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International Fidelity Insurance Co. v. Durham

Court of Appeals of Louisiana, Third Circuit

November 14, 2018

INTERNATIONAL FIDELITY INSURANCE COMPANY
v.
CHARLA DURHAM A/K/A CHARLA HOLSOMBACK

          APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C-2015-0268 HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

          W. Simmons Sandoz Attorney at Law COUNSEL FOR DEFENDANT/APPELLEE: Charla Durham

          Stephanie Marie Ackal Stephanie Ackal, LLC COUNSEL FOR INTERVENOR/CROSS-APPELLANT: Mortgage Electronic Registration Systems, Inc.

          Brian W Arabie Arabie Law Firm COUNSEL FOR PLAINTIFFS/APPELLANTS: Gene Mayo Carolyn Mayo

          Reid A. Jones Wiener, Weiss & Madison COUNSEL FOR PLAINTIFF/APPELLANT: International Fidelity Insurance Company

          David Durham In Proper Person Ricky L. Moses, Sheriff of Beauregard Parish In Proper Person

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          SHANNON J. GREMILLION JUDGE.

         The notion of avoiding bail obligations conjures images of desperate fugitives fleeing justice; the bondsperson avoiding those obligations would seem far more rare, yet that is apparently the backdrop on which this drama has played out. All parties to this action to make executory a foreign judgment and to execute upon the same are appealing the trial court's judgment.

         FACTS

         Charla and David Durham purchased a piece of real estate in Beauregard Parish in June 2014. In December 2014, the Durhams entered into an agreement that was approved by the district court to dissolve their community property regime. Particularly relevant to this matter are Articles XVIII and XIX of the covenant, which provide:

XVIII.
Charla Durham also acknowledges that her debt is her separate obligation. She further waives and denounces any interest she may have or may have acquired in the future in David Lynn Durham's separate property, including, but not limited to the immovable property described as Lot Three (3) of Harmony Hills Subdivision in Beauregard Parish, Louisiana which bears a municipal address of 1217 Harmony Lane; any interest from any assets or investments; any fruits of any of David Lynn Durham's separate property.
XIX.
DAVID LYNN DURHAM will maintain his separate checking account at City Savings Bank (#1682814) as well as his separate Boise Credit Union account. He will keep any and all interest he has in his IRA's, 401K, retirement accounts, stocks, bonds or other assets that he had before the marriage. He will retain the immovable property described as Lot Three (3) of Harmony Hills Subdivision in Beauregard Parish, Louisiana, which bears a municipal address of 1217 Harmony Lane, as his separate property and retain the debt for the same as his own. He will further retain the 2013 Cadillac CTS and the 2014 Chevrolet Silverado as his separate property and shall retain all debt for the same. He will further retain all income attributable to him along with all fruits thereof.

         In January 2015, International Fidelity Insurance Company obtained a judgment in New Jersey against Charla for $122, 695.39, allegedly arising from Charla's activities as a bail bondsperson. International Fidelity obtained an April 2015 order in Louisiana recognizing the New Jersey judgment. When it learned of the dissolution of the Durhams' community property regime, International Fidelity filed a lawsuit to annul the dissolution in September 2015.

         In December 2015, the Durhams jointly sold the property to the Mayos. The Mayos had borrowed the money to purchase the home from Mortgage Electronic Registration System, Inc. (MERS) and granted MERS a mortgage on the property to secure the loan. The Mayos and MERS had obtained a title opinion that opined that David Durham was the sole owner of the property.

         In September 2016, the Durhams and International Fidelity reached a compromise in the suit to annul the community property regime dissolution. Thereafter, International Fidelity had the Beauregard Parish sheriff seize the property. To petition the court to enjoin the seizure and sale of the property, the Mayos and MERS intervened in the suit to recognize the New Jersey judgment. Additionally, the Mayos asserted a claim for damages for wrongful seizure of their property.

         The trial court determined that because International Fidelity had not filed a notice of lis pendens into the mortgage records, the seizure of the property was improper. The Mayos were recognized as the owners of the property in question, subject to the mortgage in favor of MERS. The Beauregard Sheriff was permanently enjoined from proceeding with the sale. The trial court found that the demands of the Mayos and MERS in their intervention to permanently enjoin ...


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