U. S. Bank Trust National Association, as Trustee of the Igloo Series III Trust v. John Timothy Duane Guidry and Sharone Renee Davis Guidry A/K/A Sharone Davis Guidry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-120

U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE OF THE IGLOO SERIES III TRUST

VERSUS

JOHN TIMOTHY DUANE GUIDRY

AND SHARONE RENEE DAVIS GUIDRY

A/K/A SHARONE DAVIS GUIDRY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 200911048
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W. Perry,
Judges.

REVERSED AND REMANDED.

Trent John Gauthier
Attorney at Law
115 West Main Street, Suite 19
Lafayette, LA 70501
(337) 290-1806
COUNSEL FOR DEFENDANTS/PLAINTIFFS/APPELLANTS:
John Timothy Duane Guidry
Sharone Davis Guidry

Jason R. Smith
Dean Morris, L.L.C.
P. O. Box 2867
Monroe, LA 71207
(318) 388-1440
COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE:
U.S. Bank Trust National Association, as Trustee
of the Igloo Series III Trust

Christopher D. Meyer
Burr & Forman, LLP
190 East Capitol Street, Suite M-100
Jackson, MS 39201
(601) 355-3434
COUNSEL FOR PLAINTIFF/DEFENDANT/APPELLEE:
Wells Fargo Bank, N.A.

GREMILLION, Judge.

Appellants, John Timothy Duane Guidry and Sharone Renee Davis Guidry,

appeal the trial court’s dismissal of their petition to annul executory proceedings and

for temporary and permanent injunctions against U.S. Bank National Association,

as Trustee of the Igloo Series III Trust (USB) and Wells Fargo, NA, in connection

with a seizure and sale by the Acadia Parish Sheriff. For the reasons that follow, we

reverse and remand to the trial court for proceedings consistent with this opinion.

FACTS

On March 15, 2007, John Timothy Duane Guidry executed a promissory note

in favor of Magnolia Mortgage, Inc., for the amount of $53,000.00. He and Sharone

Guidry also granted a mortgage over immovable property in Acadia Parish, which

is described as:

That certain lot or parcel of ground, together with all improvements
thereon and thereunto belonging, situated in Acadia Parish, Louisiana,
being known and designated LOT THIRTY-ONE (31) of MURRELL
ADDITION TO THE TOWN OF CHURCH POINT, said property
having a frontage of 66.6 feet, more or less, on Melissa Street, with the
further dimensions, boundaries, shape, form, location and configuration
as shown on that certain plat of survey of said subdivision dated March
23, 1965, prepared by C. W. Lyman, Consulting Engineer attached to
that act recorded under Entry No. 352578, of the records of Acadia
Parish Clerk of Court; subject to restrictions, servitudes, rights-of-way
and outstanding mineral rights of record affecting the property.

Being the same property acquired by Gene Kuntz from John [T]ommy
Guidry Sr. and Debra Ann Guidry by that Act of Sheriffs Deed dated
May 8, 2002 and recorded May 31, 2002 under Entry No. 699949 of
the records of Acadia Parish, Louisiana.

On September 22, 2009, Wells Fargo Bank, NA, filed an action for executory

process for the seizure and sale of the above described property. A succession of

Acadia Parish Sheriffs seized the property three times: on October 5, 2009, July 26,

2010, and April 9, 2018.1 In the interim, USB was substituted as plaintiff for Wells

Fargo. On May 30, 2018, the property was sold by the Acadia Parish Sheriff. The

record reflects that notices of the impending sale directed to John Timothy Duane

Guidry and Sharone Renee Davis Guidry a/k/a Sharone Davis Guidry had been

personally served on “John T. Guidry” on April 10, 2018.

On July 12,2018, the Guidrys filed a “PETITION TO ANNUL EXECUTORY

PROCEEDINGS AND JUDICIAL SALE, FOR TEMPORARY RESTRAINING

ORDER, INJUNCTIVE RELIEF FOR WRONGFUL SEIZURE DAMAGES,

ATTORNEY FEES, COSTS.” The petition alleged that the original filing for

executory process by Wells Fargo omitted the promissory note. According to the

Guidrys, at the time the writ of seizure and sale was issued in 2018, they were in the

process of negotiating a loan modification agreement with BSI Financial Services, a

duly-authorized representative of USB; in spite of this, USB moved ahead with the

seizure and sale, which the Guidrys allege indicates that USB was not acting in good

faith. Mr. Guidry denied that he had been served at all. Lastly, Mrs. Guidry asserted

that she was never served with the petition for executory process. Both Guidrys

denied that they were served with the notice of seizure and sale. The petition prayed

for a temporary restraining order, preliminary and permanent injunctive relief, and

damages for wrongful seizure, including attorney fees and costs.

Wells Fargo and USB filed “responses” that asserted that the Guidrys

improperly utilized summary proceedings and were required to file a petition in a

separate ordinary proceeding. The Guidrys countered that they did file a petition

and that filing same in a separate proceeding amounts to a vain and useless act

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It has been asserted that the delays were necessitated by the filing of five bankruptcy
proceedings by the Guidrys. This is not corroborated by the record but is confirmed by counsel
for the Guidrys in a memorandum.
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because the two matters would have to be consolidated. Wells Fargo also argued

that it had no interest in the suit because USB had been substituted as plaintiff.

The trial court heard the requests for dismissal by Wells Fargo and USB. The

original note, the trial court found, was in the suit record, which was introduced into

evidence by the Guidrys. The service returns were also noted by the trial court.

Based upon these facts, the trial court dismissed the Guidrys’ demands.

The Guidrys then perfected this appeal and assert one assignment of error, the

trial court’s dismissal of their action via summary proceeding.

DISCUSSION AND ANALYSIS

This suit originated as an executory proceeding. “Executory proceedings are

those which are used to effect the seizure and sale of property, without previous

citation and judgment, to enforce a mortgage or privilege thereon evidenced by an

authentic act importing a confession of judgment, and in other cases allowed by law.”

La.Code Civ.P. art. 2631. “[Executory process’s] procedural bases are the debtor’s

confession of judgment before a notary public and two witnesses; supporting

authentic evidence; and a determination by a judge that the submissions are adequate

for the seizure and sale of the encumbered property to satisfy the debt.” Buckner v.

Carmack, 272 So.2d 326, 329 (La.1973). “Executory process, of course, is a harsh

remedy and a party employing same must strictly comply with the requirements for

its use set forth in LSA-C.C.P. Art. 2631 et seq.” Commercial Credit Corp. v. Nolan,

385 So.2d 1246, 1248 (La.App. 3 Cir.1980).

However, pursuant to Louisiana Revised Statutes 13:4112, once the sheriff

has filed the proces verbal of the sale or filed the sale for recordation, actions to

annul or set aside the sale by executory process are barred when the basis is “any

objection to form or procedure in the executory proceedings, or by reason of the

lack of authentic evidence to support the order and seizure[.]” After the Acadia
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Parish Sheriff filed the proces verbal, the Guidrys were barred from raising

objections such as form or procedure or lack of authentic evidence.

In Nolan, the plaintiff filed an executory proceeding to seize and sell a mobile

home that secured a chattel mortgage. The mobile home was seized. Within a month

of the seizure, the Nolans filed a petition to enjoin the seizure and sale because the

debt installment had actually been paid. This petition also prayed for damages and

attorney fees. The trial court ruled in favor of the Nolans. Commercial Credit did

not contest the propriety of filing the Nolans’ petition in the executory proceeding.

The Louisiana Code of Civil Procedure allows for the conversion of an

executory proceeding to an ordinary proceeding in two instances. Pursuant to

Article 2644, the plaintiff in an executory proceeding may convert it to an ordinary

proceeding by filing an amended petition asking that the defendant be cited and

served and praying for judgment on the obligation. Article 2772 allows the

conversion of an executory proceeding to an ordinary proceeding when the creditor

seeks a deficiency judgment after the thing is seized and sold.

The Guidrys argue that the “responses” filed by USB and Wells Fargo amount

to summary proceedings that may not be used to dispense with an ordinary

proceeding. USB argues that the Guidrys improperly asserted a demand for damages

in an executory proceeding.

We will address the Guidrys’ contention first. A “response” is not a pleading

recognized in the Louisiana Code of Civil Procedure. Those are petitions, answers,

exceptions, and written motions. La.Code Civ.P. art. 852. From a purely technical

perspective, the appropriate pleading would have been an exception or written

motion; however, the substance of a pleading and not its caption determines its

nature. Barber v. Jefferson, 17-72 (La.App. 3 Cir. 5/17/17), 221 So.3d 264.

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The response of USB asserted that the Guidrys were improperly using an

executory proceeding to assert a claim for damages. The substance of the USB

response will be treated as a dilatory exception of unauthorized use of an executory

proceeding and improper cumulation of actions. See La.Code Civ.P. art. 926.

In Nationstar Mortgage, LLC v. Schales, 18-439 (La.App. 3 Cir. 12/12/18),

261 So.3d 912, a mortgagee filed properly authenticated and verified executory

proceedings to foreclose on defendant’s home. The trial court found that the

mortgagee was entitled to a writ of seizure and sale. The property was seized.

Thereafter, the mortgagor filed a petition for a preliminary injunction, restraining

order, and a reconventional demand for damages against the mortgagee. The

mortgagee filed exceptions of unauthorized use of summary and executory

proceedings, improper cumulation of actions, no cause of action, and prescription.

The trial court granted the mortgagee’s exception, and the mortgagor appealed.

This court noted that the demand for damages is actually an incidental demand

in response to the principal demand for executory process. According to La.Code

Civ.P. art. 1036(B), “[t]he mode of procedure employed in the incidental action shall

be the same as that used in the principal action, except as provided by law.” On this

basis, we affirmed the trial court’s grant of the exception of improper use of

executory proceedings. Similarly, we affirmed the trial court’s maintenance of the

exception of improper cumulation of actions. We reversed the trial court’s grant of

the exception of no cause of action. We ordered that the improperly cumulated

actions be severed from the executory proceeding, assigned a new docket number or

that the mortgagor be ordered to amend his pleading to conform to proper procedure.

We find that the Nationstar approach is the appropriate resolution to the

present matter. The trial court did not err in maintaining USB’s exceptions; rather,

it erred in dismissing the Guidrys’ demands. Therefore, we reverse the trial court’s
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dismissal of the Guidrys’ demands and remand the matter to the trial court for the

entry of an order that severs the Guidrys’ “petition” from the executory proceeding

and assigns it a new docket number so that it can proceed as an ordinary action.

The costs of this appeal are assessed equally between the Guidrys and the

defendants.

REVERSED AND REMANDED.

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