STEVEN D. FODGE, Individually and as representative on behalf of all similarly situated persons; JOSEPH E. CAREY, Individually and as representative on behalf of all similarly situated persons; JON A. TOKAY, Individually and as representative on behalf of all similarly situated persons; PAMELA R. JEFFCOAT, Individually and as representative on behalf of all similarly situated persons; ANDREW J. KALTENMARK, Individually and as representative on behalf of all similarly situated persons; LANCE K. INOVEJAS, Individually and as representative on behalf of all similarly situated persons; DEBORAH A. INOVEJAS, Individually and as representative on behalf of all similarly situated persons, Plaintiffs - Appellants
TRUSTMARK NATIONAL BANK; OCWEN LOAN SERVICING, L.L.C.; BARKSDALE FEDERAL CREDIT UNION; PENNYMAC LOAN SERVICES, L.L.C.; BANK OF AMERICA, N.A.; PHH MORTGAGE CORPORATION, Defendants - Appellees
from the United States District Court for the Western
District of Louisiana
KING, GRAVES, and WILLETT, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE
Steven D. Fodge, Joseph E. Carey, Jon. A. Tokay, Pamela R.
Jeffcoat, Andrew J. Kaltenmark, Lance K. Inovejas, and
Deborah A. Inovejas appeal from the district court's
orders granting Appellees Ocwen Loan Servicing, LLC;
Barksdale Federal Credit Union; Pennymac Loan Services,
L.L.C.; Bank of America, N.A.; and PHH Mortgage
Corporation's motions to dismiss and Appellee Trustmark
National Bank's motion for judgment on the pleadings. We
brought a putative class action at the district court,
alleging that they and similarly situated individuals were on
active duty with the military when Appellees variously
foreclosed on their properties through executory proceedings
in Louisiana state courts based on mortgage, privilege, or
security agreements each plaintiff and putative class member
had entered with one of the defendants. Appellants conceded
that each of their agreements contained a clause importing a
confession of judgment. Nonetheless, Appellants alleged that
Appellees' foreclosure actions were in violation of the
Servicemembers Civil Relief Act (SCRA), 50 U.S.C. §
3901, et seq., which provides active duty
servicemembers with protections against default judgment
absent a waiver that meets certain requirements. 50 U.S.C.
§§ 3931 (setting out protections against default
judgment) and 3918 (providing the requirements for waiving
SCRA protections). Appellants sought damages and declaratory
and injunctive relief on behalf of themselves and the
putative class. Each appellee, except for Trustmark National
Bank, filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). The district court granted the
motions, dismissing the claims against these appellees with
prejudice. Subsequently, Trustmark National Bank filed a
motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c), arguing that the claims against it
were nearly identical to the claims filed against the other
defendants. The district court also granted this motion and
dismissed the remaining claims with prejudice.
review dismissals under Rule[s] 12(b)(6) and 12(c) de
novo." Magee v. Reed, 912 F.3d 820, 822 (5th
Cir. 2019). The standard for dismissal under Rules 12(b)(6)
and 12(c) is the same: "To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face." Edionwe v. Bailey, 860 F.3d 287, 291
(5th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
argue that (1) the state court orders authorizing seizure and
sale of Appellants' respective properties through
executory proceedings constitute default judgments under the
SCRA and (2) they did not waive their right to SCRA
protections against default judgment because their
confessions of judgment do not constitute proper waivers
under the SCRA. These are matters of first impression in this
and other circuits. We address each argument in turn.
Appellants' argument that the state court orders
authorizing seizure and sale of Appellants' respective
properties constitute default judgments under the SCRA is
unavailing. As explained below, 50 U.S.C. § 3931 does
not encompass Louisiana executory proceedings where, as here,
the debtors confessed judgment.
rely on two sections of the SCRA-50 U.S.C. §§ 3931
and 3911-to support their argument. Section 3931 is entitled
"Protection of servicemembers against default
judgments" and "applies to any civil action or
proceeding, including any child custody proceeding, in which
the defendant does not make an appearance." §
3931(a). Section 3931 requires, among other things, that a
plaintiff file an affidavit stating whether a defendant is in
military service and that courts appoint an attorney to
represent defendants in military service. § 3931(b).
argue that § 3911's definition of
"judgment" applies to § 3931. Section 3911
defines "judgment" as "any judgment, decree,
order, or ruling, final or temporary." §
3911(9). This definition, even if relevant to
§ 3931, is unavailing. Section 3931 states that it
applies to proceedings "in which the defendant does not
make an appearance." § 3931(a). Appellants
necessarily made an appearance at the respective executory
proceedings through their confessions of judgment.
Louisiana law, an executory proceeding is an expedited in
rem civil action. Hood Motor Co., Inc. v.
Lawrence, 320 So.2d 111, 112-13 (La. 1975). Louisiana
law defines such proceedings as "those which are used to
effect the seizure and sale of property, without previous
citation and judgment, to enforce a mortgage or privilege
thereon evidenced by an authentic act importing a confession
of judgment, and in other cases allowed by law." La.
C.C.P. Art. 2631. By virtue of a confession of judgment, a
debtor in an executory proceeding "has appeared in the
suit, and answered the demand." Marbury v.
Pace, 29 La. Ann. 557, 558-59 (La. 1877); Buckner v.
Carmack, 272 So.2d 326, 331 (La. 1973) (same). Thus,
§ 3931 does not apply to Louisiana executory proceedings
where, as here, the debtors have confessed judgment. In fact,
Appellants conceded this. In opposing Bank of America's