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Wilson v. Ditech Financial LLC

United States District Court, W.D. Louisiana, Shreveport Division

July 12, 2018

JACQUELINE AUDRINNE WILSON
v.
DITECH FINANCIAL, L.L.C.

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          S MAURICE HICKS, JR., CHIEF JUDQE UNITED STATES DISTRICT COURT

         Before the Court is Defendant, Ditech Financial L.L.C.'s (“Ditech”) Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. See Record Document 25. Ditech prays for the Court to dismiss Plaintiff, Jacqueline Audrinne Wilson's (“Wilson”) claims of wrongful eviction and wrongful foreclosure. For the reasons stated in the instant Memorandum Ruling, Ditech's Motion for Summary Judgment is GRANTED.

         I. BACKGROUND

         On February 12, 2007, Wilson executed a $55, 200.00 note to refinance a prior mortgage loan. See Record Document 25-3 at p. 3, ¶ 7, Decl. Christy Christensen, Exhibit 1; Record Document 25-4 at pp. 2-3, Note, Exhibit 1-A. Ditech is the authorized servicer of the loan, and was the authorized servicer at all times pertinent to this lawsuit. See Id. at ¶ 6, Exhibit 1. The note was secured by a mortgage on immoveable property located at 3229 Lancaster Street, Shreveport, Louisiana 71108 (the “Property”). See Record Document 25-6 at p. 2, Mortgage, Exhibit 2.

         Wilson obtained the loan because the intended occupant of the Property, Wilson's mother, Bettie Park (“Park”), did not have sufficient credit to obtain the loan herself. See Record Document 25-7 at p. 7, Wilson Depo., Exhibit 3. It was Wilson and Park's intention that Park would eventually assume the loan or otherwise take ownership of the Property. See id. at p. 8. Nonetheless, Wilson lived at the Property for “[a] few months” after obtaining the loan. See id. at p. 4. Thereafter, in 2008, Wilson moved to Virginia. See Id. Her current address in Virginia is 2301 Marshall Avenue, Norfolk, Virginia, 23504. See Id. at p. 5.

         On December 29, 2015, with the loan in default, Ditech initiated a suit for executory process. See Record Document 25-11 at pp. 2-4, Petition for Executory Process, Exhibit 7. During the executory process proceedings, a Curator ad Hoc, Heidi Martin (“Martin”), was appointed to represent Wilson due to Wilson's failure to appear at the hearing. See Record Document 25-12 at p. 2, Order Appointing Curator, Exhibit 8. This will be discussed further infra.

         On January 4, 2016, the state court ordered issuance of a Writ of Seizure and Sale. See Record Document 25-13 at p. 2, Order Writ of Seizure and Sale, Exhibit 9. The writ was issued on January 7, 2016. See Record Document 25-14 at p. 2, Writ of Seizure and Sale, Exhibit 10. Pursuant to the writ, the Property was sold at a Sheriff's Sale on June 15, 2016 to a third-party purchaser. See Record Document 25-16 at p. 2, Sheriff Sale Deed, Exhibit 12. On July 21, 2016, Martin filed a report outlining all actions taken to perfect service on Wilson in the state court action. See Record Document 25-17 at pp. 2-3, Martin's Report and Request for Reimbursement of Expenses, Exhibit 13. On July 22, 2016, the state court signed an order declaring that Martin had fulfilled her statutory obligations. See Record Document 52-18 at p. 2, State Court's Order, Exhibit 14.

         On May 23, 2017, Wilson commenced the current lawsuit in the First Judicial District Court for Caddo Parish by filing a Petition for Damages (the “Petition”). Wilson's causes of action are for wrongful eviction and wrongful foreclosure relating to the executory process proceedings in state court. See Record Document 1-2 at p. 6, ¶¶ 12-13, Wilson's State Court Petition. The Petition contains an allegation regarding the May 2016 payment of $4, 358.00 and then mentions an alleged “settlement discussion regarding the alleged wrongful eviction from the property.” See id. at p. 5, ¶¶ 7-8. The Petition then goes on to allege that Wilson “did not receive legal notice of the Executory Process lawsuit . . . prior to the sale of ‘the property' on June 15, 2016 . . .” Id. at ¶ 11. Wilson contends that “she is entitled to damages due to the wrongful seizure and sale of the property and that she is entitled to damages due to her wrongful eviction from the property.” Id. at ¶¶ 14-15. Furthermore, Wilson contends that Ditech is liable for all payments made by Wilson to Ditech on the note and mortgage, all amounts due to third parties in connection with the seizure and sale, all monies due to any other mortgage/lien holders that affects now or prior to the sale on June 15, 2016 on the property together with any interest and attorney fees, moving expenses, attorney fees and costs, and for such other damages as may be appropriate under the law of the state of Louisiana. Id. at ¶ 16.

         On July 7, 2017, Ditech removed the case to this Court. See Record Document 1. On March 16, 2018, Ditech filed a Motion for Judgment on the Pleadings. See Record Document 20. That Motion has been fully briefed and is pending before the Court. Ditech now files the present Motion for Summary Judgment. See Record Document 25.

         II. LAW AND ANALYSIS

         A. Summary Judgment Standard.

         Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. This rule provides that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. “A party asserting that a fact cannot be or is genuinely disputed must support the motion by citing to particular parts of materials in the record." Fed R. Civ. P. 56(c)(1)(A). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment." Fed.R.Civ.P. 56(e)(3).

         In a summary judgment motion, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings . . . [and] affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553 (internal quotations and citations omitted). If the movant meets this initial burden, then the non-movant has the burden of going beyond the pleadings and designating specific facts that prove that a genuine issue of material fact exists. See id. at 325, 106 S.Ct. at 2554; see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however, cannot meet the burden of proving that a genuine issue of material fact exists by providing only "some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little, 37 F.3d at 1075. Additionally, in deciding a summary judgment motion, courts "resolve factual controversies in favor of the nonmoving party, ...


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