APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2017-06563, DIVISION "L-6"
Honorable Kern A. Reese, Judge
L. Hutton Law Office of Sherri L. Hutton and Ali
Dehghannezhad Law Office of Ali Deghan, LLC COUNSEL FOR
Stephen D. Marx Cherhardy, Sherman, Williams, Murray, Recile,
Stakelum & Hayes, LLP COUNSEL FOR PLAINTIFF/RESPONDENT
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Roland L. Belsome
F. LOVE JUDGE.
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.
HISTORY AND FACTUAL BACKGROUND
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.
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.
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
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
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 ...