IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30279

Summary Calendar

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

v.

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

Appeal from the United States District Court 

for the Western District of Louisiana

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2019

Lyle W. Cayce

Clerk

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Before KING, GRAVES, and WILLETT, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Appellants 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 AFFIRM. 

I.

Appellants 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 

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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. 

II.

“We 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)). 

III.

Appellants 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. 

First, 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. 

Appellants 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 

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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). 

Appellants 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).1 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. 

Under 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. 

 

1 Although the SCRA does not define “default judgment,” see § 3911 (“Definitions”), 

the phrase is generally understood as distinct from “judgment.” “Default judgment” generally 

means “a judgment entered by the Court as a penalty against a party for failure to appear or 

otherwise to perform a procedurally required act.” Anchorage Assocs. v. V.I. Bd. of Tax 

Review, 922 F.2d 168, 174 n.3 (3d Cir. 1990) (citation and internal quotation marks omitted); 

see also FED. R. CIV. P. 55(a) (“When a party against whom a judgment for affirmative relief 

is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 

otherwise, the clerk must enter the party’s default.”). 

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In fact, Appellants conceded this. In opposing Bank of America’s motion to 

dismiss, Appellants “agree[d] 100%” that “Section 3931 does not apply to 

proceedings enforcing [valid] confessions of judgments.” For all these reasons, 

Appellants’ first argument is unavailing. 

Second, Appellants argue that 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, specifically, 50 U.S.C. § 3918, 

which provides the requirements for a valid waiver of SCRA protections. This 

argument is moot. As determined above, § 3931 does not apply to Louisiana 

executory proceedings where the debtor has confessed judgment.2 SCRA’s 

waiver requirements are therefore inapplicable because there is nothing to 

waive here; Appellants were never protected under § 3931 against seizures and 

sales ordered through Louisiana executory proceedings.3 

IV.

For the foregoing reasons, we AFFIRM. 

 

2 Appellants do not argue that the confessions of judgment are invalid based on a law 

other than the SCRA. 

3 The court need not address Appellees’ additional and alternative arguments in 

support of the dismissal of Appellants’ claims. 

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