Parham v. Nationstar Mortgage L L C et al

Filing 39

MEMORANDUM ORDER granting in part and denying in part 4 Motion to Remand. IT IS ORDERED that this matter is STAYED pending a ruling by the 26th JDC determining whether the Louisiana Code of Civil Procedure authorizes Gena Parham to assert the cla ims for relief sought in this matter in suit no. 143,494 (the foreclosure action). IT IS FURTHER ORDERED that the parties shall notify the court of the ruling no later than 14 days from the date of such ruling. Signed by Judge Elizabeth E Foote on 12/7/2015. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

GENA F. PARHAM

CIVIL ACTION NO. 14-3376

VERSUS

JUDGE ELIZABETH ERNY FOOTE

NATIONSTAR MORTGAGE, LLC, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
After removal from the 26th Judicial District Court of Louisiana, Plaintiff, Gena F.
Parham (''Parham''), moved to remand or stay this suit on the alternative bases of the

Rooker-Feldman Doctrine, the Anti-Injunction Act, Colorado River abstention, the
Declaratory Judgment Act, and Brillhard-Wilton abstention. [Record Document 4-1].
Finding that all of Parham's proffered grounds for remand or a stay were unavailing, the
Magistrate Judge issued a Report and Recommendation denying Parham's Motion. [Record
Documents 25 and 38]. All parties have filed responses to the Magistrate's Report and
Recommendation. [Record Documents 35, 36, and 38]. For the reasons stated herein, the
Court adopts the Report and Recommendation in all respects except for its findings
regarding Colorado River abstention. The Court therefore ORDERS a STAY of this matter
consistent with this Memorandum Order.

Factual Background
The following passage from the Magistrate's Report and Recommendation
summarizes the relevant facts in this case:
Plaintiff and her ex-husband were the owners of a lot and house in
Haughton, Louisiana. The property was subject to a mortgage in favor of
Nationstar [Mortgage, LLC, (''Nationstar'')]. Plaintiff alleges that she and her
husband, pursuant to the terms of the mortgage, provided Nationstar with
notice that they did not reside at the subject property and that all notices
and invoices/statements should be directed to them at address(es) in
Georgia. Plaintiff further alleges that she notified Nationstarthat her mother
was living at the mortgaged property.
Nationstar filed a petition for executory process in the Bossier Parish
state court, and a writ of seizure and sale was issued. Plaintiff alleges that
Nationstar did not provide her or her ex-husband with any notice of this
proceeding at their Georgia address(es). Nationstar asked the court to
appoint a curator ad hoc to receive notices in place of the Parhams, and the
order that appointed the curator listed separate Georgia addresses for each
of the Parhams as their last known addresses. Plaintiff represents that the
curator also failed to provide the Parhams notice of the proceedings.
Plaintiff alleges that Nationstar was simultaneously communicating
with her by email about a loan modification program. She states that
Nationstar repeatedly advised that her application was submitted and
pending, and the lender mislead her into the mistaken belief that the loan
modification was due to be granted and would allow her to preserve her
equity in the property.
The property was auctioned at a sheriff's sale in April 2014. Nationstar
bought the property, and it deeded the property to Freddie Mac several days
later. The clerk of court, presumably at the request of Freddie Mac, later
issued a writ of possession that directed the sheriff to compel parties in
possession of the property to vacate the premises. Plaintiff apparently
learned of the proceedings and filed in the executory process action a
"Petition to Annul Sale" that complained she was not served with the petition
by personal or domiciliary service or through the appointed curator. She soon
amended her petition and asked for and was granted a temporary restraining
order against the writ of possession. Nationstar and Freddie Mac responded
with a motion to strike and a number of procedural exceptions to Plaintiff
asserting her claims within the executory process; Nationstar also asserted
substantive defenses such as res judicata.

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Plaintiff then filed a second supplemental petition to annul the sheriff's
sale, and she set forth at greater length her allegations that she was not
provided adequate notice of the proceedings. She simultaneously filed a
stand-alone civil action that was commenced by filing a Petition to Annul
Sheriff's Sale and for Damages, which was assigned Case No. 145618. It is
the stand-alone case that was removed and is now before this court. The
parties report that the state court has yet to act upon the exceptions that
were filed within the executory process case that remains in state court.
Record Document 25, pp. 1-3.
Apparently, Parham sought relief in state court both through the initial foreclosure
action (''foreclosure action") 1 and the later standalone action (''standalone action") 2 because
part of Nationstar's defense against the foreclosure action was that the Louisiana Code of
Civil Procedure precluded Parham from asserting many of her claims (such as those for
damages) in a foreclosure action, meaning that she would need to file a separate action
in order for a state court to entertain those claims. Record Document 4-20, pp. 5-9.
Though Parham filed a response disputing this argument, she nonetheless simultaneously
filed the standalone suit "out of an abundance of caution" and with the stated intent of
seeking consolidation of both actions at a later date. Record Document 4-28, pp. 5-6.
There is nothing in the record to indicate that the state court has ruled on Nationstar's
procedural defenses.

1

See Nationstar Mortgage/ LLC v. Parham, No. 143,494 (La. 26th Jud. Dist. Ct.
filed Jan. 2, 2013).
2

See Parham v. Nationstar Mortgage/ LLC, No. 145,618 (La. 26th Jud. Dist. Ct.
filed Oct. 23, 2014).

Page 3 of 6

law and Analysis
The Report and Recommendation found that the Rooker-Feldman doctrine, the AntiInjunction Act, the Declaratory Judgment Act, and Brillhard-Wi!ton abstention all fail to
support either remand or a stay of this matter. The Court agrees. The Report and
Recommendation also found that Colorado River abstention did not justify remand or a
stay. Applying the six Colorado Riverfactors to this suit, the Magistrate found that three
factors (the assumption by either court over a res, the relative inconvenience of the
forums, and the adequacy of the state proceedings in protecting the rights of the party
invoking federal jurisdiction) were neutral, two factors (avoidance of piecemeal litigation
and the order in which jurisdiction was obtained) counseled for abstention, and one factor
(the presence of federal claims) 3 counseled against abstention. Record Document 25, pp.
5-6. Given the general presumption against surrendering jurisdiction and the extra weight
that courts accord to the federal-claims factor, see Moses H. Cone Mem'l Hosp. v. Mercury

Const Corp., 460 U.S. 1, 26, 103 S. Ct. 927, 942 (1983), the Magistrate determined that
· under Colorado River, the Court should not abstain from adjudicating this matter.
The issue is whether Colorado Riverapplies to this suit. Application of the six-factor

Colorado River test assumes that the Court is dealing with parallel actions.

African

Methodist Episcopal Church v. Lucien, 756 F.3d 788, 797-98 (5th Cir. 2014) ("As an initial

3

The disputed question of whether Parham asserted a federal claim by alleging in
her complaint that Defendants "violate[d] [her] constitutional rights as well as rights
afford by Louisiana law," Record Document 1-1, p. 5, is mooted by the Court's analysis
today. The Court therefore assumes, arguendo, that Parham alleged federal
constitutional claims in her complaint.
Page 4 of 6

step prior to application of the Colorado River factors ... we address whether [the state
court action] and AME's federal action are sufficiently parallel to make consideration of
abstention proper."). Actions.are parallel where they largely involve "the same parties and
the same issues." Id. (quoting Exxon Corp. v. St. Paul Fire & Marine Ins. Co., 129 F.3d
781, 785 (5th Cir.1997)).
Here, whether the foreclosure action and the standalone action are parallel turns on
whether the Louisiana Code of Civil Procedure permits the foreclosure action to serve as
the vehicle for adjudicating all of the claims for relief sought by Parham. If it does, then
the foreclosure action and the standalone action would involve the same claims and
parties,4 meaning they would constitute parallel actions and this matter would be subject
to Colorado River. But if it does not, then the foreclosure action and the standalone action
would involve different claims, meaning they would not be parallel and this matter would
not be subject to Colorado River.
Generally, a state court is best suited to answer questions turning on state law. See

Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 588-89 (5th Cir. 1992)
(''The federal courts ... often are not as well equipped for determinations of state law as
are state courts."). And in this instance the state court is also the forum at which the
parties directed their arguments on this outstanding Louisiana civil procedure question.

4

Though the record does not reveal whether Freddie Mac became a party to the
foreclosure action, the Court assumes its status as a party in the foreclosure action
because Parham moved to enjoin Freddie Mac in the foreclosure action from evicting
the Parhams from the property at issue.
Page 5 of 6

The Court should therefore wait to determine whether Colorado River urges abstention in
this matter until the state court can assure it that these suits are truly parallel.
Therefore, based on the foregoing,
IT IS ORDERED that Plaintiff's Motion To Remand, Record Document 4-1, insofar
as it seeks a stay of this matter, is GRANTED IN PART and, insofar as it seeks to remand
this matter, is DENIED.

IT IS FURTHER ORDERED that this matter is STAYED pending a ruling by the
26th Judicial District Court of Louisiana determining whether the Louisiana Code of Civil
Procedure authorizes Gena Parham to assert the claims for relief sought in this matter in
suit no. 143,494 (the foreclosure action).

IT IS FURTHER ORDERED that the parties shall notify the court of the ruling
specified above no later than fourteen (14) days from the date of such ruling.

JUS

DONE

;z;,2015.

AND~SIGNED, in Shreveport, Louisiana, on this 1
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