Heisler v. Girod LoanCo, LLC et al

Filing 16

ORDER AND REASONS: IT IS HEREBY ORDERED that the #12 motion to dismiss for lack of subject matter jurisdiction, filed by Girod LoanCo, LLC and Girod REO, LLC, is GRANTED. Plaintiff's claims against Girod LoanCo, LLC and Girod REO, LLC, are DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan on 9/9/2021. (pp)

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 1 of 10

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REGINA HEISLER, AS THE
EXECUTRIX OF THE SUCCESSION
OF FREDERICK P. HEISLER,
Plaintiff

CIVIL ACTION
No. 21-1343

VERSUS
SECTION “E”(5)

GIROD LOANCO, LLC, ET AL.,
Defendants
ORDER AND REASONS

Before the Court is a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1), filed by Defendants Girod LoanCo, LLC (“LoanCo) and Girod REO, LLC (“REO”)
(collectively “Girod”).1 Plaintiff Regina Heisler filed an opposition.2
For the reasons stated below, Girod’s motion to dismiss is GRANTED.
BACKGROUND
Plaintiff’s complaint filed in this Court alleges injuries connected with several state
court judgments.3 An account of the series of state court actions between Plaintiff, Girod
LoanCo, LLC (“LoanCo”) and Girod REO, LLC (“REO”) is warranted.
Federal Deposit Insurance Corporation, as receiver for First NBC Bank, sold
LoanCo seven promissory notes executed by Plaintiff.4 The obligations on six of the notes
were secured by multiple indebtedness mortgages on immovable property owned by
Plaintiff and located at 4041 Williams Boulevard, Kenner, Louisiana, and 836–844
Baronne Street, New Orleans, Louisiana.5

R. Doc. 12.
R. Doc. 13-1.
3 See R. Doc. 1.
4 R. Doc. 1.
5 R. Doc. 12-1 at p. 3.
1

2

1

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 2 of 10

After Plaintiff defaulted on the notes, LoanCo sought to foreclose the mortgages on
4041 Williams and 844 Baronne.6 LoanCo filed a verified petition for foreclosure by
executory process in the 24th Judicial District Court for the Parish of Jefferson, State of
Louisiana (“the foreclosure lawsuit”).7 The 24th JDC signed an order of seizure and sale
on June 21, 2019.8 Thereafter, the Sheriff of Jefferson Parish, Louisiana, seized 4041
Williams and set it for Sheriff’s sale on October 9, 2019.9 REO was the highest bidder at
the Sheriff’s sale and the Sheriff executed a proces verbal deed to REO, which was
recorded in the public records on October 26, 2019.10 844 Baronne was seized, but the
sale of that property was interrupted when Heisler filed a Notice of Removal in the United
States District Court for the Eastern District of Louisiana.11 The case was remanded back
to the 24th JDC, and LoanCo was awarded attorney fees because “[Heisler] did not have
an objectively reason basis for seeking removal.”12 Upon remand, the sale of 844 Baronne
was further delayed due to the effects of the COVID-19 pandemic. The sale was set to
proceed on August 27, 2020, but was further delayed because, on that same day, Plaintiff
filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the
Eastern District of Louisiana.13 Plaintiff’s bankruptcy proceeding was eventually
converted to a Chapter 7 proceeding.14 With the approval of the bankruptcy court, the
Chapter 7 trustee sold 844 Baronne to REO.15

Id.
See R. Doc. 1 at ¶ 34; R. Doc. 1 at p. 60. The state court foreclosure lawsuit is styled Girod LoanCo, LLC v.
Regina B. Heisler, Individually and as the Succession Representative/Executrix of the Succession of
Frederick P. Heisler, No. 793-014 “D,” Jefferson Parish, State of Louisiana.
8 See R. Doc. 12-2.
9 See id.
10 See id.
11 See Girod LoanCo, LLC, v. Heisler, No. 19-13150 “G(2)” at R. Doc. 1.
12 See id. at R. Doc. 17 (E.D. La. Dec. 23, 2019).
13 See In re Regina Berglass Heisler, No. 20-bk-11509 (Bankr. E.D. La.).
14 Id. at R. Doc. 51.
15 Id. at R. Doc. 322.
6
7

2

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 3 of 10

The obligation on the seventh note was secured by funds from a pledged Schwab
brokerage account (the “Schwab funds”).16 Plaintiff and LoanCo made competing claims
to the Schwab funds.17 In May 2018, Charles Schwab & Co. filed a concursus action in the
Civil District Court for the Parish of New Orleans (“CDC”) to determine ownership of the
Schwab funds (the “concursus action”).18 On September 5, 2019, the CDC granted
summary judgment in favor of LoanCo and against Plaintiff, finding that LoanCo had the
superior claim to the Schwab funds.19 On that same date, the CDC signed and entered a
final judgment in favor of LoanCo.20 Plaintiff did not seek review of the CDC’s ruling
through the Louisiana appellate court system.
Plaintiff instituted the instant action by filing her complaint on July 14, 2021.21 In
her complaint, Plaintiff alleges that all state court actions by LoanCo against “Heisler
properties” must be “vacated nunc pro tunc.”22 Plaintiff’s complaint seeks a declaratory
judgment from this Court that Girod has “no right to seek aid from Louisiana Courts of
law to plunder Regina Heisler.”23 Plaintiff further seeks a declaratory judgment that
“Girod did not have the right to present and [sic] judicial demands before any court of
this state,” and that after such declaration, Plaintiff “will have the right to claw-back all
properties illegally taken.”24 Specifically, Plaintiff states this court has subject matter
jurisdiction “to declare that all actions by LoanCo stemming from the foreclosure lawsuit
filed in the 24th Judicial District Court . . . are nullities for lack of in personam

R. Doc. 1 at ¶ 35; R. Doc. 12-1 at p. 5.
R. Doc. 12-1 at p. 4.
18 The. Concursus action is styled Charles Schwab & Co, Inc. v. Girod LoanCo, LLC & Regina B. Heisler,
No. 2018-4693 “N,” Civil District Court for the Parish of Orleans, State of Louisiana.
19 R. Doc. 12-4.
20 Id.
21 See R. Doc. 1.
22 R. Doc. 1 at ¶ 110
23 Id. at ¶ 18.
24 R. Doc. 2 at ¶ 30.
16
17

3

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 4 of 10

jurisdiction,”25 and “to declare that all actions by LoanCo presenting judicial demands for
the $2.1 million in the Registry of the [Civil District Court for the Parish of Orleans, State
of Louisiana in the concursus action] are nullities for lack of in personam jurisdiction.”26
Plaintiff’s complaint also asks this Court to order a return to the Succession of both 4041
Williams Boulevard and 844 Baronne Street.27 The complaint also seeks a sequestration
of the rents from 4041 Williams, specifically asking this Court to “order that the rents be
deposited to the Registry of the Court pending rulings in Civil Action 21-724.”28
LEGAL STANDARD
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.”29 A motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction.30
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the case.”31 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the disputed facts.”32
The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction.33 The
court’s dismissal of a case for lack of subject matter jurisdiction is not an adjudication on

R. Doc. 1 at ¶ 34.
Id. at ¶ 35.
27 Id. at ¶ 36.
28 Plaintiff’s claims against Girod in Case No 21-724 have been dismissed with prejudice. As a result, this
claim
29 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
30 FED. R. CIV. P. 12(b)(1).
31 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
32 In re FEMA, 668 F.3d at 287.
33 Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).
25

26

4

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 5 of 10

the merits of the plaintiff’s case and the decision does not prevent the plaintiff from
pursuing a claim in a court that does have jurisdiction.34
LAW AND ANALYSIS
In its motion to dismiss pursuant to Rule 12(b)(1), Girod argues the Court lacks
subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. Under the RookerFeldman doctrine, federal courts lack subject matter jurisdiction in “cases brought by
state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and
rejection of those judgments.”35 Lower federal courts “do not have the power to modify or
reverse state court judgments.”36 A plaintiff “cannot circumvent this jurisdictional
limitation by asserting claims not raised in the state court proceedings or claims framed
as original claims for relief, if these claims are ‘inextricably intertwined’ with a state
judgment.”37 If a federal district court “is confronted with issues that are ‘inextricably
intertwined’ with a state judgment, then the court is ‘in essence being called upon to
review the state-court decision,’ and the originality of the district court’s jurisdiction
precludes such a review.”38 However, the Rooker-Feldman doctrine does not preclude a
district court’s jurisdiction over an “independent claim,” even if it is “one that denies a
legal conclusion that a state court has reached.”39

Id.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005) (citing Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983)).
36 Union Planters Bank Nat. Ass’n. v. Salih, 369 F.3d 457, 462 (5th Cir. 2004) (quoting Matter of Reitnauer,
152 F.3d 341, 343 (5th Cir. 1998)).
37 Turner v. Cade, 354 F. App’x 108, 111 (5th Cir. 2009) (unpublished) (citing U.S. v. Shepherd, 23 F.3d 923
(5th Cir. 1994)).
38 Shepherd, 23 F.3d at 924 (quoting Feldman, 460 U.S. at 482 n. 16, 103 S.Ct. at 1315 n. 16).
39 Exxon Mobil, 544 U.S. at 293 (quoting GASH Assocs. V. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).
34
35

5

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 6 of 10

“[T]he Rooker–Feldman doctrine only applies insofar as a state court judgment
merits full faith and credit.”40 The question is whether the order or judgment at issue “was
a final state court judgment in a particular case.”41 Louisiana Code of Civil Procedure
article 1841 provides that “[a] judgment that determines the merits in whole or in part is
a final judgment.”42 Plaintiff complains about the judgment in the concursus action and
about the seizure and sale order in the foreclosure action.43 In the concursus action, the
CDC granted LoanCo’s motion for summary judgment and signed a “Final Judgment.”44
This was a judgment on the merits in favor of LoanCo, finding that LoanCo had the better
claim to the Schwab funds, thereby resolving the concursus action in full.45 In the
foreclosure action, the seizure and sale order is also a final judgment. Under Louisiana
law, there are only two avenues for objection to an executory process proceeding: (1) by
filing an injunction to arrest the seizure and sale, or (2) by filing a suspensive appeal from
the order of seizure and sale.46 Plaintiff has failed to avail herself of either of these two
avenues. Moreover, Plaintiff sought writs from the Louisiana Supreme Court with respect
to the foreclosure action, and the Louisiana Supreme Court denied the writs. Plaintiff also
filed a Petition for Certiorari in the United State Supreme Court, which was also denied.
The 24th JDC’s seizure and sale order is now final.
Under the Rooker-Feldman doctrine, the Court must determine whether this is a
case (1) brought by a state court loser (2) complaining of injuries caused by state court
judgments, (3) such judgments were rendered before the federal district court

Union Planters Bank Nat. Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).
Id. at 461 (quoting Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983)).
42 La. C. Civ. P. art. 1841.
43 See R. Doc. 1.
44 See R. Doc. 12-4.
45 See id.
46 La. C. Civ. P. art. 2642. See also Antoine v. Chrysler Fin. Corp., 782 So.2d 651, 652 (La. Ct. App.2001).
40
41

6

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 7 of 10

proceedings began, and (4) inviting the federal district court to review and reject state
court judgments.47
The first and third elements are plainly met in this case. Plaintiff is a state court
loser in both the foreclosure action and the concursus action.48 The judgments in both
actions were rendered before the instant proceedings were commenced. Plaintiff
instituted this action on July 14, 2021.49 In the foreclosure action, the seizure and sale
order was signed in June 2019, and the property was seized and sold in October 2019.50
In the concursus action, the final judgment in favor of LoanCo was signed in September
2019.51
As to the second element, the very essence of Plaintiff’s complaint is that the state
court judgments and the Sheriff’s sale of 4041 Williams caused her injuries—injuries she
asks this Court to redress.52 The complaint alleges “the wrongful actions asserted herein
violated the constitutional rights of the heirs of the Heisler Succession pursuant to the 1st,
5th, and 14th amendments to the United States Constitution and United States Supreme
Court precedent.”53 The complaint alleges the violations of the Supreme Court precedent
arise from actions of the presiding judge in the 24th JDC in connection with his “ordering
executory process on infirm pleadings.”54 The complaint also alleges LoanCo had no right
to seek aid from Louisiana courts to plunder Regina Heisler, and that LoanCo’s permitted
access to Louisiana courts amounted to a violation of United States Supreme Court

See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005) (citing Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983)).
48 See R. Doc. 12-2, 12-4.
49 R. Doc. 1.
50 R. Doc. 12-2, 12-3.
51 R. Doc. 12-4.
52 See R. Doc. 1.
53 R. Doc. 1 at ¶ 2.
54 Id. at ¶ 3.
47

7

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 8 of 10

precedent.55 The second element is met as Plaintiff alleges injuries arising from state court
judgments.
Finally, the fourth element is met because Plaintiff’s complaint—requesting that
this Court declare the foreclosure action and concursus action “nullities,” and her request
that this Court order a return to the succession of 4041 Williams and 844 Baronne—
invites this Court to review and reject state court judgments.
Rooker v. Fidelity Trust Co. was a suit commenced in federal district court by a
state court loser to have an adverse state court judgment of a state court “declared null
and void.”56 The state court loser in Rooker alleged the state court judgment was rendered
in violation of the Constitution of the United States.57 Because Congress vested only the
United States Supreme Court with appellate jurisdiction over state court judgments, the
Court in Rooker concluded that federal district courts lack appellate authority to review
state court judgment and dismissed the claims for lack of subject matter jurisdiction.58
Plaintiff filed the instant suit in federal district court seeking to nullify the
decisions rendered in the foreclosure action and the concursus action.59 As to the
foreclosure action, the complaint seeks a declaration from this Court “that all actions by
LoanCo stemming from the foreclosure lawsuit filed in the 24th Judicial District Court . .
. are nullities for lack of in personam jurisdiction.”60 As to the concursus action, the
Complaint seeks a declaration from this Court that “all actions by LoanCo presenting
judicial demands for the $2.1 million in the Registry of the [CDC] are nullities for lack of
in personam jurisdiction.”61
Id. at ¶¶ 4, 18.
263 U.S. 413 (1923).
57 Id. at 414.
58 Id. at 416.
59 See R. Doc. 1.
60 R. Doc. 1 at ¶ 34.
61 Id. at ¶ 35.
55

56

8

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 9 of 10

Like the state court loser in Rooker, Plaintiff here asks this Court to declare state
court judgments null. Plaintiff’s request that this Court declare null all actions of LoanCo
in the 24th JDC is an invitation to reverse the rulings of the 24th JDC. Had the 24th JDC
determined it lacked in personam jurisdiction, it would not have entered the seizure and
sale order in favor of LoanCo.62 For this Court to enter an order that the 24th JDC lacked
in personam jurisdiction, and that all such rulings in the foreclosure action are nullities,
would be a reversal of the rulings of the 24th JDC. Similarly, the requested relief with
respect to the concursus action is also an invitation to review and reverse the judgment of
the CDC in the concursus action.
Plaintiff also asks this Court to order a return to the Succession of both 4041
Williams and 844 Baronne.63 In District of Columbia Court of Appeals v. Feldman, two
graduates from non-ABA accredited law schools petitioned the District of Columbia Court
of Appeals to grant their applications for waivers of a court Rule that required D.C. bar
applicants to graduate from a law school approved by the ABA.64 When their waiver
applications were denied, the applicants sued the District of Columbia Court of Appeals
in federal district court.65 The applicants challenged the appellate court’s application of
the Rule to their specific requests, and also challenged the constitutionality of the Rule
itself.66 The United States Supreme Court held “to the extent that [the applicants] sought
review in the [federal] District Court of the District of Columbia Court of Appeals' denial
62 the foreclosure action in the 24th JDC, Plaintiff filed a motion to vacate order of executory process,
peremptory exception of no right of action, request for expedited hearing and motion to dismiss. In her
motion, Plaintiff argued that LoanCo “has not sought authorization to transact any business in Louisiana
and therefore cannot present any judicial demand to this Court.” On January 6, 2020, the 24th JDC entered
an order denying Plaintiff’s motion. Additionally, Plaintiff sought a supervisory writ in the Louisiana Fifth
Circuit Court of Appeal of the 24th JDC’s order. The Louisiana Fifth Circuit denied the writ application, and
her request for reconsideration. See Louisiana Fifth Circuit Court of Appeals Writ Denial, Case No. 20-C56, dated March 5, 2020.
63 R. Doc. 1 at ¶ 36.
64 460 U.S. 462 (1983).
65 Id.
66 Id.

9

Case 2:21-cv-01343-SM-MBN Document 16 Filed 09/09/21 Page 10 of 10

of their petitions for waiver, the District Court lacked subject-matter jurisdiction over
their complaints.”67 Furthermore, the Court held the federal district court lacked subject
matter jurisdiction over the applicants’ charge that the District of Columbia Court of
Appeals acted arbitrarily in denying their waiver applications because that charge was
“inextricably intertwined” with the appellate court’s decision to deny their applications.68
4041 Williams and 844 Baronne were seized pursuant to the 24th JDC’s seizure
and sale order. Both of the seized properties were eventually sold to REO. Ownership over
the properties is “inextricably intertwined” with the judgment of the 24th JDC in the
foreclosure action because REO came into ownership of the properties as a result of the
24th JDC’s seizure and sale order. It is inherent in the seizure and sale order that the 24th
JDC determined LoanCo had a right to seize 4041 Williams and 844 Baronne. A ruling
from this Court ordering REO to give the property back to the Succession would be
tantamount to overturning the rulings from the 24th JDC in the foreclosure action.
CONCLUSION
IT IS HEREBY ORDERED that the motion to dismiss for lack of subject matter
jurisdiction,69 filed by Girod LoanCo, LLC and Girod REO, LLC, is GRANTED. Plaintiff’s
claims against Girod LoanCo, LLC and Girod REO, LLC, are DISMISSED WITHOUT
PREJUDICE.
New Orleans, Louisiana, this 9th day of September, 2021.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Id. at 482.
Id. at 486–87.
69 R. Doc. 12.
67

68

10