BERRY v. WELLS FARGO BANK NA MERS LSF10 LLC LLC SLS LSF10 LLC 100 (2025)

Pro se plaintiffs/appellants, Darrell Berry and Constance Lafayette (“plaintiffs”), appeal the district court's July 1, 2024 judgment, which denied their demand to strike exceptions of vagueness, lis pendens, and improper cumulation of actions previously filed by defendants/appellees, Fay Servicing, LLC and Caliber Home Loans, Inc. For the following reasons, we dismiss the appeal for lack of appellate jurisdiction and decline to convert the matter to an application for supervisory writs.

FACTS AND PROCEDURAL HISTORY

On December 27, 2005, plaintiffs borrowed $184,000.00 from LoanCity and, in return, executed a Promissory Note, agreeing to repay the amounts borrowed in monthly installments of principal and interest, in accordance with the terms of the Note. The Note was secured by a Mortgage, also executed on December 27, 2005, encumbering property located at 8338 Greenmoss Drive in Baton Rouge, Louisiana. On November 6, 2012, the Mortgage was assigned to Wells Fargo Bank, N.A. (“Wells Fargo”).

Before the filing of the subject lawsuit, plaintiffs defaulted on the Note and Mortgage. Pursuant to the terms thereof, on or about April 10, 2017, Wells Fargo instituted an executory process seeking a seizure and sale of the property in an action styled Wells Fargo Bank, N.A. v. Darrell Kendrick Berry and Constance Lafayette Berry, Suit No. 656991, Section 22 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. The original Note, a certified copy of the Act of Mortgage, and loan modification agreement were attached thereto. The district court, finding that Wells Fargo met the requirements for foreclosure, issued an order authorizing executory process. Further, a writ of seizure and sale was issued by the district court. However, the sheriff's sale was continually delayed and cancelled by various lawsuits and bankruptcy proceedings filed by plaintiffs.

Nevertheless, in conjunction with their belief that the procedure required by law for filing the petition for executory process was not properly followed, plaintiffs subsequently filed a Petition for Injunction and Damages, under Suit No. 724405 in the Nineteenth Judicial District Court, on October 7, 2022. In this petition, plaintiffs named numerous defendants, including the instant appellees, Fay Servicing and Caliber Home Loans, LLC, as well as various other lending institutions, such as Wells Fargo, mortgage servicers, and individual attorneys representing these entities. On November 14, 2022, Fay Servicing, LLC and Caliber Home Loans, Inc. filed exceptions of vagueness, lis pendens, and improper cumulation, claiming, generally, that plaintiffs’ petition should be dismissed as an identical matter was pending before the district court, that plaintiffs improperly cumulated executory and ordinary proceedings, and that their petition is impermissibly vague and ambiguous. On March 18, 2024, plaintiffs filed a demand to strike the exceptions filed by Fay Servicing, LLC and Caliber Home Loans, Inc. The matter came for hearing on May 13, 2024, at which time the district court denied plaintiffs’ demand. Plaintiffs now appeal from this ruling.

DISCUSSION

As an appellate court, we have the duty to examine our subject matter jurisdiction and to determine sua sponte whether such subject matter jurisdiction exists, even when the issue is not raised by the litigants. Wells v. Mentorship Steam Academy as Part of Helix Community Schools, 2023-1112 (La. App. 1st Cir. 4/19/24), 2024 WL 1697437, *1 (unpuiblished). This court cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. Doctors for Women Medical Center, L.L.C. v. Breen, 2019-0582 (La. App. 1st Cir. 5/11/20), 303 So.3d 667, 671. A final judgment is appealable in all cases in which appeals are given by law, while an interlocutory judgment is appealable only when expressly provided by law. La. Code Civ. P. art. 2083. An interlocutory judgment does not determine the merits, but only preliminary matters in the course of the action, while a final judgment determines the merits in whole or in part. La. Code Civ. P. art. 1841.

A motion to strike ¹ is provided for in La. Code Civ. P. art. 964, which states, “[t]he court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.” A motion to strike is not an authorized or proper way to procure the dismissal of a complaint or cause of action. State by and through Caldwell v. Teva Pharmaceuticals Industries, Ltd., 2017-0048 (La. App. 1st Cir. 2/8/18), 242 So.3d 597, 607. A motion to strike is a means of cleaning up the pleadings, not a means of eliminating causes of action or substantive allegations. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 2001-345 (La. App. 3d Cir. 6/20/01), 790 So.2d 93, 98, writ denied, 2001-2115 (La. 7/26/01), 794 So.2d 834. Furthermore, the trial court's ruling on a motion to strike is interlocutory in nature and, generally, is not appealable. See La. Code Civ. P. arts. 1841 and 2083; see also Teva Pharmaceuticals, 242 So.3d 597 at 607 & Louisiana Safety Ass'n of Timbermen v. Carlton, 2012-0775 (La. App. 1st Cir. 12/21/12), 111 So.3d 1076, 1081, n.3.

The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writs. La. Code Civ. P. art. 2201. When a party improperly appeals a non-appealable interlocutory judgment, this court has discretion to convert that appeal to an application for supervisory writs; however, this court may only do so if the appeal would have been timely had it been filed as a supervisory writ. Jones v. Fogg, 2024-1048 (La. App. 1st Cir. 5/30/25), 413 So.3d 580, 583, writ denied, 2025-01069 (La. 11/19/25), 420 So.3d 1186. A supervisory writ must be filed within thirty days of notice of judgment. See La. URCA, Rules 4-2 and 4-3. When the interlocutory judgment is rendered in open court, its rendition constitutes notice to all parties, unless certain exceptions apply. La. Code Civ. P. art. 1914(A); Fogg, 413 So.3d at 583. Those exceptions are, if the trial court orders that an interlocutory judgment be reduced to writing, or if the trial court takes the interlocutory matter under advisement, or if a party requests that the interlocutory judgment be reduced to writing within ten days of its rendition in open court. La. Code Civ. P. art. 1914(B).

In the instant matter, and at the May 13, 2024 hearing on plaintiffs’ demand to strike, the district court denied plaintiffs’ demand and expressly ordered this ruling to be reduced to writing. A judgment was subsequently signed to this effect on July 1, 2024. Later, on July 25, 2024, plaintiffs timely filed a notice of intent to seek an appeal, among other matters,² the district court's denial of their demand to strike. Further, and following an amended order from the district court, plaintiffs were granted an appeal concerning this ruling on October 22, 2025.

Although this court could convert this matter to an application for supervisory writs, we decline to do so. This court has discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39. Pursuant to Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam), appellate courts should consider an application for supervisory writs when the trial court judgment is arguably incorrect, there is no dispute of fact to be resolved, and a reversal would terminate the litigation. We find that the Herlitz factors are not met at this time. Specifically, plaintiffs’ claims against Fay Servicing, LLC and Caliber Home Loans, Inc. have already been dismissed with prejudice by a separately signed July 1, 2024 judgment, which granted those defendants’ exceptions of no cause of action and prescription. As such, plaintiffs’ litigation against Fay Servicing, LLC and Caliber Home Loans, Inc. has already terminated, will allegedly be subject of a separate appeal with this court, and, therefore, no such relief can be granted by this court at this time. Therefore, we decline to exercise our discretion to convert this instant appeal to an application for supervisory writs, and we dismiss the appeal for lack of appellate jurisdiction.³

CONCLUSION

For the foregoing reasons, we dismiss plaintiffs/appellants, Darrell Berry and Constance Lafayette's, appeal of the district court's July 1, 2024 judgment which denied their demand to strike the exceptions of vagueness, lis pendens, and improper cumulation previously filed by defendants/appellees, Fay Servicing and Caliber Home Loans, Inc. All costs of this appeal are assessed to plaintiffs/appellants, Darrell Berry and Constance Lafayette.

APPEAL DISMISSED; MOTIONS FOR SANCTIONS DENIED AS MOOT; MOTION TO STAY PROCEEDINGS DENIED AS MOOT; MOTION TO SUBSTITUTE COUNSEL DENIED AS MOOT.

FOOTNOTES

1.   While we note that plaintiffs styled their underlying pleading as a “demand” to strike, Louisiana courts look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding. See O'Brock v. White, 2018-1345 (La. App. 1st Cir. 4/12/19), 276 So.3d 178, 183, writ denied, 2019-00750 (La. 10/15/19), 280 So.3d 599. While plaintiffs could have simply filed an opposition to the various exceptions, based on the substance of plaintiffs’ pleading, their request to “strike defendants’ exception of vagueness, lis pendens and improper cumulation from the record” would best be styled as a motion to strike.

2.   Plaintiffs have likewise sought appellate review of the district court's (1) denial of a demand to strike exceptions of vagueness, lis pendens, and improper cumulation filed by defendant, US Bank Trust National Association Solely as Trustee for LSF10 Master Participation Trust, Mortgage Electric Registration System, Inc., and LSF10 Mortgage Holdings, LLC, (2) grant of exceptions of no cause of action and prescription filed by defendants, Fay Servicing, LLC, Caliber Home Loans, Inc., and US Bank Trust National Association as Trustee for LSF10 Master Participation Trust, Mortgage Electric Registration System, Inc., and LSF10 Mortgage Holdings, LLC, as well as (3) a grant of an exception of res judicata filed by defendant, Specialized Loan Servicing, LLC. These three separately signed judgments were issued by the district court on July 1, 2024, and plaintiffs have been granted an appeal in each separate matter.

3.   Plaintiffs have filed numerous motions with this court, including: (1) Motion for Sanctions against Wells Fargo, N.A. attorney Christopher D. Meyer, (2) Motion for Sanctions against Specialized Loan Servicing, LLC, (3) Motion for Sanctions against Mortgage Electric Registration System, Inc., Fay Servicing, LLC, Caliber Home Loans, Inc., and U.S. Bank Trust, N.A. as Trustee for LSF10 for Master Participation Trust and Mortgage Holdings, LLC, (4) Motion for Sanctions against Dean Morris, and (5) Motion to Stay Proceedings. Additionally, Specialized Loan Servicing, LLC has filed a Motion to Substitute Counsel. Based on this court's lack of appellate jurisdiction, as well as our decision to decline to covert the appeal to an application for supervisory writs, all of the foregoing motions are denied as moot.

WOLFE, J.