U.S. Bank National Association as Trustee for RFMSI 2005S7 v. Walter C. Dumas ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
uO NO. 2022 CA 0604
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RFMSI
200557
VERSUS
WALTER C. DUMAS
Judgment Rendered: APR 0 3 2023
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 610504
Honorable Timothy E. Kelley, Judge Presiding
Robert H. Ford Attorneys for Plaintiff A
- ppellee,
Houston, TX U.S. Bank National Association as
and- Trustee for RFMSI 200557
Corey J. Giroir
Natasha D. Fossett
Herschel C. Adcock, Jr.
Patricia Blankenbaker
AIicia B. Cook
Harold E. Cradic, III
Baton Rouge, LA
and-
Avery A. Simmons
Samuel M. Dearstyne
Charlotte, NC
Travis J. Turner Attorney for Defendant -Appellant,
Gonzales, LA Walter C. Dumas
BEFORE: THERIOT, CHUTZ, AND RESTER, JJ.
HESTER, J.
The defendant, Walter C. Dumas, appeals the trial court' s grant of summary
judgment in favor of the plaintiff, U.S, Bank National Association as Trustee for
RFMSI 200557 ( U. S. Bank), in this suit on a promissory note. For the reasons that
follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This litigation involves a suit on an obligation secured by a mortgage and has
a long, complex history, including two prior appeals and several prior writ
applications filed with this court. The following includes the facts relevant to this
appeal.
In March 2012, U.S. Bank filed a Petition to Enforce Security Interest by
Executory Process against Mr. Dumas alleging that Mr. Dumas defaulted on a
promissory note secured by a mortgage on certain immovable property located in
East Baton Rouge Parish. Mr. Dumas filed a Petition for Injunction to Arrest the
Seizure and Sale of Property[,] Statutory Damages[,] and Attorney' s Fees
contending, among other arguments, that the note and mortgage were separately
owned and not enforceable by U.S. Bank. The trial court granted Mr. Dumas' s
petition for injunction. That judgment was appealed to this Court, which reversed
the trial court judgment and determined that U. S. Bank had the right to enforce the
promissory note by executory process. U.S. Bank National Association v. Dumas,
2012- 1902 ( La. App. 1 st Cir. 413114), 144 So. 3d 29, writ denied, 2014- 0943 ( La.
8125114), 147 So. 3d 1119.
Subsequently, Mr. Dumas filed a second Petition for Injunction to Arrest the
Seizure and Sale of Property for different reasons, which the trial court granted. In
the trial court' s ruling, it determined that U.S. Bank' s filing did not meet the strict
requirements for sale by executory process. Therefore, the filing must be treated as
an ordinary proceeding.' Subsequently, U.S. Bank filed a Petition to Convert
This judgment was not appealed.
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Executory Proceeding to Ordinary Proceeding under La. Code Civ. P. art. 2644
requesting a judgment in its favor against Mr. Dumas for the amounts owed,
recognizing and enforcing U.S. Bank' s mortgage, and in due course issuing a writ
offieri facial ordering the sheriff to sell the mortgaged property.
On April 29, 2020, U. S. Bank filed a motion for summary judgment
requesting summary judgment in its favor on its petition for foreclosure. Mr. Dumas
opposed the motion for summary judgment and filed a peremptory exception raising
the objection of no right of action. U.S. Bank' s motion for summary judgment and
Mr. Dumas' s exception of no right of action came before the trial court on November
16, 2020. After a hearing, the trial court signed two judgments on December 10,
2020. One judgment denied Mr. Dumas' s exception of no right of action, and the
other judgment granted U.S. Bank' s motion for summary judgment. Mr. Dumas
sought supervisory writs on the denial of his exception ofno right of action2 and
appealed the granting of summary judgment in favor of U.S. Bank. Mr. Dumas also
filed an exception of prescription directly with this Court, which this Court denied.
On appeal, this Court determined that the December 10, 2020 judgment
granting summary judgment was not final and appealable because the judgment
lacked specificity in the amounts due and dismissed the appeal. U.S. Bank National
Association v. Dumas, 2021- 0585 ( La. App. 1st Cir. 12/ 22/21), 340 So. 3d 246, 251.
Thereafter, the trial court signed an amended judgment on February 28, 2022,
granting the motion for summary judgment and ordering Mr. Dumas to pay U.S.
Bank, among other specified amounts, the principal sum of $684,263. 55, accrued
interest of $385, 549. 96, and escrow overdrafts in the amount of $138, 466. 95. The
2 U.S. Bank National Association as Trustee for REMSI 200587 v. Dumas, 2020- 1311 ( La.
App. 1st Cir. 1/ 28/ 21), writ denied, stay denied stab nom. U. S. Bank National Association as
Trustee for RFMSI 2005S7 v. Dumas, 2021- 00246 ( La. 2120121), 311 So. 3d 351, and writ
denied, stay denied sub nom. U.S. Bank National Association as Trustee for RFMSI 200557
v. Dumas, 2021- 00245 ( La. 2120121), 311 So. 3d 352.
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judgment also ordered that the mortgage securing the described debt in favor of U.S.
Bank be recognized and declared enforceable in accordance with the law and with
preference and priority over all inferior encumbrances to the property. It is from the
February 28, 2022 amended judgment that Mr. Dumas now appeals, raising the
following assignments of error:
1. This Court erred when it denied Mr. Dumas' s writ application in reference
to the trial court' s denial of Mr. Dumas' s peremptory exception of no right
of action.
2. This Court erred when it denied Mr. Dumas' s peremptory exception of
prescription.
3. The trial court erred when it considered U.S. Bank' s exhibits, affidavit,
and other materials in deciding U.S. Bank' s motion for summary
judgment.
4. The trial court erred when it granted U.S. Bank' s motion for summary
judgment by ignoring Mr. Dumas' s competent evidence that shows the
existence of a genuine issue of material fact.
LAW AND ANALYSIS
The summary judgment procedure is favored and is designed to secure the
just, speedy, and inexpensive determination of every action. La. Code Civ. P. art.
966( A)( 2). 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. Code
Civ. P. art. 966( A)(3). The initial burden of proof is on the mover to show that no
genuine issue of material fact exists and that the mover is entitled to judgment as a
matter of law. La. Code Civ. P. art. 966( D)( 1). The burden then shifts to the adverse
party to produce factual support sufficient to establish the existence of a genuine
issue of material fact or that the mover is not entitled to judgment as a matter of law.
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Id. If the adverse party fails to do so, then summary judgment shall be granted. La.
Code Civ. P. art. 966( A)(3). Argument of counsel and briefs, no matter how artful,
are not sufficient to raise an issue of material fact. Wilson v. Davis, 2007- 1929 ( La.
App. 1 st Cir. 5128108), 991 So. 2d 1052, 1063, writs denied, 2008- 2011, 2008- 2020
La. 11/ 10/ 08), 996 So. 2d 1070, 1071.
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court' s
determination of whether summary judgment is appropriate. Aucoin v. Larpenter,
2021- 0064 (La. App. lst Cir. 9120121), 329 So. 3d 363, 368, writ denied, 2021- 01505
La. 12/ 7/ 21), 328 So. 3d 420. Thus, appellate courts ask the same questions:
whether there is any genuine issue of material fact and whether the mover is entitled
to judgment as a matter of law. Id.Because the applicable substantive law determines materiality, whether a
particular fact in dispute is material can be seen only in light of the substantive law
applicable to the case. Durand v. Graham, 2019- 1312 ( La. App. 1st Cir. 6/ 12/ 20),
306 So. 3d 437, 440. Summary judgment is an appropriate procedural device to
enforce a negotiable instrument when the defendant establishes no defense against
enforcement. Winston v. Hall, 2017- 1097 ( La. App. 1 st Cir. 416/ 18), 2018 WL
1663020, * 3 ( unpublished), citing American Bank v. Saxena, 553 So.2d 836, 844-
846 ( La. 1989). In a suit to collect on a promissory note, once the plaintiff, as holder
of the note, proves the maker' s signature or the maker admits it, the holder has made
out his prima facie case by mere production of the note and is entitled to recover in
the absence of any further evidence. The burden then shifts to the defendant to prove
the existence of a triable issue of material fact and/ or any affirmative defenses. See
Riedel v. Fenasci, 2018- 0538 ( La. App. 1st Cir. 12/ 28/ 18), 269 So. 3d 995, 999.
1. Evidentiary Issues (Assignment of Error No. 3)
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Before considering the merits of U. S. Bank' s motion for summary judgment,
we will address Mr. Dumas' s contention in his third assignment of error that the trial
court erred when it considered U.S. Bank' s exhibits, affidavit, and other materials in
deciding U.S. Bank' s motion for summary judgment. Mr. Dumas argues that U.S.
Bank' s exhibits were attached to his legal memorandum rather than his motion for
summary judgment, and therefore should not be considered. In support of his
argument, Mr. Dumas cited outdated summary judgment law when a memorandum
was not one of the documents that could be considered under Article 966 in a motion
for summary judgment, and therefore documents attached to the memorandum could
not be considered. See Frisard v. Autin, 98- 2637 ( La. App. 1 st Cir. 12/ 28/ 99), 747
So. 2d 813, 817, writ denied, 2000- 0126 ( La. 3/ 17/ 00), 756 So. 2d 1145. Since then,
Article 966 has been amended several times and now provides " 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." ( Emphasis
added.)
The documents U.S. Bank filed in support of its motion for summary
judgment were properly filed and considered by the trial court.
Mr. Dumas also argued that the affidavit attached to U.S. Bank' s motion for
summary judgment of Howard R. Handville, a senior loan analyst with Ocwen
Financial Corporation, who serviced the loan at issue on behalf of U.S. Bank, was
not made on personal knowledge. Louisiana Code of Civil Procedure article 967( A)
states that supporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.
Where business records are concerned, the courts have deemed Article 967 satisfied
when the affiant is qualified to identify the business records as such. Durand, 306
So. 3d at 442. Where the affiant is familiar with the account and business records, it
is not necessary for the affiant to show that he personally prepared the business
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records or that he had direct, independent, first-hand knowledge of their contents.
Regions Bank v. Louisiana Pipe & Steel Fabricators, LLC, 2011- 0839 ( La. App.
1st Cir. 12121111), 80 So. 3d 1209, 1213. Mr. Handville' s affidavit related that he
had personal knowledge of and reviewed the relevant books and records made in the
regular course of business relating to the matters set forth in his affidavit and that
the information in the affidavit was taken from the records. He pointed out that
based on his experience and in the performance of his job duties, he is familiar with
the manner and procedure in which the documents referenced are created and
maintained. Furthermore, Mr. Handville' s testimony was supported by the very
documents about which he testified. Thus, we conclude that the affidavit and
documents attached to the affidavit submitted by U. S. Bank were sufficient under
Article 967. See Durand, 306 So. 3d at 442.
2. The Merits of the Motion for Summary Judgment ( Assignments of Error
No.' s 1, 2, and 4)
In support of its motion for summary judgment, in addition to the affidavit of
Mr. Handville, U.S. Bank filed an excerpt of Mr. Dumas' s deposition and the
opinion of this Court in a prior appeal. Attached to Mr. Handville' s affidavit were
a copy of the July 25, 2005 promissory note where Homecomings Financial Network
Inc. loaned $ 750, 000. 00 to Mr. Dumas; a copy of the mortgage encumbering Mr.
Dumas' s property located at 19221 South Lakeway Avenue; Mr. Dumas' s payment
history on the loan; the December 6, 2011 notice of default sent to Mr. Dumas, and
the Transfer of Note Secured by Mortgage assigning the Note from Mortgage
Electronic Registration Systems, Inc. to U.S. Bank.
The summary judgment evidence revealed that on July 25, 2005,
Homecomings Financial Network, Inc. loaned $ 750, 000. 00 to Mr. Dumas, and Mr.
Dumas executed a promissory note for repayment of the loan. Contemporaneously
with the execution of the note, Mr. Dumas granted a mortgage securing the note and
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encumbering Mr. Dumas' s South Lakeway Avenue property. According to Mr.
Handville' s affidavit, Mr. Dumas made monthly payments on the loan until
September 1, 2011, but failed to make any payments beyond that date, and as of
February 14, 2020, Mr. Dumas owed $ 1, 185, 641. 95. The note showed
endorsements from Homecomings Financial Network, Inc. to Residential Funding
Corporation, then from Residential Funding Corporation to U.S. Bank National
Association as Trustee. Mr. Handville noted that a " true and correct" copy of the
note and mortgage were attached to his affidavit and the original note was " currently
in possession of the Court."
U.S. Bank also attached a prior opinion of this Court where this Court stated
that U.S. Bank attached the original promissory note and a properly certified copy
of the mortgage to its Petition to Enforce Security Interest by Executory Process.
U.S. Bank National Association v. Dumas, 144 So. 3d at 32. This Court further
determined that the original note presented to the court by U.S. Bank reflects on its
face that U.S. Bank has the right to enforce the instrument, and no further evidence
was required to establish that right. U.S. Bank National Association v. Dumas,
144 So. 3d at 45.
After a de novo review of the evidence presented by U.S. Bank, we find that
U.S. Bank proved its prima facie case against Mr. Dumas by producing the original
note, which establishes the debt, by proving that U.S. Bank has the right to enforce
the instrument, and by proving Mr. Dumas defaulted on the note. With this showing,
the burden shifted to Mr. Dumas to prove the existence of a triable issue of material
fact and/ or any affirmative defenses. See Riedel v. Fenasci, 269 So. 3d at 999.
In his first two assignments of error, Mr. Dumas contends that this Court erred
when it denied his writ application in reference to the denial of Mr. Dumas' s
peremptory exception of no right of action and denied his peremptory exception of
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prescription filed directly with this Court.' In support of his arguments, Mr. Dumas
contends that U.S. Bank' s motion for summary judgment is attempting to enforce a
different promissory note than the one filed with its original physically filed March
26, 2012 petition and that the original promissory note and mortgage were no longer
in this litigation. He bases his argument on a statement made by the trial court on
December 16, 2014, when ruling on Mr. Dumas' s second Petition for Injunction to
Arrest the Seizure and Sale of Property and to Set Aside Void Judgment filed after
the matter was remanded from this Court. During that hearing, the trial court pointed
out that U.S. Bank' s March 22, 2012 fax -filed petition was not the same as the
original petition physically filed on March 26, 2012 because the fax -filed petition
did not include any of the attached documents, particularly the note and the
mortgage. The trial court concluded that the March 22, 2012 fax -filed petition
without the attached documents did not comply with the strict requirements to
proceed via executory process, and the petition was therefore ordinary process. The
trial court stated, " They' re different processes. And because of that, the subsequent
filing with the attachments should have been reallotted." It is the position of Mr.
Dumas that this statement by the trial court effectively removed the March 26, 2012
petition, which included the original note and a certified copy of the mortgage, from
this litigation.
Mr. Dumas' s argument fails to consider the well- settled rule that the district
court' s oral or written reasons for judgment form no part of the judgment. See
Bellard v. American Cent. Ins. Co., 2007- 1335 ( La. 4118/ 08), 980 So. 2d 654, 671.
The trial court signed a judgment from the December 16, 2014 hearing " declaring
the judgment that dismissed [ Dumas' s] preliminary injunction which prohibited the
3 Mr. Dumas previously filed a writ application with this Court seeking review of the trial court' s
denial of his exception of no right of action. His writ application was denied. However, when an
unrestricted appeal is taken from a final judgment, the appellant is entitled to review of all adverse
interlocutory rulings prejudicial to him, in addition to the review of the final judgment. City of
Baton Rouge v. Douglas, 2016- 0655 ( La. App. 1st Cir. 4112117), 218 So. 3d 158, 162.
Sheriff] from offering for sale [ the 19221 South Lakeway Avenue property] as void
ab initio, recalled and set aside...." The judgment did not declare or order that the
March 26, 2012 physically filed petition was no longer a part of the litigation.
Furthermore, La. R.S. 13: 850( C) states that if a party fails to comply with the
requirements of Subsection B, " the facsimile filing shall have no force or effect."
Emphasis added.) Louisiana jurisprudence gives effect to a physically filed petition
even if it differs from the original fax -filed petition. In Dunn v. City of Baton
Rouge, 2007- 1169 ( La. App. 1st Cir. 2/ 8/ 08), 984 So.2d 129, 131, the fax -filed
petition differed from the version physically filed with the clerk' s office. The court
gave effect to the physically filed petition but found it did not interrupt prescription
because it was filed after prescription had expired. See also Smith v. St. Charles
Parish Public Schools, 2017- 475 ( La. App. 5th Cir. 5/ 1/ 18), 246 So. 3d 821, 826-
27, writ denied, 2018- 1001 ( La. 10/ 8118), 253 So. 3d 802 ( wherein the plaintiff failed
to comply with La. R.S. 13: 850 because the physically filed petition differed from
the fax -filed version, yet the court found " the petition carrying the force and effect
of law" was the physically filed petition). The petition in effect and before this Court
is the March 26, 2012 physically filed petition with the original note attached.
As noted, Mr. Dumas also contends that U.S. Bank was attempting to enforce
a different promissory note than the one this Court previously ruled on. Mr.
Handville, in his affidavit, pointed out that the original note was in the possession of
the court, and a copy of the note was attached to the motion for summary judgment.
The original note filed with the March 26, 2012 petition that is part of our record on
appeal and the copy ofthe note filed with U.S. Bank' s motion for summary judgment
are substantively identical. The body of the note is the same; the only difference is
a handwritten notation made at the top of the documents indicating a trial court case
number. We are not persuaded by Mr. Dumas' s argument that U.S. Bank is
attempting to enforce a different note in its motion for summary judgment than the
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one this Court previously ruled on or that the original note attached to the March 26,
2012 petition is no longer in the litigation. Therefore, we find no merit to Mr.
Dumas' s argument that U.S. Bank has no right of action to enforce the note. The
issue of whether U.S. Bank was the proper plaintiff was previously determined in
the 2012 appeal in this case, where this Court concluded that U.S. Bank has the right
to enforce the instrument. This Court' s finding constitutes law of the case.' See
U.S. Bank National Association v. Dumas, 144 So.3d at 45. Additionally, we find
no merit to Mr. Dumas' s argument that this action has prescribed because there has
been no action taken on the original note since the December 16, 2014 ruling of the
trial court. Actions on promissory notes, whether negotiable or not, are subject to a
liberative prescription of five years. La. Civ. Code art. 3498. Thus, prescription
commences to run from the day payment is exigible. Id. Mr. Dumas defaulted on
the promissory note on October 1, 2011. Having concluded that the March 26, 2012
physically filed petition and the motion for summary judgment are enforcing the
same promissory note, the March 26, 2012 petition clearly interrupted the five-year
prescriptive period for an action on a promissory note.
Finally, Mr. Dumas argues that the trial court erred when it granted U. S.
Bank' s motion for summary judgment by ignoring Mr. Dumas' s competent evidence
that shows the existence of a genuine issue of material fact. As the facts raised by
Mr. Dumas in his opposition to the motion for summary judgment are not material
to U.S. Bank' s cause of action to enforce the note by ordinary process, and summary
a The law of the case doctrine is a discretionary guide that relates to ( a) the binding force of a trial
judge' s ruling during the later stages of trial; ( b) the conclusive effects of appellate rulings at trial
on remand; and ( c) the rule that an appellate court ordinarily will not reconsider its own rulings of
law on a subsequent appeal in the same case. Zanella' s Wax Bar, LLC v. Trudy' s Wax Bar,
LLC, 2019- 0043 ( La. App. 1st Cir. 11/ 7/ 19), 291 So. 3d 693, 696, writ denied, 2019- 01931 ( La.
1/ 28/ 20), 291 So. 3d 1052. It applies to all prior rulings or decisions of an appellate court or the
supreme court in the same case, not merely those arising from the full appeal process. The reasons
for the doctrine are to avoid re -litigation of the same issues, to promote consistency of result in the
same litigation, and to promote efficiency and fairness to the parties by affording a single
opportunity for the argument and decision of the matter at issue. Id.11
judgment cannot be defeated by mere argument of counsel, we find no merit to Mr.
Dumas' s final assignment of error. Mr. Dumas failed to prove the existence of a
triable issue of material fact and/ or any affirmative defenses sufficient to defeat
summary judgment; therefore, the trial court did not err in granting summary
judgment in favor of U.S. Bank and ordering Mr. Dumas to pay the amount due on
the note.
CONCLUSION
For the foregoing reasons, we affirm the February 28, 2022 judgment granting
summary judgment in favor of U.S. Bank National Association as Trustee for
RFMSI 200557. All costs of the proceeding are assessed to Walter C. Dumas.
AFFIRMED.
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