U.S. Bank National Association v. Gaudet - Document 19
ORDER and REASONS - Presently before the Court is a motion to dismiss filed by Defendant-in-Reconvention U.S. Bank N.A., as Indentured Trustee on Behalf of the Noteholders of Aegis Backed Security Trust 2005-3 Mortgage Backed Notes ("U.S. Bank&q uot;) 6 . IT IS ORDERED that the motion is GRANTED to the extent that the reconventional demand filed by Mr. Donald Gaudet is DISMISSED WITHOUT PREJUDICE to his right to file, no later than fifteen (15) days from the entry of this Order and Reasons, an amending and superseding reconventional demand remedying the pleading deficiencies identified as stated within document. Signed by Judge Kurt D. Engelhardt on 3/27/2012. (cab) Modified on 3/27/2012 to edit document type (cab).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
U.S. BANK N.A. AS INDENTURED TRUSTEE
ON BEHALF OF THE NOTEHOLDERS OF
AEGIS BACKED SECURITY TRUST
2005-3 MORTGAGE BACKED NOTES
DONALD ANTHONY GAUDET (A/K/A
DONALD A. GAUDET, DONALD
SECTION “N” (1)
ORDER AND REASONS
Presently before the Court is a motion to dismiss filed by Defendant-in-Reconvention
U.S. Bank N.A., as Indentured Trustee on Behalf of the Noteholders of Aegis Backed Security
Trust 2005-3 Mortgage Backed Notes (“U.S. Bank”) (Rec. Doc. 6).1 As stated herein, IT IS
ORDERED that the motion is GRANTED to the extent that the reconventional demand filed by
Mr. Donald Gaudet is DISMISSED WITHOUT PREJUDICE to his right to file, no later than
fifteen (15) days from the entry of this Order and Reasons, an amending and superseding
reconventional demand remedying the pleading deficiencies identified herein. The amending and
superseding pleading must include all of the allegations from the original reconventional demand
on which Mr. Gaudet continues to rely, as well as his additional allegations. Finally, if any
U.S. Bank removed Mr. Gaudet’s reconventional demand to this Court from the
Twenty-Fourth Judicial District Court, Parish of Louisiana, on May 20, 2011. See Notice of
Removal (Rec. Doc. 1)
amendments required by the Court are not timely made, or U.S. Bank otherwise contends that the
amendments are insufficiently curative, any resulting request for dismissal with prejudice is to be
urged by means of a properly supported motion for summary judgment, rather than a motion
addressed solely to the face of the pleadings.2
In this action, Mr. Gaudet seeks to set aside a judicial sale of immovable property
resulting from an executory proceeding instituted under Louisiana law. He also seeks an award of
damages and attorney’s fees against U.S. Bank for the alleged wrongful seizure and sale of the
property in question. Urging that Mr. Gaudet’s allegations fail to state a claim upon which relief
can be granted, U.S. Bank seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil
LAW AND ANALYSIS
As discussed in Bishop v. Shell Oil Co., No. 07-2832, 2008 WL 2079944, *1-2 (E.D.
La. 5/16/08) (Engelhardt, J.), Rule 8 of the Federal Rules of Civil Procedure requires that the
complaint provide the defendant with "fair notice of what the plaintiff's claim is and the grounds
upon which it rests." Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S. Ct. 992, 998 (2002)
(internal citations omitted); see also Christopher v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179,
2187 (2002) (the elements of the plaintiff's claim(s) "must be addressed by allegations in the
complaint sufficient to give fair notice to a defendant"). Although a complaint does not need
The Court issues this directive given the significant number of assertions in the
parties’ present submissions regarding documents filed into the state court record, but not annexed
to U.S. Bank’s petition for executory process, or Mr. Gaudet’s reconventional demand (Rec. Docs.
1-1), as well as U.S. Bank’s contention that Mr. Gaudet communicated with the court-appointed
curator months before the property in question was sold.
"detailed factual allegations, . . . more than labels and conclusions are necessary, and a formulaic
recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (internal citations and quotations
omitted); see also Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)
(on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a
factual allegation"). Thus, "the plaintiff must plead ‘enough facts to state a claim to relief that is
plausible on its face.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Twombly, 550 U.S. at 570)). The degree of required specificity, however, depends on
context, i.e., the type of claim at issue. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
In evaluating motions to dismiss filed under Rule 12(b)(6), the Court "must accept
all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff."
Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159, 106
S. Ct. 2279 (1986). If sufficient notice of the basis of the plaintiff's claim is provided, "dismissal
will not be affirmed if the allegations [made] support relief on any possible theory" of recovery.
Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) (internal citations omitted).
Moreover, "[a]ll questions of fact and any ambiguities in the controlling substantive law must be
resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
Applying the foregoing principles to Mr. Gaudet’s reconventional demand, the Court,
having carefully reviewed the parties’ submissions and applicable law, finds that U.S. Bank’s
motion should be granted. Because the motion before the Court is one for dismissal pursuant to
Rule 12(b)(6), however, and Mr. Gaudet has not already amended his reconventional demand, this
ruling shall be without prejudice to his right to file, no later than fifteen (15) days from the entry of
this Order and Reasons, an amending and superseding reconventional demand curing the pleading
deficiencies set forth below.3
With his reconventional demand, Mr. Gaudet first requests that the judicial sale of
the property at issue be annulled and the property returned to him. A debtor who fails to utilize
Louisiana Code of Civil Procedure articles 2642 and 2751-54 to enjoin the sale of property by
executory process,4 and fails to take a suspensive appeal from the order directing the issuance of the
writ of seizure and sale, however, cannot thereafter annul the sale on grounds of minor defects of
form or procedure. See Deutsche Bank Nat. Trust Co. v. Carter, 59 So.3d 1282, 1286 (La. App. 5
To the extent that Mr. Gaudet concludes that he cannot, in good faith and consistent
with the requirements of Rule 11 of the Federal Rules of Civil Procedure, amend the allegations of
his reconventional demand so as to state a viable claim, he is to promptly so notify the Court and
seek dismissal with prejudice of his reconventional demand.
Louisiana Code of Civil Procedure article 2642 provides:
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.
A suspensive appeal from an order directing the issuance of a writ of
seizure and sale shall be taken within fifteen days of the signing of
the order. 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's fee, but exclusive of court costs.
Louisiana Code of Civil Procedure article 2751 provides:
The defendant in the executory proceeding may arrest the seizure and
sale of the property by injunction when the debt secured by the
security interest, mortgage, or privilege is extinguished, or is legally
unenforceable, or if the procedure required by law for an executory
proceeding has not been followed.
Cir. 2011), writ denied, 61 So. 3d 691 (La. 2011) (citing American Thrift & Finance Plan Inc. v.
Richardson, 977 So.2d 105, 108 (La. App. 5 Cir. 2008 )); Reed v. Meaux, 292 So.2d 557 (La.1973).
Similarly, if neither the aforementioned injunction nor suspensive appeal were employed, even
defects in the proceedings that are “substantive in character and  strike at the foundation of the
executory proceeding,” including “fraud and ill practices,” justify an annulment only when property
was adjudicated to and remains in the hands of the foreclosing creditor, rather than in the hands of
an innocent third party. See Deutsche Bank Nat. Trust Co., 59 So.3d at 1286; American Thrift &
Finance Plan Inc., 977 So.2d at 108-09 (citing cases). Finally, Louisiana Revised Statute 13:4112
No action may be instituted to set aside or annul the judicial sale of
immovable property by executory process by reason of 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, where
the sheriff executing the foreclosure has either filed the proces verbal
of the sale or filed the sale for recordation in the conveyance records
of the parish
See La. R.S. 13:4112 (emphasis added).
As presented, the allegations of Mr. Gaudet’s
reconventional demand, seeking the return of immovable property, fail to establish that any of these
standards are satisfied.
Accordingly, as presently pled, Mr. Gaudet’s claim for the return of
property is deficient.
Turning next to Mr. Gaudet’s damage claim for wrongful seizure, it likewise fails
because Mr. Gaudet’s reconventional demand does not aver that he actually suffered damages
caused by alleged deficiencies in the executory proceeding instituted by U.S. Bank. That is, he
never alleges in the reconventional demand that payment was not due, or that he was not in default,
or that, if the alleged deficiencies had not occurred, he would have timely cured any default. See,
e.g., Mortgage Electronic Registration Systems, Inc., (“MERS”) v. Daigle, 10 So. 3d 288, 294 (La.
App. 5 Cir.), writ denied, 32 So.3d 877 (La. 2009) (Although the court made no finding as to
whether there was a technical deficiency in the foreclosure proceedings, Ms. Daigle was not entitled
to damages given that evidence demonstrated a default); Franklin Credit Mgmt. Corp. v. Gray, 2
So.3d 598, 603, n. 7 (La. App. 4 Cir.), writ denied, 6 So.3d 795 (La. 2009)(“burden of proof with
respect to an affirmative defense of ‘payment’ rests with a defendant attempting to assert that the
note has been paid, or the obligation extinguished”)((citing American Bank v. Saxena, 553 So.2d
836, 844 (La.1989)); Rao v. Towers Partners, L.L.C., 688 So.2d 709, 712 (La. App. 4 Cir.), writ
denied, 694 So.2d 246 (La. 1997) (technical deficiency of the petition did not cause anything to
happen that would not have happened had the proper grounds been stated; the end result was the
same; debtors did not show payment not due under the demand note).
And, though Mr. Gaudet complains that U.S. Bank did not allege in its petition for
executory process that it had sent the notice required by ¶20 of the mortgage, Mr. Gaudet similarly
does not allege in his reconventional demand that he never received notice in accordance with the
mortgage’s terms.5 Also, viewing the note and mortgage documents attached to U.S. Bank’s petition
for executory process, it is not apparent to the Court that the acceleration authorized by paragraph
5 of the attached note is dependent on prior notice to the same extent required in Bank of New York
v. Parnell, 32 So. 3d 877, 897-99 (La. App. 5 Cir. 2010), reversed in part on other grounds, 56
So.3d 160 (La. 2011). Rather, as it presently exists, Mr. Gaudet’s reconventional demand at best
appears to allege technical deficiencies in a executory proceeding that in actuality did not cause him
any harm. Cf. Mortgage Electronic Registration Systems, Inc., (“MERS”), 10 So. 3d 28 at 94
See Reconventional Demand (Rec. Doc. 1-1) at ¶ 5.
(notice of default relevant to foreclosure action but not damage suit; regardless of whether debtor
received notice, she knew mortgage required monthly payments). Accordingly, the Court finds that
Mr. Gaudet has not stated a viable wrongful seizure claim.
As stated herein, IT IS ORDERED that the motion to dismiss presently before the
Court (Rec. Doc. 6) is GRANTED. Any amendments ordered by the Court are to be made, in
accordance with the Court’s instructions herein, no later than fifteen (15) days following entry of
this Order and Reasons.
New Orleans, Louisiana, this 27th day of March 2012.
KURT D. ENGELHARDT
United States District Judge