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Lebeau v. Saxon Mortgage Services, Inc.

Court of Appeals of Louisiana, Fourth Circuit

April 17, 2019

KELVIN LEBEAU
v.
SAXON MORTGAGE SERVICES, INC., SOUTHERN CUSTOMS OF LOUISIANA INC., ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-00379, DIVISION "M-13" Honorable Paulette R. Irons, Judge.

          Edmond J. Harris VALTEAU, HARRIS, KOENIG & MAYER, COUNSEL FOR PLAINTIFF/APPELLANT.

          Kent A. Lambert Katie L. Dysart Matthew C. Juneau BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, Rachel W. Wisdom J. Dalton Courson STONE PIGMAN WALTHER WITTMANN L.L.C., COUNSEL FOR DEFENDANTS/APPELLEES.

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown.

          SANDRA CABRINA JENKINS JUDGE.

         This is an action for wrongful eviction brought by a mortgagor against his mortgage lender and loan servicer. Kelvin Lebeau appeals the trial court's October 12, 2017 judgment granting the Motion for Summary Judgment filed by defendants Deutsche Bank and Trust Company Americas ("Deutsche Bank") and Saxon Mortgage Services, Inc. ("Saxon") (collectively, "Appellees"). Based on our review of the record, we conclude that Mr. Lebeau was not wrongfully evicted from property located at 11631 West Barrington Drive in New Orleans, Louisiana ("Property"). Instead, we find that Mr. Lebeau abandoned the Property secured by the mortgage. And under the terms of the mortgage, Appellees had the contractual right to physically secure and preserve the Property, while still giving Mr. Lebeau full access to Property. Accordingly, we affirm the trial court's judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On September 26, 2006, Mr. Lebeau entered into an adjustable rate note ("Note") in the amount of $117, 000.00 plus interest, payable to Novastar Mortgage, Inc. ("Novastar"). The Note was secured by a mortgage ("Mortgage") executed on that date by Mr. Lebeau, which encumbered his Property. Deutsche Bank, as trustee for Novastar, was the holder and owner of the Note and Mortgage. Deutsche Bank retained Saxon to service Mr. Lebeau's Mortgage, which included the right to collect and apply payments received to Mr. Lebeau's mortgage loan, and take steps to secure the Property in the event of default.

         On January 4, 2010, after Mr. Lebeau defaulted under the terms of the Mortgage and Note, Deutsche Bank filed a "Petition for Suit on a Note and Enforcement of Mortgage on Real Estate" in Civil District Court for the Parish of Orleans. Saxon retained CoreLogic Field Services ("CoreLogic") to inspect and secure Mr. Lebeau's Property after he defaulted on the loan. CoreLogic contracted with Southern Customs of Louisiana ("Southern Customs") to perform the property inspection and preservation services for Saxon.

         In his Petition for Damages, Mr. Lebeau alleged that on January 20, 2010, defendants or their agents broke into his Property and illegally resorted to "self-help" repossession by changing the locks, breaking into the doors, breaking locked gates, and posting signs on the Property. In his Amended Petition, Mr. Lebeau alleged that Deutsche Bank and its agents wrongfully evicted him and illegally took possession of his Property by breaking and entering.

         On November 2, 2012, Saxon filed a Motion for Summary Judgment, arguing that the Mr. Lebeau's Mortgage gave Deutsche Bank the right to take whatever steps were reasonable and appropriate to protect Deutsche Bank's interest in the Property, which included securing or repairing the Property. On January 8, 2013, the trial court denied Saxon's Motion for Summary Judgment. This judgment is not at issue in this appeal.

         On May 16, 2017, after Mr. Lebeau's deposition was taken, Deutsche Bank filed a Motion for Summary Judgment, seeking dismissal of Mr. Lebeau's claims on the grounds that he had abandoned the Property, which was vacant when Southern Customs secured and winterized the Property on January 20, 2010. On June 22, 2017, Saxon joined in Deutsche Bank's Motion for Summary Judgment. After a hearing on August 31, 2017, the trial court signed a judgment dated October 12, 2017, granting the Appellees' Motion for Summary Judgment, and dismissing Mr. Lebeau's claims against them, with prejudice.

         Mr. Lebeau timely appealed.

         DISCUSSION

         Standard of Review

         We apply a de novo standard of review in examining a trial court's ruling on summary judgment. Hare v. Paleo Data, Inc., 11-1034, p. 9 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence." Fiveash v. Pat O'Brien's Bar, Inc., 15-1230, p. 7 (La.App. 4 Cir. 9/14/16), 201 So.3d 912, 917 (quoting Quinn v. RISO Invest., Inc., 03-0903, pp. 3-4 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 926).

         Burden ...


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