     Case: 15-30739      Document: 00513539717         Page: 1    Date Filed: 06/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                      No. 15-30739                           FILED
                                                                          June 8, 2016
                                                                        Lyle W. Cayce
ANNIE CAVALIER,                                                                   Clerk



              Plaintiff - Appellant

v.

NATIONSTAR MORTGAGE, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-702


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Annie Cavalier appeals the district court’s dismissal of her claims where
she objected to Nationstar Mortgage’s foreclosure action in Louisiana state
court. The state court ordered a writ of seizure and sale and despite Cavalier’s
objections, Nationstar purchased the subject property at a sheriff sale.
Cavalier alleged in the state court action that Nationstar was fraudulent in
the executory process.        She brings the same fraud allegation on appeal,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-30739
asserting various reasons why her damages claim is not barred by res judicata.
Cavalier’s reasons are meritless because, as reiterated by the Louisiana Fourth
Court of Appeal: “where an order of executory process has become final and
nonappealable, the doctrine of res judicata is applicable and precludes recovery
of damages for wrongful seizure of property.”       Countrywide Home Loans
Servicing, LP v. Thomas, 782 So.2d 355, 653 (La. App. 4 Cir. 2013).
      In its analysis, the district court properly concluded that because the
damages claim is based on the same previous allegation of fraud, the provision
of res judicata applicable to the instant case is issue preclusion. The issue
preclusion provision of Louisiana’s res judicata statute states that a valid and
final judgment between the same parties “in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action between them, with respect
to any issue actually litigated and determined if its determination was
essential to that judgment.” La. Rev. Stat. Ann. § 13:4231.
      Without dispute, the first two requirements are met – there is a final
judgment between the same parties. First, the parties are the same since
Nationstar and Cavalier were parties to both the state court action and the
instant action. Next, the writ of seizure and sale signed by the state court
judge is a final judgment. See La. Rev. Stat. Ann. § 13:4231, cmt. (d)(1990)
which states:
      To have any preclusive effect a judgment must be valid, that is, it
      must have been rendered by a court with jurisdiction over subject
      matter and over parties, and proper notice must have been given.
      The judgment must also be a final judgment, that is, a judgment
      that disposes of the merits in whole or in part. The use of the
      phrase “final judgment” also means that the preclusive effect of a
      judgment attaches once a final judgment has been signed by the
      trial court and would bar any action filed thereafter unless the
      judgment is reversed on appeal.



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                                  No. 15-30739
      Finally, Cavalier argues that the fraud issue was never ruled on.
However, as appropriately explained by the district court, the “actually
litigated” requirement of the statute is also met. The court reasoned that
Cavalier’s assertion of fraud was argued twice in her motions for injunctive
relief, yet the state court still granted the writ of seizure and sale. The district
court disposes of this contention by quoting Louisiana Second Court of Appeal:
      The legal effect of the silence of a judgment on any part of a
      demand that might have been allowed under the pleadings is a
      rejection of such part of the demand, which tacit rejection has the
      force and effect of res judicata against subsequent suit for such
      part of the demand.

Ken Law Builders, Inc. v. Delaney, 840 So.2d 672, 675 (La. App. 2 Cir. 2003).
Thus, under Louisiana law, the state court’s silence on the fraud issue is a
rejection of that issue.
      Consequently, a signed final judgment between the same parties on a
previously litigated issue amounts to res judicata barring Cavalier’s claims.
      AFFIRMED.




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