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Green Tree Servicing, LLC v. Edwards

Court of Appeals of Louisiana, Fifth Circuit

November 15, 2017

GREEN TREE SERVICING, LLC
v.
CAROLYN EDWARDS, BRENDA EDWARDS MAYS, AUGUST EDWARDS, KENNETH EDWARDS, SHARON EDWARDS WRIGHT, RALPH EDWARDS, WAYNE EDWARDS, ELTON EDWARDS, TERRY EDWARDS JACKSON, EMILE EDWARDS, TIMOTHY EDWARDS, AND THE UNITED STATES OF AMERICA

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 742-763, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, DITECH FINANCIAL, LLC FKA GREEN TREE SERVICING, LLC Rader Jackson Cris R. Jackson Tabitha Mangano

          COUNSEL FOR DEFENDANT/APPELLANT, CAROLYN EDWARDS Anthony Sartorio

          Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst

          ROBERT M. MURPHY JUDGE

         Defendant, Carolyn Edwards ("Carolyn"), has brought this appeal seeking reversal of a default judgment rendered against her and in favor of plaintiff, Ditech Financial LLC formerly known as Green Tree Servicing LLC (hereinafter "Green Tree"), in Green Tree's "Suit on Promissory Note and to Enforce Mortgage and for Declaratory Judgment." Carolyn also seeks reversal of an In Rem Judgment and Declaratory Judgment entered against the property located at 1311 Cook Street, Gretna, Louisiana on summary judgment. For the following reasons, we dismiss the appeal, in part, and affirm, in part.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         By cash sale deed, dated June 6, 1957, and recorded in the conveyance records of Jefferson Parish at Instrument Number 101872, Conveyance Book 426, Page 128, Rosabell Sullivan Edwards and her husband, August Edwards, acquired the following described immovable property located at 1311 Cook Street, Gretna, Louisiana (hereinafter "the Property"):

TWO A CERTAIN PIECE OF PORTION OF GROUND, TOGETHER WITH ALL THE BUIDLINGS AND IMPROVEMENTS THEREON, AND ALL OF THE RIGHTS, WAYS, PRIVILEGES, SERVITUDES, APPURTENANCES AND ADVANTAGES THEREUNTO BELONGING OR IN ANYWISE APPERTAINING, SITUATED IN THE PARISH OF JEFFERSON, STATE OF LOUISIANA, IN THAT PART THEREOF KNOWN AS SURBURBAN PARK SUBDIVISION, SAID LOTS ARE DESIGNATED BY THE NO, FIFTEEN AND LETTER "B" OF SQUARE THIRTY-FOUR (34), WHICH SQUARE IS BOUNDED BY COOK, THEARD, BAINBRIDGE AND LEBOEUF STREETS. SAID LOTS 15 AND B ADJOIN EACH OTHER. LOT NO. 15 MEASURES TWENTY-FIVE (25') FEET FRONT ON COOK STREET, THE SAME IN WIDTH IN THE REAR, BY A DEPTH OF ONE HUNDRED TWENTY-FIVE (125') FEET. LOT "B" MEASURES SIXTEEN AND 60/100 (16.60') FRONT ON COOK STREET, BY A DEPTH OF ONE HUNDRED TWENTY-FIVE (125') ALONG THE LINE OF LOT NO. 15 AND A DEPTH OF ONE HUNDRED TWENTY-FIVE AND 03/100 (125.03') FEET; ALL IN ACCORDANCE WITH A PLAN MADE BY J.T.W. STEPHENS, SURVEYOR, ON JUNE 21, 1917, ON FILE IN THE OFFICE OF BLYTHE & COMPANY, INC., AGENT FOR O'CONNER REALTY CO., INC., NEW ORLEANS, BUILDING, NEW ORLEANS, LOUISIANA IMPROVEMENTS BEAR THE MUNICIPAL NO. 1311 COOK STREET, GRETNA, LA 70056.

         Following the death of August Edwards, his succession was opened and a judgment of possession was rendered on May 2, 2002, placing Rosabell Sullivan Edwards, as surviving spouse in the community of the decedent, in possession of an undivided one-half (1/2) interest in and to all the property belonging to the community which existed between them, and granting her a usufruct over the other undivided one-half (1/2) interest belonging to the estate of the decedent, August Edwards. Brenda Mays Edwards, August Edwards, Kenneth Edwards, Sharon Edwards Wright, Ralph Edwards, Wayne Edwards, Elton Edwards, Terry Edwards Jackson, Emile Edwards, Carolyn Edwards and Timothy Edwards, as sole heirs of the decedent (hereinafter "the Heirs"), were placed into possession of the naked ownership of the other undivided one-half (1/2) interest, representing the decedent's share of the community, in undivided equal portions subject to the lifetime usufruct of their mother, Rosabell Sullivan Edwards ("Rosabell").

         On January 28, 2004, Rosabell executed a promissory note for the principal sum of $40, 000.00 together with 6.375% annual interest, payable in monthly installments of $249.55, beginning on March 1, 2004. The promissory note was made payable to the order of Countrywide Home Loans, Inc. and endorsed in blank.[1] The promissory note was secured by an act of mortgage on the above described Property executed by Rosabell on the same date and in the same amount, which was recorded in the mortgage records of Jefferson Parish as Instrument No. 1439009, MOB 4193, Page 430. Rosabell was the sole obligor on both the promissory note and mortgage with which the note was secured; the Heirs did not intervene or execute the note or mortgage.

         Rosabell died intestate on May 7, 2008. At the time of her death, Rosabell was domiciled and resided at the Property. On December 16, 2010, in accordance with La. C.C.P. art. 3432, Carolyn and Elton Edwards executed an affidavit of small succession providing that the Heirs each inherited an undivided 1/11 interest in the Property. The affidavit of small succession was recorded on December 16, 2010 in the official records of Jefferson Parish as Instrument No. 11053017, Conveyance Book 3273, Page 382. The affidavit of small succession signed by Carolyn contains the following language, in pertinent part:

(9) Affiant understands and affirms under penalty of
perjury that if Affiant is an heir, Affiant accepts the succession of the Decedents [sic], including the Decedents' [sic] debts. Affiant further acknowledges and affirms under penalty of perjury that Affiant executes this document after having read the document line-by-line, that Affiant understands the legal significance of this document, that the information contained in this Affidavit is true, correct and complete to the best of Affiant's knowledge, information, and belief, and that Affiant executes this document knowingly, freely and voluntarily and without any coercion or reservation whatsoever.

         On August 26, 2014, each of the Heirs, other than Carolyn, executed identical quitclaim deeds conveying ownership of their respective 1/11 undivided interests in the Property to Carolyn.[2] Each of the quitclaim deeds, following a description of the Property, contains the following language, in pertinent part:

Vendee [Carolyn] understands that this property may be subject to outstanding mortgages and vendee does understand that these mortgages may outrank [her] privilege and attach to the above-described property.

         As of August 24, 2014, Carolyn became the sole owner of the entirety of the Property.

         On September 24, 2014, prior to the recordation of the ten quitclaim deeds, Green Tree filed a "Suit on Promissory Note and to Enforce Mortgage and For Declaratory Judgment" in an ordinary proceeding naming each of the Heirs as a defendant.[3] In its petition, Green Tree alleged that it was the holder of the promissory note secured by the mortgage on the Property executed by Rosabell on January 28, 2004, and that the note was delinquent and in default as the installment due for November 1, 2008, and all subsequent installments, remained unpaid. In support of its petition, Green Tree submitted the original promissory note and a certified copy of the act of mortgage.[4] As the holder of the promissory note, and pursuant to acceleration clauses contained in the note and mortgage, Green Tree declared the entire indebtedness immediately due and filed suit to enforce the note and the mortgage seeking payment of the "unpaid balance of $37, 063.19 principal together with 6.375% per annum interest from October 1, 2008 until paid, " and all allowable charges, costs, expenses, and reasonable attorney's fees permitted by the note and mortgage. Green Tree also prayed for judgment declaring and recognizing that the Heirs either concurred or consented to the mortgage prior to its execution, that the mortgage encumbered the entirety of the Property, and that the heirs inherited the Property subject to the mortgage. Green Tree also requested that a curator ad hoc be appointed to represent the absentee Heirs that were not domiciled in Louisiana.

         Carolyn was personally served with citation and a certified copy of the petition filed by Green Tree on December 11, 2014.[5] Once served with a copy of the citation and petition, Carolyn did not file an answer, exception, any other responsive pleading, or otherwise make an appearance in the case. Consequently, Green Tree filed a motion for preliminary default against Carolyn and the other Heirs who had been properly served and not responded, which was granted on April 7, 2015. On December 18, 2015, Green Tree filed a motion for summary judgment against the remaining absentee defendants, in rem only.

         Also on December 18, 2015, Green moved to confirm the preliminary default previously granted on April 7, 2015 against Carolyn (and Wayne, Terry, Ralph and Emile Edwards). The record reflects that, at that time, counsel for Green Tree put into evidence an affidavit of account and status as note holder executed by Krista Leonard on behalf of Ditech Financial LLC showing the default and evidencing the amount owed. Additionally, counsel for Green Tree presented a certification, which certified service of citation and the petition, that a preliminary default had been entered, and that no answer or other responsive pleading had been filed by any of the five defendants.

         On January 4, 2016, considering Green Tree's motion to confirm the preliminary default, the affidavit of account and status as a note holder, counsel's certification, and the exhibits attached to the petition, a default judgment was signed and rendered in favor of Green Tree and against the defendants, Carolyn, Wayne, Terry, Ralph and Emile Edwards, casting them in judgment "jointly and in solido" to pay Green Tree the sum of "$37, 063.19 principal[, ] together with 6.375% per annum interest from October 1, 2008 until paid, " and all allowable charges, fees and costs allowable under the note and mortgage. Additionally, the default judgment declared that Carolyn, Wayne, Terry, Ralph and Emile Edwards had "ratified, authorized and confirmed" the mortgage on the Property, and that the mortgage encumbered the entirety of the property, including any and all interest each of them had in the Property.

         Notice of the default judgment was sent to Carolyn on January 5, 2016. Thereafter, Carolyn did not file (nor did any of the other defendants cast in judgment) a motion for new trial or seek to annul the default judgment.[6]

         Eight months later, in September 2016, Green Tree's motion for summary judgment against the remaining defendant Heirs, represented by a curator, came for hearing. Certified copies of the ten quitclaim deeds, executed individually by the Heirs transferring each of their respective interests in the Property to Carolyn, were introduced into evidence. Though not made a party to the motion for summary judgment - as Green Tree's rights against her had already been adjudicated in the prior default judgment - nor having filed a responsive pleading thereto, Carolyn, in proper person, appeared at the hearing on the motion for summary judgment. She stated the following in open court on the record:

Yes. They're trying to foreclose on the property that I've been trying to talk to Country Wide when Country Wide had it. I have all kinds of information that - and then by the time I got to be the executive [sic] of the estate, Bank America took over, and since then Bank America has sent me checks for foreclosure, defaults and all. I have checks and all that they sent me. . . By the time I started talking to Bank America, BAC started on it, and I was just collecting information and steady trying to pay the mortgage. . . Bank America, they told me that I wasn't eligible for a loan modification ...

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