Opinion
NO. 2018-CA-0321
09-19-2018
EMBRACE HOME LOANS, INC. v. Linia Thomas BURL a/k/a Linia T. Burl a/k/a Linia Burl
Jonathan G. Wilbourn, McGlinchey Stafford, PLLC, 301 Main Street-14th Floor, Baton Rouge, LA 70801, and Mark R. Deethardt, McGlinchey Stafford, PLLC, 601 Poydras Street, 12th Floor, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE Linia Thomas Burl, P.O. Box 8151, New Orleans, LA 70182, PRO SE DEFENDANT/APPELLANT
Jonathan G. Wilbourn, McGlinchey Stafford, PLLC, 301 Main Street-14th Floor, Baton Rouge, LA 70801, and Mark R. Deethardt, McGlinchey Stafford, PLLC, 601 Poydras Street, 12th Floor, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
Linia Thomas Burl, P.O. Box 8151, New Orleans, LA 70182, PRO SE DEFENDANT/APPELLANT
(Court composed of Chief Judge James F. McKay, III, Judge Sandra Cabrina Jenkins, and Judge Dale N. Atkins )
JUDGE SANDRA CABRINA JENKINS
This appeal arises from a petition for mortgage foreclosure by executory process filed by Embrace Home Loans, Inc. ("Embrace") against Linia Burl as to the property located at 1447 Mithra Street. Ms. Burl filed the instant appeal from the trial court's denial of a proposed "Judgement [sic] for Borrower" which she submitted to the trial court. Upon inspection, we cannot determine from the "judgement" appealed what ruling has been rendered or what specific relief has been denied to Ms. Burl. Thus, we find there is no valid, appealable judgment before this Court. Accordingly, we dismiss the appeal.
Subsequent to filing the petition for executory process and the issuance of writ of seizure and sale, Embrace Home Loans, Inc. transferred the promissory note sued on to Lakeview Loan Servicing, Inc., which has been substituted as the proper party plaintiff in this case.
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FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2011, Ms. Burl executed a promissory note in favor of Embrace in the amount of $128,775. The note was secured by an act of mortgage executed by Ms. Burl, encumbering immovable property located at 1447 Mithra Street.
In January 2016, Ms. Burl defaulted on the mortgage by failing to make a monthly payment. A notice of default and intent to accelerate was mailed to Ms. Burl on June 15, 2016. On August 30, 2016, Embrace filed a petition for mortgage foreclosure by executory process, attaching the note evidencing the obligation and the act of mortgage importing a confession of judgment. On September 23, 2016, a writ of seizure and sale of the property affected by the mortgage was issued.
On May 24, 2017, Ms. Burl filed an injunction petition in response to the petition for executory process in a separate lawsuit, naming Embrace and Roundpoint Mortgage Servicing Corporation ("Roundpoint") as defendants. The record indicates that the two cases were consolidated below.
On December 7, 2017, the property at issue was sold at a Sheriff's sale. After the sale occurred, on December 19, 2017, Ms. Burl filed a motion for contradictory hearing on her injunction petition.
At a hearing on February 1, 2018, Ms. Burl acknowledged that her property had been sold at the Sheriff's sale on December 7, 2017. Ms. Burl contended, however, that she had been granted a judgment for preliminary injunction to enjoin the sheriff's sale by another judge. Ms. Burl presented no evidence of a judgment supporting her contention; and the trial court found no judgment in the record to support that contention. Consequently, since the property at issue had been sold on December 7, 2017, the trial court dismissed Ms. Burl's injunction petition. The trial court requested that defense counsel prepare a judgment indicating that the petition was dismissed.
On February 23, 2018, Ms. Burl submitted to the trial court a proposed "Judgement for Borrower." The four-page proposed "judgement" consisted of assertions of "violations" by Embrace, and confused, varied statements regarding the proceedings leading to the foreclosure and sale of her property. The concluding order on the proposed "judgement" stated as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT Linia Burl's requests for a cancellation of Suit # 2016-08726 and a permanent restraining order, permanent injunction, and cancellation of Forced Foreclosure Sale—Mortgage Fraud on 12/7/2017 be granted.
On February 26, 2018, the trial court signed the proposed "judgement" and stamped it "DENIED."
On February 26, 2018, Ms. Burl filed a "Petition for Appeal" of the "Judgement for Borrower" denied by the trial court. On February 28, 2018, the trial court signed an order granting a devolutive appeal. This appeal was lodged on April 11, 2018; thereafter, both parties filed briefs.
On August 21, 2018, this Court ordered the parties to submit supplemental briefs to show cause why this appeal should not be dismissed for lack of a valid, appealable judgment.
JURISDICTIONAL ISSUE
Appellate courts have the duty to determine, sua sponte , before reaching the merits of an appeal, whether the court has jurisdiction to consider the merits of the appeal. Urquhart v. Spencer , 15-1354, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077. An appellate court cannot determine the merits of an appeal unless its jurisdiction is properly invoked by a valid final judgment. Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C. , 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. A valid final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language. See La. C.C.P. arts. 1841 and 1918. A valid final judgment must contain decretal language, spelling out in definite, unmistakable language the result being decreed. See Mid City Holdings , 14-0506, p. 2, 151 So.3d at 910. Our jurisprudence holds that a valid final judgment must contain three essential components: (1) it must name the party in favor of whom the ruling is ordered; (2) name the party against whom the ruling is ordered; and (3) specify the relief that is granted or denied. See Schiff v. Pollard , 16-0801, p. 6 (La. App. 4 Cir. 6/28/17), 222 So.3d 867, 873 ; Moon v. City of New Orleans , 15-1092, 15-1093, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ; Tsegaye v. City of New Orleans , 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710 ; Mid City Holdings , supra . "The specific relief granted must be apparent on the face of the judgment without reference to an extrinsic source such as pleadings or reasons for judgment." Schiff , 16-0801, p. 6, 222 So.3d at 873.
Applying the foregoing principles, we find that the proposed "Judgement for Borrower" denied by the trial court does not fulfill the requirements for a valid appealable judgment. First, it does not render any determination of the rights of the parties or the merits of the case. Further, we cannot determine from the face of the "Judgement" the party in favor or against whom a ruling was ordered or the specific relief that was denied. We also note that the "Judgement" does not reflect the ruling by the trial court at the February 1, 2018 hearing. Thus, finding that the "Judgement for Borrower" appealed by Ms. Burl is not a valid appealable judgment, this Court's appellate jurisdiction has not been properly invoked and appellant is not entitled as of right to appellate review.
In certain cases, when confronted with a judgment in an appellate context that is not final and appealable, this Court has the authority and discretion to convert the appeal to an application for supervisory review. Forstall v. City of New Orleans , 17-0414, pp. 5-6 (La. App. 4 Cir. 1/17/18), 238 So.3d 465, 469. "This Court's discretionary authority, however, is not unlimited." Id. This Court has exercised its discretion to convert the appeal to a writ when the following two conditions are met: (1) the motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs; and (2) when the ruling under review is arguably incorrect and the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where the reversal of the ruling would terminate the litigation. Joseph v. Wasserman , 17-0603, p. 8 (La. App. 4 Cir. 1/10/18), 237 So.3d 14, 20 (citing Mandina, Inc. v. O'Brien , 13-0085, pp. 7-8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 103-04 ); see also , Rule 4-3, Uniform Rules—Courts of Appeal ; Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc. , 396 So.2d 878 (La. 1981).
Although the first condition is met here, the second condition is not. As stated previously, the proposed "Judgement" denied by the trial court does not reflect any determination of the rights of the parties or merits of the case. We cannot exercise any supervisory jurisdiction to review a ruling that is not determinable. Consequently, we decline to exercise our supervisory jurisdiction in this matter.
CONCLUSION
We find there is no valid appealable judgment before this Court. Consequently, this Court lacks appellate jurisdiction. In addition, this Court declines to exercise our supervisory jurisdiction. Accordingly, the appeal is dismissed.