United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
MAURICE HICKS, JR., CHIEF JUDQE UNITED STATES DISTRICT COURT
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.
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.
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.
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
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.
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.
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.
LAW AND ANALYSIS
Summary Judgment Standard.
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."
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, ...