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

NOT DESIGNATED FOR PUBLICATION

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 TUST, 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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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery and Van H. Kyzar, Judges.

MOTION TO DISMISS SHERIFF SALE DENIED.

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 Avenue
Eunice, LA 70535
DEFENDANT/APPELLANT:
Pro Se

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

COOKS, Judge.

On June 4, 2019, Defendant-Appellant, Kayla Givs Oglesby, pro se, filed an

Emergency Motion to Dismiss Sheriff Sale July 10 Due to Expired Foreclosure

Petition. Plaintiff-Appellee, US Bank, N.A. as Trustee Successor by Merger to

First Star Bank, N.A., as Trustee for New Center Home Equity Loan Trust, Series

2001-NC1, opposes Defendant’s motion. For the following reasons, we deny the

motion.

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

Defendant. The trial court issued an Order of Seizure and Sale of the Property on

April 10, 2013. A sheriff’s sale was scheduled for June 26, 2013, but the sale did

not take place. The sale was scheduled, again, more than five years later, to be

held on December 5, 2018.

On November 27, 2018, Defendant, pro se, filed an “Injunction to Arrest the

Seizure 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, 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 May 9, 2019,

Plaintiff filed a motion to dismiss the appeal as untimely and a motion to suspend

briefing. The motion to dismiss was denied on June 19, 2019, rendering moot the

motion to suspend briefing.

In Defendant’s motion to dismiss the July 10, 2019 sheriff sale, she notes

that Plaintiff rescheduled the date for a sheriff’s sale of the property at issue

following this court’s May 15, 2019 ruling which granted Plaintiff’s Motion to

Strike Amended Motion for Appeal. In granting the motion, this court concluded:

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.
US Bank v. Oglesby, 19-251 (5/1519), ___ So.3d ___, ___.
In her motion, Defendant asserts that seeking relief in the trial court is

impractical due to the trial court’s failure to afford her the relief requested. She

states that she was not given a fair trial and that the trial court erred in ruling on the

evidence and law. Defendant also maintains that the trial court was given a

reasonable opportunity to correct the error. Further, Defendant complains that the

evidence she presented to the trial court which proved that Plaintiff was not the

owner of the note and did not have legal standing to foreclose on an “outdated

petition” was not taken into consideration by the trial court.

In support of her motion, Defendant cites Countrywide Home Loans, Inc. v.

Estate of Rowe, 51,489 (La.App. 2 Cir. 6/21/17), 224 So.3d 1152, for the premise

that there is no exception for an executory proceeding in the instant case wherein

the “expired petition” was dismissed by the trial court. Defendant requests that

this court dismiss Plaintiff’s attempt to enforce “an expired foreclosure petition for

abandonment.”

In opposition, Plaintiff argues that Defendant now attempts to improperly

convert her devolutive appeal to a suspensive appeal by asking this court to dismiss

the sheriff sale set for July 10, 2019. A devolutive appeal, Plaintiff maintains,

“does not suspend the effect or the execution of an appealable order of judgment.”
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La.Code Civ.P. art. 2087(A). Further, Plaintiff asserts that when Defendant was

served with the writ of seizure and sale, she chose to seek an injunction rather than

timely seeking a suspensive appeal, running the risk of the property being sold

while a devolutive appeal is pending.

In light of Defendant’s devolutive appeal presently pending in this court, we

find that Defendant is not entitled to the relief sought. Accordingly, we deny

Defendant’s motion.

MOTION TO DISMISS SHERIFF SALE DENIED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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