248 So. 3d 491
La. Ct. App.2018Background
- Property was owned by Marjorie Porter (mother); in 2001 Porter donated one-half to daughter Sandie Parkman by valid act of donation.
- On September 22, 2003 Porter executed a mortgage purporting to encumber the property; six days later Parkman attempted to donate her remaining one-half to Porter but Porter never accepted.
- Porter died in December 2013; Ocwen Loan Servicing filed a declaratory judgment in 2017 seeking recognition of the mortgage as valid against Parkman and Porter’s unopened succession.
- Parkman filed an exception of no cause of action arguing (1) the mortgage lacks a legal description and is therefore invalid, and (2) Porter did not own 100% when she mortgaged the property because Parkman’s attempted donation was not accepted.
- The trial court denied the exception; Parkman sought supervisory review. The appellate court reviewed de novo whether the petition, on its face, stated a cause of action.
- The court found the mortgage facially invalid for failing to state a legal description, the 2003 donation was invalid (no acceptance), and Ocwen failed to plead a valid cause of action; the case was reversed and remanded to allow amendment under La. C.C.P. art. 934.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of property description in mortgage | Municipal address is sufficient to identify property (Quality supports sufficiency) | Mortgage must "state precisely" nature and situation; address alone is insufficient | Mortgage invalid on its face for lacking legal description; address alone insufficient |
| Effect of attempted donation inter vivos (acceptance) | After-acquired title or tacit acceptance by Porter's mortgage or payments cures title defect | Donation invalid: acceptance required by authentic act and did not occur; mortgage preceded donation | Donation invalid (no acceptance); after-acquired title and tacit acceptance do not cure defect |
| Whether a valid mortgage at least on Parkman’s half exists | At minimum mortgage encumbers Parkman’s half, so relief still possible | Mortgage is invalid overall due to defective description; cannot be enforced | No valid mortgage due to defective description; cannot be enforced against Parkman |
| Standing to contest mortgage | Ocwen: Parkman didn’t sign mortgage, so defense is personal to Porter | Parkman: as co-owner of record interest she may challenge mortgage validity | Parkman has standing to challenge because she is an owner and was named defendant by Ocwen |
Key Cases Cited
- Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc., 396 So.2d 878 (La. 1981) (factors for granting supervisory review of interlocutory judgments)
- Quality Envtl. Processes, Inc. v. I.P. Petroleum Co., Inc., 144 So.3d 1011 (La. 2014) (addressed sufficiency of property description for notice in conveyance context)
- Norman H. Voelkel Const. Inc. v. Recorder of Mortgages for E. Baton Rouge Par., 859 So.2d 9 (La. App. 1 Cir. 2003) (municipal address insufficient to perfect a privilege; liens strictly construed)
- Durham v. First Guar. Bank of Hammond, 331 So.2d 563 (La. App. 1st Cir. 1976) (security devices strictly construed)
- First Fed. Sav. & Loan Ass'n of Warner Robins v. Delta Towers, Ltd., 544 So.2d 1331 (La. App. 4th Cir. 1989) (ratification of earlier mortgages by subsequent documents)
- Tri-State Bank & Trust v. Moore, 609 So.2d 1091 (La. App. 2 Cir. 1992) (ratification principles for curing earlier defects)