Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ocwen Loan Servicing, LLC v. The Unopened Succession of Porter

Court of Appeals of Louisiana, Fourth Circuit

May 23, 2018

OCWEN LOAN SERVICING, LLC
v.
THE UNOPENED SUCCESSION OF MARJORIE PORTER AND SANDIE PARKMAN

          APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-06563, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Sherri L. Hutton Law Office of Sherri L. Hutton and Ali Dehghannezhad Law Office of Ali Deghan, LLC COUNSEL FOR DEFENDANT/RELATOR

          Stephen D. Marx Cherhardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLP COUNSEL FOR PLAINTIFF/RESPONDENT

          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome

          TERRI F. LOVE JUDGE.

         The instant dispute arises from the default of an alleged mortgage. Ocwen Loan Servicing, LLC ("Ocwen") sought declaratory relief recognizing the validity of a mortgage against Sandie Parkman ("Ms. Parkman") and the unopened succession of her mother Marjorie Porter ("Ms. Porter"). Ms. Parkman seeks supervisory review of the trial court's judgment denying her exception of no cause of action. We find the mortgage is invalid on its face. Even if the mortgage was valid, it is not enforceable against Ms. Parkman because Ocwen cannot prove that Ms. Parkman agreed to allow her mother to encumber the entire property with the mortgage. Thus, we find the trial court erred in denying the exception of no cause of action. Accordingly, the writ is granted; the trial court's judgment is reversed, and the matter is remanded pursuant to La. C.C.P. art. 934 to allow Ocwen an opportunity to amend its petition, if it can, in order to set forth a cause of action.

         PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         In 1976, Ms. Porter acquired full ownership of the property in question through a community property settlement between herself and her ex-husband. In 2001, Ms. Porter executed an act of donation, which was proper in all respects, donating one-half interest in the property to her daughter Ms. Parkman. On September 22, 2003, Ms. Porter allegedly executed a mortgage on the property that she and her daughter owned jointly. Six days after the mortgage was signed, Ms. Parkman attempted to donate her one-half interest in the property to her mother. However, Ms. Porter never accepted the donation. Ms. Porter died in December 2013.

         In July 2017, Ocwen filed a petition for declaratory judgment recognizing the validity of the mortgage executed by Ms. Porter. Ocwen named as defendants Ms. Parkman and the unopened succession of her mother Ms. Porter. Ms. Parkman filed an exception of no cause of action, claiming her mother did not have one hundred percent interest in the property when the mortgage was executed and did not have authority to encumber the property with the mortgage. Ms. Parkman also asserted that the mortgage was invalid because it lacked a legal description of the property and that her attempted donation to her mother in 2003 was invalid because Ms. Porter never accepted the donation.

         A hearing was held on the exception, and the trial court rendered judgment denying the exception of no cause of action. Ms. Parkman timely filed the present application for supervisory review.

         STANDARD OF REVIEW

         In Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc., 396 So.2d 878 (La.1981), the Supreme Court established factors which should be considered in determining whether to grant supervisory review of interlocutory judgments:

When the overruling of the exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.