to all parties

involved in the case. As such, the defendant moves this court to deny the motion

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to strike and allow the continuation of the suspension of the sheriff’s sale pending

resolution of this appeal.

We find that upon its grant of the defendant’s original Motion and Order for

Devolutive Appeal on February 27, 2019, the trial court was divested of

jurisdiction at the time the defendant’s Amended Motion and Order for Devolutive

Appeal was filed. As such, the trial court was without jurisdiction to consider the

defendant’s motion. Accordingly, we hereby grant the plaintiff’s Motion to Strike

the Amended Motion and Order for Devolutive Appeal, striking the motion and the

trial court’s order granting the motion and suspending the sheriff’s sale of the

property at issue. Defendant’s appeal of the January 28, 2019 judgment will

proceed as a devolutive appeal. The remaining issues raised by the plaintiff are

rendered moot.

MOTION TO STRIKE AMENDED MOTION FOR APPEAL GRANTED.

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