Wells Fargo Bank, N.A. VS Diana L. Tonagel

Annotate this Case

Download PDF

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT ER JM Ni 2012 CA 0380 and 2011 CW 2400 WELLS FARG BANK N J 1 VERSUS DIANA L TONAGEL Judgment Rendered JUM 0 7 2013 i G Appealed from the Second Twenty Judicial District Court In and for the Parish of St Tammany State of Louisiana Suit Number 2010 15088 Honorable Reginald T Badeaux Presiding Kent A Lambert Brian M Ballay Counsel for Plaintiff Appellant Wells Fargo Bank N A Roy C Cheatwood Laura M Williams New Orleans LA and Charles H Heck Jr Monroe LA Diana L Tonagel Appellee Defendant Pro Se Mandeville LA BEFORE GUIDRY CRAIN AND THERIOT JJ GUIDRY J Wells Fargo Bank N Wells Fargo appeais from a judgment of the trial A court confirming a defanit judgme in favor of Diana Tonagel and ardering that nt the Order of Seizure entered on August 12 2010 be vacated and that the seized property be returned to Tonagel ordering that the mortgage loan be reinstated without penalty awarding Tonagei damages and attorney fees on her s reconventional demand and ordering that the law firm of Dean Morris LLP and attomey Charles H Heck Jr be disqualified fronn representing any party relative to these proceedings For the reasons that follow we vacate the judgment of the trial court FACTS AND PROCEDURAL HISTORY On August 10 2010 Wells Fargo filed a petition to enforce security interest by executory process seeking the issuance of a writ of seizure and sale of mortgaged property securing a 2009 loan made to Ms Tonagel An order commanding the St Tammay Parish Sheriff Sheriffl to seize and sell the property affected by the mortgage was issued on August 12 2010 A writ of seizure was issued on the same date Unable to effectuate service upon Ms Tonagel Wells Fargo moved to have a curator ad hoc appointeii by the trial court The trial court subsequently appointed attorney James Casey Fos to recea service ve Thereafter on January 21 2011 Mr Fos on behalf of Ms Tonagel filed a Petition far Injunction of Judicial Sale Motion to Disqualify Counsel and Reconventional Demand far Damages P of Costs and Attorney ayment sFees In this pleading Ms Tonagel sought to have the August 12 2010 order o seizure F and sale set aside and the writ of seizure recalled to enjoin the Sheriff from proceeding with the sale of the property reinstatement of the mortgage without penalties to enjoin the law firm of Dean Monis and attorney Charles H Heck Jr from acting as counsel for Wells Fargo damages for Wells Fargo unauthorized s 2 use of executory process damages for Wells Fargds bad faith and unfair trade practices in violation of the Louisxana Unfair Tra Practices Act LJTPA and e s attorney fees An order w subsequsntly sign by the trial court n January 24 2011 s d granting a hearing for preliminary injur Qf ja sale witr the date to be tior al c dic determined It further ordered that ll k ap f a hearing on January ells argo ear r 31 2011 and show cause why the court should not enter an order in favor of Ms Tonagel granting her request to vacate the order of seizure entered on August 12 2010 far disqualification of counsel for Wells Fargo and for an award of damages costs and attomey fees reinstatement of the mortgage loan without s penalty and all other relief as is reasonable However the parties subsequently or agreed to re the judicial sale for a later date and continue the hearing schedule Nevertheless on May 6 2011 Mr Fos sent a request to the trial court asking that it enter a preliminary default against Wells Fargo on the reconventional demand stating that Wells Fargo was served with the reconventional demand on January 24 2011 but as of the date of the request it had not filed an answer to the demand Thereafter on May 10 2011 the trizi court ordered entry of a preliminary default against Wells Fargo by way of a minute entry On May 17 2011 the trial court held a hearing to corifirm the preliminary default judgment entered against Wells Fargo at the conclusion of which the trial court rendered judgment in favor of plaintiff in reconvention Ms Tonagel and against Wells Fargo as prayed The trial court signed a judgment on May 24 2011 fmding the allegations of fact and law as pled in the petition for injunction motion to disqualify and reconventional demand for damages were well founded and that Ms Tonagel had made a prima facie case warranting juugment as prayed for in the pleadings The jud ordered the seizure entered August 12 2012 nent be vacated and ordered the Sheriff to return the property to Ms Tonagel ordered 3 the mortgage loan be reinstated without penalty and that all penalties fees and charges by Wells Fargo be removed disqualified Dean Morris LLP and Charles H Heck Jr from representing any party relative to these proceedings awarded Ms Tonagel damages totaling 75 and attorney fees in the amount of 00 000 s 00 000 5 and awarded treble damages far Wells Fargo fraud and unfair trade s ar practices in violation of the Louisiana UTPA La R 51 S 1401 Wells Fargo subsequently filed a motion for new trial asserting lack of notice as required by La C art 1702 the absence of evidentiary support P A for the relief sought by Ms Tonagel and the relief granted contravened applicable substantive law Following a hearing on Wells Fargo motion the trial court s signed a judgment on November 23 2011 granting a new trial in part as to the award pursuant to the UTPA and denied the motion for new trial as to all other Thereafter on December 21 2011 the trial court signed an order issues consented to by the parties vacating the portion of the May 24 2011 judgment awarding Ms Tonagel treble damages and attorney fees for violation of the s UTPA and ardering that the remainder of the court May 24 2011 judgment shall s remain in full force and effect and is designated as a partial final judgment finding no just reason for delay Wells Fargo now appeals from the trial court judgment s After reviewing the trial courYs May 24 2011 judgment and the November 23 2011 order certifying the judgment as final and considering the overriding inquiry of whether there is no just reason for delay as well as the other non criteria trial court should use in exclusive s making the deternunation of whether certification is appropriate we find that the trial court properly certified the May 24 2011 judgment as a final appealable judgment See R J Messinger Inc v Rosenblum 04 pp 13 La 3 894 So 2d 1113 1122 1664 14 OS 2 Motorola Inc v Associated Indemnitv Corp 02 p 16 La App lst Cir 10 867 1351 03 22 So 2d 723 732 In addition to filing the instant appeal Wells Fargo also filed a supervisory writ with tlus court on December 27 2011 seeking review of the trial court partial denial of its motion for s new trial In an interim order dated March 28 2012 the previously filed writ application was referred to the panel to which the appeal is assigned See Wells Fazgo N v Tonagel 2011 A 2400 La App lst Cir 3 unpublished writ action However because the May 24 20ll 12 28 judgment is a final appealable judgment and the writ application raises the same issues raised in the appeal currently before us we hereby dismiss the writ application as moot See Code v Department of Public Safety and Corrections ll p 5 App lst Cir 10 103 So 1282 La 12 24 3d 1118 1123 n writ denied 12 La 1 105 So 3d 59 6 2516 13 23 4 I DISCUSSION Executory proceedings are those which are used to effect the seizure and sale of property without previous citation and judgment to enfarce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment and in all other cases allowed by law La C art 2631 Defenses P and procedural objectio to an esecutory proceeding may be asserted either ns 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 La C art 2642 When P utilizing the injunction procedure the petition for injunction shall be filed in the court where the executory proceeding is pending either in the executory proceeding or in a separate suit and the injunction proceeding shall be governed by the provisions of Articles 3601 through 3609 and 3612 except as provided in Article 2753 La C art 2752 P In the instant case Ms Tonagel filed a Petition for Injunction of Judicial Sale in the executory proceeding which also included a reconventional demand for damages and attorney fees for the wrongful seizure of the property at issue and s for purported violations of the UTPA A defendant in a principal or incidental action must file an answer within fifteen days after service of citation upon him except as otherwise provided by law La C arts P 1001 and 1035 If a defendant in a principal or incidental demand fails to answer within the time prescribed by law judgment by default may be entered against him La C art P A 1701 This judgment of default is commonly refened to as the preliminary default See Power Marketing Direct Inc v Foster OS p 10 La 9 2023 06 6 z Because we find Ms Tonagel failed to comply with the notice requirements far confirming the default judgment against Wells Fargo we specifically do not address whether her reconventional demand is properly asserted in this executory proceeding See La C art P 462 see also La C art 2644 noting that a plaintiffin an executory proceeding may convert P it into an ordinary proceeding 5 938 So 2d 662 669 The judgment may be obtained by oral motion in open court or by written motion mailed to the court either of which shall be entered in the minutes of the court but the judgnnent shalfl consist merely of an entry in the minutes La C art 1701 P A Louisiana Code of Civil Procedure article 1 sets forth two procedures A 2 for confirmation of a default judgment with the defendant actions in the case s determining the procedure to be utilized by the plaintif Power Marketin Dgirect 2023 OS at p 10 938 So 2d at 669 If no answer is filed timely the plaintiff may confirm the judgment of default after two days exclusive of holidays from the entry of the judgment of default La C art 1702 However when a P A judgment of default has been entered against a party that is in default after having made an appearance of record in the case notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default or if there is no counsel of record to the party in default at least seven days exclusive of holidays before confirmation of the judgment of default La C art 1702 P A Courts have held that in order to obtain a valid confirmation of a default judgment strict compliance with the procedural requirements of La C art P A 1702 is required See Nickens v Patriot Home Svstems 97 p 5 0291 La App lst Cir 6 713 So 2d 1179 1182 Jules v Le 618 So 2d 1121 98 29 e 1122 La App Sth Cir writ denied 629 So 2d 344 La 1993 Further if a judgment of default is confirmed before the expiration of the delay prescribed by statute itwo legal days after entry of the preliminary default if no answer is e I timely filed or seven days after notice is sent if the defaulting party has made an appearance of record the confirmation of the judgment of default is premature and the judgment is null and invalid Power Marketin OS at p ll 938 2023 So 2d at 670 A final judgment shall be annulled if it is rendered against a 6 defendant against whosn a d va enii gt ju t s defau h rzot been taken La P C art 2002 see als P Marl Direct OS at p 11 938 So 2 A ower etin 23 2i 2d at 670 In the instar case Ms T requesied n May 6 20 1 that the trial t nagel court enter a prelirr d Agairr i1s Pargo on l reccrziventi inary efa st 1t er onal demand stating that sz had beei nnude on afUr Vv ils Fargo on January vice l s r 24 2011 and that as of the date f its request We1ds Fargo t nat filed an answer ad to its reconventional demand Or the sanze date M Toriagel also notified Welis Fargo by certifed mail of her intent t9 seek a prelirAanary default Thereafter on y M I0 2011 the trial court entere ud of default against Wells Fargo ia nenx and following a hearing on May 17 ZO11 confrmed the default iudgment lls W Fargo asserts on appeal that the trial court etred in confirming a default judgment against it because Ms Tonagel failed to comply w the notice th requirements of La C art 1702 Specifrcally Wells Fargo asserts that Ms P A Tonagel failed to provide Wells Fargo with notice of the date of entry of the judgment of defauYt by certified mail at least se days beTore corAfirmation ofthe en default judgment The Legislature added this paztical nc rcec vh it amended tice airement en La C art 1702 through Acts OOl iti S l ne am spec P A o 2 tnent nfied that notice of the date of entry of thz def junnust be given to the arty in ault c gment default who rrade an appearance of record Pow rMarketin 1 O5 at p irect Z023 15 6 n 938 So 2d at 672 n 6 ce AppearaY o recorci is intended Yo have the same meaning as in La C art 1671 and rncludes filing a pleading such as any P one or more of the exceptions appearing at a hearing and formally enrolling as counsel of recard Co ib to La C art 1702 The purpose of 2001 mments P this amendment is to conform default pro to the rationale t foz in Russell edure v Illinois Central Gulf Railrc 96 La 1 686 So 2d 817 hat it is ad 2649 97 10 7 an ill practice to confirm a judgmeiit of default wit tnotice agaixzst a party ou that has already filed pleadings constituiing x appearance of record in the 1 2Cl ant r litigation proceedings Com a to P e art 1 92 Wells Far izbitiated the sxG din seeki the seizure a sale e rpxos zt c d of the morkgaged property nd o an irtiez frc the triai cautt rant 2he tied ta n ng requested relie N1s Tonagei filed a petiti f irRf aG sa motion n r jac e unctxut aY to disqualify counsel and reconventional demand for damages in the executory proceeding in defense of and in response to Werls Fargo action Both actions s arise out of the same seizure and sale of the property and concem an identical issue i the validity of the executory proceeding Therefore from our review of e the record and considering the plain language as well as the intent of the legislature in amending La C art 1702 we find that the record P A demonstrates that Wells Fargo made an appearance f record i the litigation proceedings and Ms Tonagel was required to provide it with notice of the date of entiry of the judgment of default by certified mail at least seven days exclusive of holidays before confirmation of the default j See Russe 2649 at pp xdgment l96 3 2 686 So 2d at 819 finding it was an i11 ractice far a plaintiffls attornzy to obtain a default judgment without attempting to notify the opposing attomey when the opposing attorney in an on petitory action had participated in the going litigation proceedings Power Marketin Direct OS at pp 18 938 Sa 2d 2023 19 at 674 fmding it was an ill practice for plaintiff to fail to notify defendant of his intent to seek a default judgment given plaintiff sknowledge that defezidant lacked notification and considering that defendant was actively prosecuting and defending its rights in Ohi litigation involving identzcal issues arising out of the same o contractual dispute between the same parties Duckworth Pxoperties L v C Williams 10 pp 5 La App 4th Cir I1 52 So 3d 87 291 0244 6 10 2 finding it was an ill practice for plaintiff to take a default judgment against the 8 defendant in one jurisdiction while a suit arising out of the same contractual dis P ute was P endin g in another jurisdiction As evidenced by the record Ms Tonagel failed to provide Wells Fargo with notice of the date of the entry of the judgment of default by certified mail at least seven days exclusive of holidays before confirmation of the judgment of default While Ms Tonagel sent a letter by certified mail to Wells Fargo on May 6 2011 enclosing its request to the clerk of court to enter a preliminary default which was received by Wells Fargo on May 9 201 l it does not notify Wells Fargo of the date of the entry of thejudgment of defaudt which judgment was not entered until May 10 2011 As previously noted strict compliance with the procedural requirements of La C art 1702 is required in order to obtain a valid confirmation of a P A default judgment Therefore because Ms Tonagel failed to send the required notice to Wells Fargo the judgment confirming the default is null See Jackson v Culotta 10 p 4 App Sth Cir 3 62 So 3d 803 804 879 La 11 29 CONCLUSION For the foregoing reasons we vacate the May 24 2011 judgment confirming Ms Tonagel sdefault judgrnent and remand this matter to the trial court for further proceedings All costs ofthis appeal are assessed to Diana Tonagel JUDGMENT VACATED AND REMANDED WRIT DISMISSED MOTION TO STRIKE DISMISSED Wells Fargo filed a motion to strike supplemental trial exhibits with this court on 7une 29 2012 requesting that tlus court issue an order striking documents added to the trial court record which it asserts were not previously filed with the trial court and were not properly authenticated or admitted Because these documents allegedly relate to the confirmation of the default judgment which judgment we have determined to be null we dismiss the motion to strike as moot 9 I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.