Bell Family Trust v. Vermilion Parish Clerk of Court

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-573

BELL FAMILY TRUST

VERSUS

VERMILION PARISH CLERK OF COURT, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 108946-I
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of Sylvia R. Cooks, Chief Judge, Shannon J. Gremillion, and D.
Kent Savoie, Judges.

MOTION TO STRIKE DENIED;
AFFIRMED.

Gregory Russel Mier
Attorney at Law
2205 W Pinhook Rd, Ste 103A
Lafayette, LA 70508
(337) 534-0245
COUNSEL FOR PLAINTIFF/APPELLEE:
Bell Family Trust

Mary Susan Bell
In Proper Person
101 Chateau Place
Lafayette, LA 70503
DEFENDANT/APPELLANT

SAVOIE, Judge.

Appellant, Mary Susan Bell (“Ms. Bell”), appearing pro se, appeals a

summary judgment rendered in favor of the Bell Family Trust (“the Trust”) that

cancelled a 1997 mortgage and a July 6, 2015 reinscription of that mortgage, as

well as awarded the Trust with attorney fees and costs. For the following reasons

we affirm.

We further note that, in its appellee brief, the Trust asks us to award it with

additional attorney fees incurred on the appeal; however, because the Trust failed

to timely answer Ms. Bell’s appeal, we will not address the Trust’s requested relief.

See, Charles v. LeBlanc, 93-871 (La.App. 3 Cir. 3/2/94), 633 So.2d 866, writ

denied, 94-1314 (La. 9/2/94), 643 So.2d 148.

Factual and Procedural Background

Wilfred Bell (“Mr. Bell”) (now deceased) created the Trust in October 1996.

The beneficiaries of the Trust are his six children, including Ms. Bell, as well as

his children’s descendants. Ms. Bell was initially the trustee of the Trust, but no

longer holds that capacity.

In October 1996, Mr. Bell donated several tracts of immovable property to

the Trust, including his home and surrounding one-acre tract of land (“the

Property”), which is at issue here.1 This one-acre tract was transferred to the Trust

1
The Property is described as follows in the Act of Donation:

A certain parcel of land measuring 1 square acre, including all buildings,
improvements and personal movables located thereon; the center of said 1 square
acre parcel being located at the center of the Donor’s personal residence situated
on that certain parcel of land containing 103.50 acres, more or less, situated in the
Eastern portion of the Northeast Quarter of Section 19, Township 11 South,
Range 2 East, Vermilion Parish, Louisiana, being bound now or formally as
follows: North by Leonce Schexnider, Harold J. Broussard and C. Dulva
Thibodeaux; East by Verga Adams Mouton, South by lands of Donor described as
Tract 2; West by lands of Donor described as Tract 3, this being the Donor’s
personal residence, along with a twenty foot right of way for purposes of a

via an October 1996 Act of Donation, but the donation was not recorded until April

2000. The Act of Donation was signed by Mr. Bell as the donor, and Ms. Bell

accepted and signed the donation as the duly appointed trustee of the Trust. The

Act of Donation was also signed by two witnesses and a notary, and, therefore, it

was in authentic form.

Shortly after Mr. Bell donated the Property to the Trust, he signed a

promissory note agreeing to pay $40,000.00 he allegedly owed to Ms. Bell. The

debt was secured by a mortgage (“the Mortgage”) in favor of Ms. Bell that

encumbered the Property. Mr. Bell signed the promissory note and Mortgage on

March 12, 1997, and the Mortgage was recorded in the Vermilion Parish records

on March 13, 1997, under entry number 790331.

On August 30, 2001, a Dation En Paiment (“the Dation”) was entered into

between the Trust and Sue Bell Holdings, LLC (“the LLC”). Ms. Bell signed the

document both as trustee on behalf of the Trust and as the “general manager” of

the LLC. The Dation transferred various Trust assets to the LLC, including the

Property, and released the Trust from debt allegedly owed to the LLC, including

the $40,000.00 promissory note.2

In March 2002, Ms. Bell, on behalf of the Trust, filed a voluntary petition

for relief under Chapter 7 of the Bankruptcy Code. See In re Bell Family Trust,

02-50477, 02-5045 (Bankr. W.D.La. 2005), 350 B.R. 700. The bankruptcy

proceeding evolved into an adversarial proceeding, with the bankruptcy trustee

alleging various counts of recovery against Ms. Bell, including claims for multiple

driveway beginning at the front of Donor’s personal residence and extending to W.
Bell Road.
2
It is unclear from the record how the promissory note became an obligation of the Trust.

2

breaches of fiduciary duty. The bankruptcy trustee further sought to reverse the

property transfers occasioned by the Dation, alleging that they violated and/or were

invalid under federal and Louisiana law.

The bankruptcy court, in In Re Bell Family Trust, 350 B.R. at pp. 702-704,

provided the following additional background information:

On June 19, 2001, Wilfred Bell was interdicted through
proceedings initiated by Ms. Bell.

....

Up until 2001, Ms. Bell had made distributions to the
beneficiaries, including herself. Some time in the summer of 2001,
however, those distributions stopped[,] causing inquiries from the
other beneficiaries. The beneficiaries were unable to obtain
information from Ms. Bell so a group of them hired attorney Glenn
Marcantel to investigate. Mr. Marcantel made an informal written
request for information and an accounting on July 31, 2001. This
request was answered by Stan Gauthier who indicated that he was the
attorney for Ms. Bell as trustee of the Trust. . . . An accounting was
not provided until March 28, 2002, with a corrected accounting
subsequently provided on May 8, 2002.

During the time that the beneficiaries were attempting to obtain
an accounting, Ms. Bell . . . . started preparing an invoice to
retroactively bill the Trust for her services. . . claiming a total
indebtedness due her from the Trust in the amount of $330,151.60.

On August 21, 2001, Ms. Bell formed the LLC, and on August
30, 2001, Mr. Gauthier prepared a Dation En Paiment and
Termination of Trust (“Dation”). The Dation was signed by Ms. Bell
as trustee of the Trust and as agent for the LLC. In addition, an Act of
Exchange was executed whereby Ms. Bell transferred her alleged
claim for compensation to the LLC.

The Dation terminated the Trust as to Ms. Bell, and,
purportedly to distribute her interest in the Trust, transferred the
following Trust assets to the LLC: (1) 185 of the 228 acres, (2) 100%
of the mineral rights for all the acreage, and (3) miscellaneous assets
including a $16,000 note from Nedia Bell, the Bell family home and
one acre and some co-op stock.

. . . . On March 4, 2002, Ms. Bell filed a voluntary petition in
bankruptcy on behalf of the Trust. The accounting was eventually
provided after the bankruptcy filing.

3

This action was filed by Mr. Sandoz, the bankruptcy Trustee,
alleging five separate grounds of recovery against Ms. Bell and Ms.
Bell Holdings, LLC. . . .

....

. . . . On August 8, 2003, the court entered Reasons for Decision
granting [Ms. Bell’s] motion [for summary judgment] in part holding
that (1) the Trustee cannot seek to avoid any transfers based upon any
finding of a breach of fiduciary duty, concluding that the remedy is
damages; and (2) the Trustee cannot seek to avoid as preferential
transfers, any retainers paid by the Trust to Ms. Bell more than one
year prior to the bankruptcy filing. In all other respects, the first
motion for summary judgment was denied.

Counsel for Ms. Bell was directed to submit an order on the
Reasons for Decision. There was some dispute regarding the language
of the order and . . . . [o]n May 18, 2004, the court took the Motion for
Reconsideration under advisement.

. . . . On December 16, 2003, the court entered an order granting
[Ms. Bell’s] second motion [for summary judgment] in part and
dismissing all causes of action which related to insolvency.

On January 15, 2004, Ms. Bell filed a Motion to Remove
Trustee and Disqualify Trustee’s Attorney. That motion was denied
on January 21, 2004, at which time the court reserved the right of the
Trustee to seek sanctions and costs for the filing of the motion. The
court deferred that issue until after the trial. The trial in this matter
was held over four days in February 2004.

After trial, the bankruptcy judge rendered Reasons for Decision on June 21,

2005, finding that “Ms. Bell breached her fiduciary duties in numerous manners.”

Id. at 705. As a result of that finding, it awarded the Trust with various sums that

had been transferred via the Dation, expenses unrelated to the Trust that had been

paid by Ms. Bell, income that Ms. Bell had received following the Dation, and

money that had been deposited into the court’s registry. Id.

In addition, the bankruptcy judge found that setting aside the Dation and

returning the transferred property to the Trust was proper under La.R.S. 9:2221,

stating “[w]ithout question, avoiding the transfer is the only appropriate method for

4

satisfying the provision of La. R.S. 9:2221 requiring a trustee to redress a breach of

trust.” Id. at 707. The bankruptcy judge further found that the Trust was entitled to

avoid the transfers occasioned by the Dation because the requirements of both 11

U.S.C.A. §548(a)(1)(B)(i)(I), and (II) were satisfied. 3 Id. The ruling further

directed counsel to submit a proposed judgment in conformity with the ruling.

On August 1, 2005, the bankruptcy court rendered a judgment in favor of the

Trust and against Ms. Bell, that, inter alia, awarded the Trust with various sums,

together with interest, in accordance with its Reasons for Ruling. The judgment

also awarded the Trust with property that was previously transferred from the Trust

by the Dation, including the Property at issue herein, as well as the $40,000.00

debt allegedly owed by Mr. Bell, as evidenced by the 1997 promissory note.

The United States Court of Appeals, Fifth Circuit, affirmed the bankruptcy

judgment, with one modification to correct a calculation in the amount of money

3
With respect to this finding, the bankruptcy court, Id. at 707-08, stated as follows:

Pursuant to these provisions [11 U.S.C.A. 548(a)(1)(B)(i)(I), and (II)],
insolvency is not an issue. The court has already found that the Debtor did not
receive a reasonably equivalent value for the Dation. Therefore, the only issues
are whether the transfer left the Debtor with an unreasonably small capital for its
ongoing business and/or whether the Debtor intended to incur or believed it would
incur debts that would be beyond its ability to pay.

The first issue is to determine the business of the Debtor. The court
previously held that the business of the Trust was mineral exploration and farming.
By virtue of the Dation, the mineral interests were removed, thus eliminating that
income from the Trust. In addition, since the property containing the water well
was transferred to Ms. Bell, the Trust's ability to generate farm income was
severely curtailed if not eliminated. The experts for both parties testified that it
would not be feasible to drill a well on the remaining acreage. Although Ms. Bell
proposed that the Trust could borrow money against the remaining property in
order to fund ongoing farm expenses and pay its debts, Ms. Bell had been unable
to obtain such a loan prior to the Dation.

With regard to paying its debts as they became due, Ms. Bell testified that
the assets of the Trust were diminishing even prior to the Dation and she did not
believe that the Trust had sufficient income to meet its ongoing expenses.

5

owed, which is irrelevant to the instant case. In re Bell Family Trust, 251

Fed.Appx. 864 (5th Cir. 2007).

On November 9, 2005, the bankruptcy court, pursuant to a motion under

Fed.R.Bankr.P. 7070, rendered a judgment that, inter alia, specifically divested

title of the Property from Mary Susan Bell, a/k/a Sue Bell and Sue Bell Holdings,

LLC, and vested title of the Property in the Bell Family Trust.

A final decree in the bankruptcy proceeding was entered on February 14,

2012. Ms. Bell thereafter sought to reopen the bankruptcy case so that she could

file a motion under Fed.R.Civ.P. 60 to vacate all prior orders and dismiss the case

for lack of jurisdiction. Ms. Bell argued that the Trust was a spendthrift trust,

rather than a business trust eligible for relief under Chapter 7. The bankruptcy

judge denied her motion, noting a final June 2002 judgment in the bankruptcy

proceeding finding that the Trust was a business trust, rather than a spendthrift

trust. Ms. Bell appealed to the federal district court, and further sought to recuse

the bankruptcy judge because she had filed a complaint of judicial misconduct

against him. See Bell v. Bell Family Trust, 6:13-CV-00639 (W.D.La. Sept. 16,

2013), 2013 WL 9805802.

In its September 16, 2013 Report and Recommendation, not only did the

magistrate judge for the federal district court affirm the bankruptcy court’s ruling

and deny the additional relief sought by Ms. Bell, it went on to recommend that Ms.

Bell “be ordered to file no more frivolous, burdensome, and vexatious pleadings

with this Court.” Bell v. Bell Family Trust, 6:13-CV-00639, p. 1 (W.D.La. Sept.

16, 2013), 2013 WL 9805802. The magistrate judge further stated as follows:

The undersigned finds that this appeal is not only without merit,
but is also frivolous. At the hearing held on February 2, 2010, in

6

Docket Nos. 09-1980, 09-1984 and 09-1985[ 4 ], Judge Hanna
cautioned Bell that she could be subject to sanctions pursuant to
Fed.R.Civ.P. Rule 11 for filing frivolous pleadings. Despite this
warning, Bell has continued to file frivolous, burdensome, and
vexatious pleadings with this Court.

....

Here, Bell has filed at least four other actions in this Court
which were found to be groundless. Now, Bell has appealed an issue
decided by the Bankruptcy Court in 2002, which she clearly could
have brought in one of these previous filings. Additionally, it was Bell,
herself who filed and signed the pleadings asserting that the trust at
issue was a business trust. In this appeal, she takes a position entirely
contrary to he[r] own original assertions.

In its most recent ruling, the Bankruptcy Court found that . . .
its June 2002 ruling that the debtor was a business trust was
dispositive of Bell’s new argument that it was in fact a spendthrift
trust. Thus, this appeal was taken in the face of the clear,
unambiguous, dispositive holding of the Bankruptcy Court and is
patently frivolous. Capps, 782 F.2d at 1343. See also Corpus Christi
Taxpayer’s Ass'n v. City of Corpus Christi, Tex., 858 F.2d 973, 974
(5th Cir.1988).
The undersigned spent a significant amount of time parsing
through the morass of Bell’s voluminous, rambling, and unintelligible
pleadings, which proved to be a substantial waste of time and
resources. They contain a “hodgepodge of unsupported assertions,
irrelevant platitudes, and legalistic gibberish.” Crain v. C.I.R., 737
F.2d 1417, 1418 (5th Cir.1984). . . .

....

Nevertheless, Bell has had multiple bites at the apple, none of
which proved fruitful, and her latest attempt likewise lacks merit. In
light of the copious, frivolous, burdensome, and vexatious pleadings
4
With respect to these docket numbers, the magistrate judge explained:

On November 30, 2009, even though the automatic bankruptcy stay was in
place, Bell filed a 219-page complaint with exhibits in this Court against the
bankruptcy trustee and the law firm and attorneys representing the Trust alleging
RICO violations. Docket No. 09-1980. On the same date, she filed another 155-
page complaint with exhibits alleging RICO violations against these same
defendants. Docket No. 09-1984. In addition, she filed a 239-page complaint with
exhibits alleging “libel, slander, defamation, fraud, tort crimes” against the same
law firm and attorneys, as well as six individual defendants. Docket No. 09-1985.
Following a hearing before Magistrate Judge Hanna, all of these complaints were
voluntarily dismissed by Bell on February 5, 2010.

Id.

7

Bell has filed with this Court, the undersigned recommends the Court
instruct Bell to refrain from instituting any further actions against the
Defendant herein or its counsel or the bankruptcy judges based on any
matters set forth in her Appeal at bar lest she be ordered to appear and
show cause why she should not be held in contempt of court.

Id. at pp. 5-6.

On October 11, 2013, the federal district judge adopted the magistrate

judge’s Report and Recommendation and further ordered Ms. Bell “to refrain from

instituting any further actions against the Defendant herein or its counsel or the

bankruptcy judges based on any matters set forth in her Appeal at bar lest she be

ordered to appear and show cause why she should not be held in contempt of court.”

Bell v. Bell Family Trust, 6:13-CV-00639, p. 1 (W.D.La. Oct. 11, 2013), 2013 WL

9805803.

The federal district court’s October 11, 2013 ruling was thereafter affirmed

by the U.S. Court of Appeals, Fifth Circuit on July 8, 2014. In re Bell Family

Trust, 575 Fed.Appx. 229 (5th Cir. 2014). Therein, the court warned Ms. Bell that

“any further frivolous or abusive filings in this Court, the district court, or the

bankruptcy court will invite the imposition of sanctions, including dismissal,

monetary sanctions, and/or restrictions on her ability to file pleadings in this Court

and any court subject to this Court’s jurisdiction.” Id. at 233.

On December 8, 2014, the Supreme Court of the United States issued a

ruling denying a “Motion to direct the Clerk to file a petition for writ of certiorari

out of time.” Bell v. Bell Family Trust, 547 U.S. 1046, 135 S.Ct. 722 (2014).

On July 6, 2015, Ms. Bell signed a Notice of Reinscription (“the

Reinscription”), which reinscribed the original 1997 Mortgage signed by Mr. Bell

in favor of Ms. Bell dated March 13, 1997. The Reinscription was recorded in the

Vermilion Parish records on July 6, 2015, under entry number 2015006862-MO.

8

Meanwhile, in February 2017, the Trust, through its current trustee, Gregory

Mier, began trying to sell the Property at issue. On September 23, 2020, the Trust

entered into a purchase agreement with a potential buyer. However, a title

examination revealed the 2015 Reinscription of the 1997 Mortgage as a cloud on

the title of the Property, and the potential buyers ultimately withdrew from the sale.

On November 4, 2020, Mr. Mier, as Trustee on behalf of the Trust, sent a

certified letter to Ms. Bell advising her that the Mortgage and Reinscription have

no legal effect on the Property and requesting her to cancel those recordings. Ms.

Bell received the letter and responded in writing.

Following Ms. Bell’s failure to cancel the Mortgage and Reinscription

within thirty days of the Trust’s certified letter, the Trust filed a Petition for

Cancellation of Mortgage on December 8, 2020, in Louisiana district court. The

petition sought to cancel the Mortgage and Reinscription, as well as assess costs

and attorney fees against Ms. Bell in accordance with La.R.S. 9:5176. Ms. Bell,

appearing pro se, then filed an answer on December 28, 2020.5

On January 13, 2021, the Trust filed a Motion for Summary Judgment

seeking cancellation of the Mortgage and Reinscription, given the undisputed

material facts, including the 1996 Act of Donation transferring the Property to the

Trust and the 2005 bankruptcy court judgments. In support thereof, the Trust

5
We note that Ms. Bell’s answer, as well as other pleadings she filed in the state court
action, and her appellate brief, do not fall far from “the voluminous, rambling, and unintelligible
pleadings” filed in the federal court proceedings over which federal court judges expressed
concern. See Bell v. Bell Family Trust, 6:13-CV-00639, p. 1 (W.D.La. Sept. 16, 2013), 2013 WL
9805802. We further note that while Ms. Bell’s answer, which contains a “hodgepodge of
unsupported assertions, irrelevant platitudes, and legalistic gibberish,” Id., also provides several
unintelligible paragraphs labeled as “counterclaims”, it does not appear from the record that any
incidental demands have been served or otherwise properly joined to this action. See La.Code
Civ.P. arts. 1032, 1063 and 1314; See also, Oscar Daste and Sons, Inc. v. Dobard, 516 So.2d
1331 (La.App. 1 Cir. 1987). The only issue properly before this court is the Trust’s Motion for
Summary Judgement that sought to cancel the Mortgage and Reinscription.

9

submitted as exhibits certified copies of the 1996 Trust Instrument and Acts of

Donation, the 1997 Mortgage, the 2001 Dation, the 2005 rulings and judgments

from the bankruptcy court and federal district court, the 2013 and 2014 rulings

from the federal district court and U.S. fifth circuit court of appeals concerning Ms.

Bell’s attempt to reopen the bankruptcy proceedings, the 2015 Reinscription, the

buy/sell agreement between the Trust and potential buyers, the Affidavit of Donald

Bazer, who completed a title examination of the Property, and the Affidavit of Mr.

Mier.

In response, Ms. Bell filed a “Motion and Memorandum to Dismiss Sham

Motion for Summary Judgment as ‘Purportedly’ Filed by the Bell Family Trust,”

which was considered as an opposition to the Trust’s Motion for Summary

Judgment. Ms. Bell’s “Motion” contains pages of largely unintelligible arguments

that attempt to attack validity of the underlying bankruptcy judgments at issue. Ms.

Bell suggests in her “Motion” that the bankruptcy court wrongfully transferred the

Property at issue to the Trust. She further takes issue with the fact that the Motion

for Summary Judgment was filed despite her request for a jury trial. In her

conclusion, she argues that summary judgment is impermissible because the

motion:

is alleged to have been drafted by [Jeffrey] Ackermann[6] who is not
an attorney of record in this case. This Motion for Summary
Judgment is ‘not’ based in facts, instead relies on a judgment drafted
by Ackermann which is a fraudulent violation of the Bankruptcy
Courts Rulings and Reasons for Decision.

6
Mr. Jeffery Ackerman was counsel for the bankruptcy trustee in connection with the
federal bankruptcy proceedings discussed herein.

10

In support of her “Motion,” Ms. Bell attached various documents including

what appear to be excerpts from the bankruptcy court and federal court records but

the context of those excerpts is otherwise unidentifiable.

A hearing on the Trust’s Motion for Summary Judgment was held on March

22, 2021. After hearing argument, including Ms. Bell’s argument concerning

alleged “fraud” by attorney Ackermann in obtaining the bankruptcy court

judgments, the Louisiana district court judge granted the Trust’s motion. The

judge further repeatedly explained to Ms. Bell the impropriety of her attempts to

invalidate a bankruptcy court judgment in connection with the proceedings before

him, stating:

I saw everything you sent, but it’s not enough. It’s not enough
to - - in my mind, it’s clear that the Motion for Summary Judgment is
proper. The allegations you allege are not in this court. You talk
about fraud. Fraud is when the court is in the matter in which is
before the Court. That’s not what’s before [this] Court, the fraud that
you allege in a bankruptcy judgment and those things.

....

Ms. Bell, I’m not going to let you go - - I let you talk for a
while. I read all the stuff you sent. And you don’t understand what
I’m saying, obviously. All those allegations you make are from a
bankruptcy proceeding. They have nothing to do with what I have to
do.

On March 22, 2021, the Louisiana district court judge signed a judgment

granting the Trust’s motion, directing the clerk of court to cancel the 1997

Mortgage and 2015 Reinscription, and awarding the Trust with costs and attorney

fees.

Ms. Bell appeals and appears before this court pro se. She has also

submitted a “Motion to Strike” with this court.

11

ANALYSIS

Motion to Strike

We fill first address Ms. Bell’s “Motion to Strike,” wherein she seeks to

strike from the record:

[a]ll documents which are irrelevant to the civil suit filed by
appellee . . . including but not limited to:

The Realtor documents regarding the potential sale
The Bankruptcy Court Judgment evidence as in noncompliance
The Dation En Paiment;
“Unofficial” marked documents.

At the hearing on the Trust’s motion, the Louisiana district court accepted

into evidence all exhibits attached to the Trust’s Motion for Summary Judgment, as

well as Ms. Bell’s “Motion” in opposition. Ms. Bell did not raise any objection

during the hearing concerning the admission of these documents into evidence.

“The general rule is that a rule of evidence not invoked is waived, and,

hence, a failure to object to evidence waives the objection to its admissibility.”

Ratcliff v. Normand, 01-1658, pp. 6-7 (La.App. 3 Cir. 6/5/02), 819 So.2d 434, 439.

“To preserve an evidentiary issue for appellate review, it is essential that the

complaining party enter a contemporaneous objection to the evidence or testimony,

and state the reasons for the objection.” LaHaye v. Allstate Ins. Co., 570 So.2d 460,

466 (La.App. 3 Cir.1990), writ denied, 575 So.2d 391 (La.1991) (citing Pitts v.

Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860 (La.1989),

556 So.2d 1262 (La.1990)). Similarly, La.Code Civ.P. art. 966(D)(2) requires that

“[a]ny objection to a document [filed in support of or in opposition to a motion for

summary judgment] shall be raised in a timely filed opposition or reply

memorandum.”

12

Therefore, because Ms. Bell did not raise any evidentiary objections with the

Louisiana district court during the hearing or otherwise, it is improper for us to

consider Ms. Bell’s evidentiary objections raised for the first time on appeal. Her

Motion to Strike is hereby denied.

On the Merits:

While Ms. Bell’s appellant brief filed herein is rambling, difficult to follow,

and fails to identify specific assignments of error as required by the Uniform

Rules—Courts of Appeal, we will nevertheless address the following arguments,

which we were able to extract from her briefing: (1) the Trust proceeded with the

Motion for Summary Judgment despite Ms. Bell’s request for a jury trial; (2) the

Motion for Summary Judgment was improperly drafted by attorney Ackermann

rather than by Mr. Mier, who signed the pleading; and (3) the summary judgment

is based upon a fraudulent bankruptcy court judgment rather than facts.

We first note that, under the Louisiana Code of Civil Procedure, a jury trial

demand does not preclude a party from submitting a motion for summary judgment.

Therefore, we reject Ms. Bell’s argument to this extent. Rather, “[t]he summary

judgment procedure is designed to secure the just, speedy, and inexpensive

determination of every action, . . . [and] [t]he procedure is favored and shall be

construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). “A party

may move for a summary judgment for all or part of the relief for which he has

prayed. A plaintiff’s motion may be filed at any time after the answer has been

filed.” La.Code Civ.P. art. 966(A)(1). The Trust’s motion for summary judgment

was filed following the submission of Ms. Bell’s answer and was properly

considered by the Louisiana district court.

13

We further find no support for Ms. Bell’s argument that the Louisiana

district court erred in granting the Trust’s motion because the motion, although

signed by Mr. Mier, was actually drafted by attorney Ackermann. There is no

evidence in the record establishing that Mr. Ackermann drafted the motion at issue,

and we further fail to see how this argument is relevant to the merits of the

summary judgment before us.

With respect to the merits, we review summary judgments rendered by a

district court in accordance with the following:

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363,
p. 3 (La. 11/29/06), 950 So.2d 544, 546, see La. C.C.P. art. 966. A
summary judgment is reviewed on appeal de novo, with the appellate
court using the same criteria that govern the trial court’s determination
of whether summary judgment is appropriate; i.e. whether there is any
genuine issue of material fact, and whether the movant is entitled to
judgment as a matter of law. Wright v. Louisiana Power & Light,
2006-1181, p. 17 (La. 3/9/07), 951 So.2d 1058, 1070; King v. Parish
National Bank, 2004-0337, p. 7 (La. 10/19/04), 885 So.2d 540, 545;
Jones v. Estate of Santiago, 2003-1424, p. 5 (La. 4/14/04), 870 So.2d
1002, 1006.

Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (footnote

omitted).

“[A] motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is
before the court on the motion for summary judgment, the mover's
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court the absence of factual support for one or more
elements essential to the adverse party's claim, action, or defense. The

14

burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

Louisiana Revised Statutes 9:5176, which is at issue here, provides a process

by which a property owner can seek and obtain the cancellation of a recorded

instrument that is no longer effective against his property. This statute states:

A. Within thirty days after receipt of a written request from the
owner of an immovable to do so, the following persons shall deliver
to the owner a written instrument, in proper form, acknowledging that
the rights of that person are extinguished:

....

(2) A person who had an option, right of first refusal, or other
contractual or legal right to acquire an immovable, a right in or over it,
or the lease of an immovable and whose rights have become
extinguished by virtue of the expiration of their term, the failure to
exercise them timely, or the happening of a condition or other
occurrence.

B. If the person required to deliver an acknowledgment fails or
refuses to do so, . . . the owner of the immovable may bring an action
to declare that the rights are extinguished or ineffective and to direct
the recorder to record in his records the judgment so rendered.

....

D. In an action pursuant to this Section, the court may order the
losing party or parties to pay the costs of the action and reasonable
attorney fees incurred by the prevailing party or parties.

The undisputed material facts before us establish that the Trust is the owner

of the Property subject to the Mortgage and Reinscription, and therefore it is

entitled to seek cancellation of those recorded documents as contemplated by

La.R.S. 9:5176. Specifically, both the August 1, 2005 and November 9, 2005

bankruptcy court judgments recognize the Trust as the owner and title holder of the

Property.

15

While the 2005 bankruptcy court judgments are final judgments that are no

longer appealable, Ms. Bell, in defense of the Trust’s Motion for Summary

Judgment, nevertheless asked the Louisiana state district court to find those

judgments invalid because they were allegedly obtained by fraudulent means. She

now asks this court to do the same. However, as explained by the Louisiana

district court, Ms. Bell has no valid legal grounds upon which to attack the validity

of the bankruptcy court’s judgments in connection with the Trust’s motion for

summary judgment that is currently pending before us.

We first note that under 28 U.S.C. §1334, federal district courts have

“original and exclusive jurisdiction” of all cases under title 11 of the United States

Code, which is the Bankruptcy Code (emphasis added). While federal district

courts are permitted to refer those cases to federal bankruptcy judges for their

districts in accordance with 28 U.S.C. §157, Louisiana state courts have no

jurisdiction over cases arising under the Bankruptcy Code.

Moreover, under concepts of res judicata, generally, “a valid and final

judgment is conclusive between the same parties. . . . in any subsequent action with

respect to any issue actually litigated and determined if its determination was

essential to the that judgment.” La.R.S. 13:4231. Therefore, the 2005 bankruptcy

judgments involving both Ms. Bell and the Trust are dispositive with respect to the

Trust’s ownership of the Property and other issues adjudicated therein.

Finally, Louisiana law does not authorize Ms. Bell to collaterally attack the

bankruptcy court’s judgments as a defense to the Trust’s motion for summary

judgment.

A collateral attack is defined as an attempt to impeach a decree
in a proceeding not instituted for the express purpose of annulling it.
As the Supreme Court stated in Allen v. Commercial Nat. Bank, [243

16

La. 840, 147 So.2d 865, 868 (1962),] “[n]o principle of law has
received greater and more frequent sanction, or is more deeply
imbedded in our jurisprudence, than that which forbids a collateral
attack on a judgment or order of a competent tribunal, not void on its
face ab initio.” With this in mind, in Price v. Price, [326 So.2d 545,
548 (La.App. 3 Cir.1976),] we stated that “[a] judgment rendered by a
Court of competent jurisdiction imparts absolute verity and has the
force of things adjudged, unless and until it is set aside in a direct
action of nullity. It cannot be collaterally attacked.”

Edwards v. Edwards, p. 5 (La.App. 3 Cir. 12/22/99), 755 So.2d 331, 334-35
(footnotes omitted).

Therefore, we reject Ms. Bell’s suggestion that the summary judgment

should be reversed because the underlying bankruptcy judgments upon which it

was rendered are invalid.

Next, we find that, under the undisputed material facts in the record, the

1997 Mortgage is not effective against the Property, and it was not effective

against the Property at the time of its 2005 Reinscription; therefore, cancellation of

both the Mortgage and the Reinscription was proper.

First, as noted by the Trust, Mr. Bell had no right to encumber the Property

with the Mortgage in 1997, because he did not own or otherwise have the power to

alienate the Property at the time. See, La.Civ.Code art. 3290. Rather, pursuant to a

written Act of Donation dated October of 1996, Mr. Bell donated the Property to

the Trust, and Ms. Bell, as trustee of the Trust at the time, accepted the donation on

behalf of the Trust. The Act of Donation was signed by Mr. Bell as the donor, Ms.

Bell on behalf of the donee (the Trust), two witnesses, and a notary.

The 1996 Act of Donation is a donation inter vivos as contemplated by

La.Civ.Code art. 1468. Further, the donation is in proper form as it was made by

an authentic act. La.Civ.Code art. 1541. Because it is in authentic form, it is

17

presumed to be valid. Moore v. Burns, 03-1199 (La.App. 3 Cir. 3/3/04), 867 So.2d

142, writ denied, 04-874 (La. 5/14/04), 872 So.2d 522.

Ms. Bell, however, seems to suggest in her appellant brief that the Act of

Donation should be deemed invalid because Mr. Bell was allegedly not able to

donate the property due to ongoing criminal proceedings pending against him at

the time, which “included an effort by the government to provoke a forfeiture of”

the Property. In re Bell Family Trust, 350 B.R. at 702. In so arguing, Ms. Bell

points to purported testimony from Mr. Bell in an unidentified federal court

proceeding stating he could not donate the property. Even assuming this is valid

evidence for purposes of opposing a summary judgment, generally “[t]estimonial

or other evidence may not be admitted to negate or vary the contents of an

authentic act[.]” La.Civ.Code art. 1848.7 Therefore, we find the Act of Donation

to be valid.

Further, the Act of Donation, which transfers the Property from Mr. Bell to

the Trust, was effective as between Mr. Bell and the Trust when Ms. Bell accepted

the donation on behalf of the Trust via her signature on the Act of the Donation.

See La.Civ.Code arts. 1544 and 1551. “When the donation is effective, the

ownership or other real right in the thing given is transferred to the donee.”

La.Civ.Code art. 1551. Therefore, ownership of the Property was transferred to the

Trust when Ms. Bell signed the Act of Donation on behalf of the Trust. Since Mr.

Bell transferred the Property to the Trust via Ms. Bell as the trustee, he did not

have authority to encumber the Property with a mortgage in favor of Ms. Bell.

7
While “in the interest of justice, that evidence may be admitted to prove such
circumstances as a vice of consent or to prove that the written act was modified by a subsequent
and valid oral agreement[,]” Ms. Bell has not made any such allegations herein. Id.

18

Therefore, under the circumstances of this case, the Mortgage cannot be said

to have ever been valid or effective as to the Property, and its cancellation was

proper under La.R.S. 9:5176. Ms. Bell cannot take the position that she was not

aware that Mr. Bell did not own the Property at the time he signed the Mortgage in

favor of Ms. Bell, given that she signed the Act of Donation accepting the Property

on behalf of the Trust.

In addition, even assuming the Mortgage was otherwise effective against the

Property when it was initially signed in 1997, Louisiana law provides the following

grounds upon which an otherwise effective mortgage becomes extinguished and no

longer effective against the property it encumbers:

(1) By the extinction or destruction of the thing mortgaged.

(2) By confusion as a result of the obligee’s acquiring
ownership of the thing mortgaged.

(3) By prescription of all the obligations that the mortgage
secures[8].

(4) By discharge through execution or other judicial proceeding
in accordance with the law.

(5) By consent of the mortgagee.

(6) By termination of the mortgage in the manner provided by
Paragraph D of Article 3298.

(7) When all the obligations, present and future, for which the
mortgage is established have been incurred and extinguished.

La.Civ.Code art. 3319.

8
We note that, in accordance with La.Civ.Code art. 3498, “[a]ctions . . . on promissory
notes . . . are subject to a liberative prescription of five years. This prescription commences to
run from the day the payment is exigible.” The record before us suggests that any action to
recover under the promissory note has prescribed, at least as of the date of Reinscription;
however, since that issue has not been presented in connection with this action, we will not
consider whether or not obligation secured by the Mortgage had prescribed.

19

Here, any right Ms. Bell had to collect on the $40,000.00 was extinguished

by the bankruptcy court’s 2005 judgments, which awarded the Trust with both the

$40,000.00 debt evidenced by the promissory note, as well as the Property

encumbered by the Mortgage and Reinscription that purportedly secures the debt.

As discussed above, the bankruptcy court’s judgments are valid and final

judgments, and their validity cannot be collaterally attacked in connection with an

opposition to a motion for summary judgment. We fail to see how Ms. Bell had

any right to reinscribe a mortgage that secures a debt that was not owed to her,

even if the mortgage was originally valid and effective against the Property.

In addition, even assuming the Mortgage was initially effective as to the

Property, it was extinguished by confusion under La.Civ.Code art. 3319(2)

following the bankruptcy court’s 2005 judgments recognizing the Trust as the

obligee of the debt and owner of the Property encumbered by the mortgage

securing the debt.

Therefore, under La.R.S. 9:5176, the Trust, as owner of the Property at

issue, had a right to seek cancellation of the Mortgage and Reinscription, as the

Mortgage was extinguished and not effective against the Property.

We further find that the Trust’s instant civil action seeking the cancellation

of the Mortgage and Reinscription was permissible under La.R.S. 9:5176. In

accordance therewith, prior to filing the civil action, the Trust submitted written

correspondence via certified mail to Ms. Bell, requesting she cancel the Mortgage

and Reinscription; however, after receipt of the correspondence, Ms. Bell failed to

do so. Therefore, the Trust filed the instant action under La.R.S. 9:5176(3) and

was properly awarded with costs and attorney fees under La.R.S. 9:5176(D).

20

Therefore, we find that the undisputed material facts, including the final

judgments of the bankruptcy court, support the Louisiana district court’s summary

judgment herein cancelling the Mortgage and Reinscription, and we affirm the

judgment.

We further reject Ms. Bell’s requests in her brief to this court to consider or

otherwise rule on her purported “counterclaims,” as the only issue pending before

this court is a review of the summary judgment rendered in favor of the Trust.

DECREE

For the reasons set forth herein, we deny Ms. Bell’s Motion to Strike, and

we affirm the Louisiana district court’s summary judgment rendered in this matter.

Costs of this appeal are assessed to Ms. Bell.

MOTION TO STRIKE DENIED; AFFIRMED.

21