FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-00379,
DIVISION "M-13" Honorable Paulette R. Irons, Judge.
J. Harris VALTEAU, HARRIS, KOENIG & MAYER, COUNSEL FOR
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
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown.
CABRINA JENKINS JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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.
Lebeau timely appealed.
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).