FREDERICKA HOMBERG WICKER, Judge.
This matter arises out of a Petition for Executory Process filed by appellees, Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing, LP, seeking to seize and sell the home, which secured a loan, due to unpaid loan payments. In response to this petition, appellants, Luis Gustavo Erazo and Guadalupe Zapata Erazo, filed both petitions for preliminary and/or permanent injunctions and a reconventional demand that incorporated several claims. Appellees responded to the petition for injunction, by filing an exception of insufficiency of service of process and arguing that the petition for injunction was without merit. In response to the reconventional demand, appellees filed a motion to strike, and exceptions of improper cumulation of actions and unauthorized use of summary proceedings. With regard to appellants' claim under the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1409 specifically, appellees filed an exception of no cause of action.
On September 18, 2012, after a hearing, the trial court granted all of appellees' exceptions and their motion to strike. The trial court thereafter dismissed "all claims of defendants." Appellants now appeal that judgment. For the following reasons,
On February 7, 2012, appellees filed a petition for executory process alleging that appellants owed them $148,982.57, together with interest, attorney fees, and costs, in connection with a real estate mortgage on a certain described property. On February 8, 2012, the trial court granted the appellees' petition for executory process, ordered the appellants be served a copy of the petition, and issued the writ of seizure and sale for which the appellees had petitioned.
On September 12, 2012, the appellants filed their "Reconventional Demand and/or Preliminary Injunction and/or Permanent Injunction and/or Damages and for the Return of the Property"
Counsel for appellants then sent a copy of their September 12, 2012 filing, along with the trial court's orders from that date, to appellees' counsel of record by certified mail. A return receipt in the record shows that appellants' mailing was delivered to counsel for appellees on September 14, 2012.
In their memorandum in opposition to appellants' petition for an injunction, appellees first argued their exception of insufficiency of service of process. They claimed they were never served a copy of the order setting the hearing on appellants' "petition for injunction." On the merits, appellees argued that appellants' injunction was without legal basis and, therefore, should be dismissed.
Regarding the appellants' reconventional demand, appellees argued that it "must be stricken as the Louisiana Code of Civil Procedure does not allow the filing of reconventional demands and answers in response to a petition for executory process." Appellees also supported their exceptions to the reconventional demand, of improper cumulation and of unauthorized use of executory process, with the same improper cumulation argument. In support of their exception of no cause of action, appellees argued that they were exempt from the Louisiana Unfair Trade Practices and Consumer Protection Law under La. R.S. 51:1406(1).
On September 18, 2012, the trial court heard appellees' motion to strike and exceptions; it did not, however, consider the appellants' motion for an injunction on its merits. At the conclusion of this hearing, the trial court granted (in whole cloth) the appellees' motion to strike and sustaining all of their exceptions. It then dismissed "all claims of defendants" without addressing the merits of either the injunction or the reconventional demand.
In their first assignment of error, appellants argue the trial court erred when it granted the appellees' exception on insufficiency of service of process of their injunction and, thereafter, dismissed that motion. In their second, third, and fourth assignments of error, appellants argue the trial court erred with regard to the reconventional demand, in granting the appellees' exception of improper cumulation of actions, exception of improper use of summary proceedings, and motion to strike reconventional demand, and in, thereafter, dismissing their reconventional demand claims without allowing them to sever those claims into a new suit. In their final assignment of error, appellants argue the trial court erred in granting the appellees' exception of no cause of action, claiming they had stated causes of action for wrongful foreclosure, failure to negotiate under the covenants of "good faith and fair dealing," and in their claim that Louisiana's executory process law was unconstitutional.
In their first assignment of error, appellants argue the trial court erred when it granted the appellees' exception of insufficiency of service of process of the appellants' injunction. In response, appellees argue that the trial court validly granted this exception because the appellants did not meet La. C.C.P. art. 1314's requirement of having the sheriff serve their injunction.
Louisiana Code of Civil Procedure article 1313, in pertinent part, provides:
As seen above, La. C.C.P. art. 1313 applies, in relevant part, to "every pleading subsequent to the original petition" and to any pleading or order which "sets a court date." We find that the appellants' September 12, 2012 filing, to the extent that it sought an injunction, fit both of these categories.
First, we find that appellants' injunction was "subsequent to the original petition" because this injunction was a defense in response to the appellees' petition for executory process. The Louisiana Code of Civil Procedure article 2642 specifically recognizes that an injunction is a proper procedural mechanism to assert a defense against an
In their brief to this Court, appellees cite Dalke v. Armantono, 09-1954 (La. App. 1 Cir. 5/7/2010), 40 So.3d 981, for the proposition that petitions for preliminary injunctions must be formally served by the sheriff. While the court in Dalke sustained the defendant's exception of insufficiency of service of process, that defendant had not submitted to the jurisdiction of the court by first filing an original petition. Such is not the case here. Here, the appellees submitted to the court's jurisdiction when they filed their original petition for executory process on February 7, 2012. Because the appellees had submitted to the court's jurisdiction by filing their original petition for executory process, the appellants were not required to use the sheriff to subsequently serve their defensive injunction.
Second, the record reflects that the trial court's September 12, 2012 order set a hearing date on appellants' injunction and incorporated by reference appellants' "Reconventional Demand and/or Preliminary Injunction and/or Permanent Injunction and/or Damages and for the Return of the Property." Because this order set a court date, it is therefore included in Article 1313(C)'s category of orders or pleadings, which may be sent by certified mail.
The record reflects that the order was sent by certified mail to the appellees' counsel of record. On this basis, we find that appellees were properly served the required notice by certified mail.
After the trial court sustained this exception, it dismissed appellants' petitions for injunction. While the record of what occurred at this hearing is murky at best, a close review indicates that while there was some generic conversation regarding the injunction, the trial court never reached the merits of the injunction. Rather, the trial court simply sustained, in whole cloth, all of the appellees' exceptions and dismissed the injunction. This was an error. While the appellees introduced the evidence necessary for us to address the merits of the injunction, since the trial court never reached the merits, we have no decision to review. Therefore, we reverse the trial court's dismissal of the appellants' injunction and remand this matter for further proceedings consistent with this opinion.
In their second, third, and fourth assignments, appellants argue the trial court erred with regard to their reconventional demand when it granted the appellees' exception of improper cumulation of actions,
For the following reasons, we find the trial court correctly found that the reconventional demand had been improperly cumulated with the injunction. However, we also find the trial court erred by dismissing the reconventional demand rather than giving the appellants an opportunity to sever that demand into a separate suit.
The exception of improper cumulation of actions is a dilatory exception. La. C.C.P. art. 926(7). On this exception, La. C.C.P. art. 462 states:
The requirement that all of the actions employ the same form of procedure refers merely to whether each of the cumulative actions employ ordinary, executory, or summary procedure. Abadie v. Cassidy, 91-0967 (La.1991), 581 So.2d 657; Deutsche Bank Trust Co. America v. Ochoa, 12-800 (La.App. 5 Cir. 5/23/13), 120 So.3d 735.
Here, the appellees filed a petition for executory process which sought the seizure and sale of property which secured a mortgage allegedly in default. The appellants' September 12, 2012 filing in response both moved for a preliminary and/or permanent injunction and made a reconventional demand against the appellees for damages. The issue of whether the appellants' petition for injunction was properly cumulated with the appellees' executory process is not before us on this appeal as appellees did not argue at the trial court that appellants' reconventional demand had been improperly cumulated with its petition for injunction.
Appellants' reconventional demand for damages employs an ordinary, not executory, proceeding. See Deutsche Bank Trust Co. America v. Ochoa, supra. Because the reconventional demand does not employ the same form of procedure as the executory proceeding, as required by La. C.C.P. art. 462 for the cumulation of actions, with regard to appellants' reconventional demand for damages, we find that the trial court correctly sustained appellees' exceptions to the reconventional demand and granted the motion to strike it. We therefore affirm this part of the trial court's ruling.
Appellants also claim however that even if they made a claim that was improperly cumulated with the appellees' petition for executory process, the trial court erred by not severing these improperly cumulated claims into a new suit. We agree.
If a party has improperly cumulated actions, La. C.C.P. art. 464, in pertinent part, provides that:
Further, in Mortgage Electronic Registration Systems, Inc. v. Wells, 05-0795 (La.App. 4 Cir. 4/5/06), 930 So.2d 117, the Fourth Circuit reversed a trial court's dismissal of improperly cumulated claims when the trial court failed to sever those claims. In Mortgage Electronic Registration Systems, after an alleged default, a mortgagor filed a petition for executory process. Id. at 119. In response, the mortgagee filed a petition for damages and for an injunction. Id. The mortgagor filed an exception of improper cumulation of actions which the trial court granted. The trial court then dismissed the mortgagor's entire action. Id. On appeal, the Fourth Circuit reversed the trial court's dismissal and ruled that:
Id. at 120.
The Fourth Circuit thereafter remanded the case to the trial court for further proceedings. See also Deutsche Bank Trust Co. America v. Ochoa, supra; and, Bank of New York Mellon v. Smith, 11-60 (La. App. 3 Cir. 6/29/11), 71 So.3d 1034, 1047, writ denied, 11-2080 (La.11/18/11), 75 So.3d 462 (stating that, under La. C.C.P. art. 464, when cumulation is improper, the trial court should sever, not dismiss, the improperly filed claims).
Here, with regard to appellants' reconventional demand, although the trial court correctly sustained the exceptions and granted the motion to strike, we find that the trial court erred thereafter by dismissing the appellants' claims for damages. Accordingly, we reverse the judgment dismissing appellants' reconventional demand and order that the trial court sever appellants' reconventional demand from the executory proceedings.
In their final assignment of error, appellants argue the trial court erred in sustaining the appellees' exception of no cause of action. Appellants contend they stated causes of action in their claims of wrongful foreclosure and failure to negotiate under the covenants of "good faith and fair dealing," as well as their claim challenging the constitutionality of Louisiana's executory process.
These claims were not at issue, however, on the appellees' exception of no cause of action. In support of that exception, appellees only argued that appellants' claim under the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1409 ("LUTPA") had failed to state a cause of action. Therefore, that was the only issue to be decided by the trial court.
On review, we find that the trial court did not sustain the exception of no cause of action as to appellants' claims of wrongful foreclosure, failure to negotiate under the covenants of good faith and fair dealing, or to appellants' constitutional challenge to Louisiana's executory process. The trial court's judgment only sustained the exception of no cause of action as to appellants' LUTPA claim under La. R.S. 51:1409.
This court reviews only issues that have been submitted to the trial courts. Uniform Rules of Louisiana Courts of Appeal, Rule 1-3. Here, the appellants assign as error an issue that was not part of the trial court's judgment. Therefore, we find appellants' final assignment of error to be without merit.
For these reasons, with respect to appellant's reconventional demand, we affirm the trial court's sustain of appellees' exceptions of improper cumulation of actions and unauthorized use of summary process and grant of the motion to strike. However, we reverse the trial court's dismissal of appellants' reconventional demand and remand with instructions to allow the appellants to sever those claims into a new suit. As to appellants' injunction, we reverse the trial court's sustain of the exception of insufficiency of service of process and dismissal. We remand the injunction for further proceedings consistent with this opinion.
