Deutsche Bank Trust Company, N.A. v. Kenneth Wayne Vidrine

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-516

DEUTSCHE BANK TRUST COMPANY, N.A., ET AL.

VERSUS

KENNETH WAYNE VIDRINE, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20106311
HONORABLE ROYALE L. COLBERT, JR., DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of D. Kent Savoie, Charles G. Fitzgerald, and Gary J. Ortego,
Judges.

AFFIRMED.

Stephen W. Rider
Bennett E. Richardson
McGlinchey Stafford, PLLC
601 Poydras Street, 12th Floor
New Orleans, LA 70130
(504) 586-1200
COUNSEL FOR PLAINTIFF/APPELLEE:
Deutsche Bank Trust Company, N.A.

Garth J. Ridge
Attorney at Law
251 Florida St., Suite 301
Baton Rouge, LA 70801
(225) 343-0700
COUNSEL FOR DEFENDANTS/APPELLANTS:
Kenneth Wayne Vidrine
Annette Searle Vidrine

Penny M. Daigrepont
Attorney at Law
3510 N. Causeway Blvd. #600
Metairie, LA 70002
(504) 831-7726
COUNSEL FOR PLAINTIFF/APPELLEE:
Deutsche Bank Trust Company, N.A.

Lindsay G. Faulkner
Wanek Kirsch Davies LLC
1340 Poydras St., Ste. 2000
New Orleans, LA 70112
(504) 346-6493
COUNSEL FOR PLAINTIFF/APPELLEE:
Deutsche Bank Trust Company, N.A.

Amanda Stout
McGlinchey Stafford, PLLC
301 Main Street, Ste. 1400
Baton Rouge, LA 70801
(225) 383-9000
COUNSEL FOR PLAINTIFF/APPELLEE:
Deutsche Bank Trust Company, N.A.

ORTEGO, Judge.

This civil matter comes from a lawsuit filed pursuant to a loan secured by a

mortgage on defendants’/debtors’ land and home. The lender was granted

summary judgment with the trial court finding that the defendants owed the full

amount of the loan, plus interest and costs. The defendants appeal. For the

following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On November 18, 2003, Kenneth Vidrine executed an adjustable-rate

promissory note payable to Long Beach Mortgage Company in the amount of

$152,000.00. The note was secured with an act of mortgage executed by Kenneth

Vidrine and Annette Vidrine (the Vidrines) on real property improved with a home

located in Lafayette Parish, and the act of mortgage was duly recorded in Lafayette

Parish.

The promissory note was endorsed from Long Beach Mortgage Company to

Deutsche Bank National Trust Company (Deutsche Bank). On September 24,

2010, Deutsche Bank filed a petition for executory process, alleging that the note

and mortgage were due and unpaid, with no payment received for the June 1, 2010

installment.

The Vidrines responded by filing a petition for preliminary injunction and

permanent injunction to arrest seizure and sale of immovable property, asserting

they were not in default. The Vidrines claimed that the default was caused by the

loan servicer, Litton Loan Servicing (Litton), placing insurance on the property

beginning in 2008, even though the Vidrines had provided proof of a private

insurance policy. The Vidrines also claimed that Litton had placed unrequired

flood insurance on the property beginning in 2008. According to the Vidrines,

Litton charged to the loan $6,878.09 for these lender-placed insurance policies, and

this caused the mortgage to become delinquent. Deutsche Bank opposed the

Vidrines’ request for preliminary injunction because the Vidrines were in default at

the time the suit was filed, and the lender-placed insurance premiums were credited

to the Vidrines’ account. The trial court granted the preliminary injunction

preventing Deutsche Bank from proceeding with executory process.

Thereafter, Deutsche Bank converted this matter to an ordinary process. The

Vidrines answered Deutsche Bank’s petition and asserted a reconventional demand,

asserting claims under the Equal Credit Opportunity Act. The court dismissed the

Vidrines’ reconventional demand and granted Deutsche Bank’s exception of no

cause of action.

Then, Deutsche Bank amended its petition to clarify that Mrs. Vidrine was

an in rem defendant. The Vidrines answered the amended petition.

Deutsche Bank then filed their motion for summary judgment. After a

hearing, the trial court granted Deutsche Bank’s motion for summary judgment

against the Vidrines in the amount of $301,782.89, which included the principal

amount due; interest on the unpaid principal from June 1, 2010, to February 26,

2021; additional interest at the rate of 8.125% per annum from February 26, 2021;

and attorney’s fees of $2,500.00. The Vidrines appeal this judgment assigning two

errors.

ASSIGNMENTS OF ERROR

On appeal, the Vidrines assign the following errors by the trial court:

1. The Trial Court erred in granting plaintiff-appellee summary
judgment when the evidence presented at least a genuine issue
of material fact as to whether this suit was filed when the note
was in default.

2. The Trial Court erred in granting plaintiff-appellee summary
judgment when there were genuine issues as to the amount
owed.

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LAW AND DISCUSSION

I. Standard of Review

This court, in Byline Bank v. Alexandria Hospitality Partners, L.L.C., 21-

630, pp. 7-8 (La.App. 3 Cir. 5/25/22), 339 So.3d 786, 790-91, addressed the

standard of reviewing a motion for summary judgment, stating:

A court of appeal reviews summary judgments de novo, using
the same standard used by the trial court. Higgins v. Louisiana Farm
Bureau Cas. Ins. Co., 20-1094 (La. 3/24/21), 315 So.3d 838. Pursuant
to La.Code Civ.P. art. 966(A)(2), the summary judgment procedure is
favored and must be construed to accomplish its purpose of “the just,
speedy, and inexpensive determination of every action, except those
disallowed by Article 969.” Article 966(A)(3) further provides that the
“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.”

The Louisiana Supreme Court in Larson v. XYZ Insurance Co.,
16-745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416-17, further provides:

In ruling on a motion for summary judgment, the
judge’s role is not to evaluate the weight of the evidence
or to determine the truth of the matter, but instead to
determine whether there is a genuine issue of triable fact.
All doubts should be resolved in the non-moving party’s
favor. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876
So.2d 764, 765. A fact is material if it potentially ensures
or precludes recovery, affects a litigant’s ultimate success,
or determines the outcome of the legal dispute. A
genuine issue is one as to which reasonable persons could
disagree; if reasonable persons could reach only one
conclusion, there is no need for a trial on that issue and
summary judgment is appropriate. Id. at 765-66.

....

When a motion for summary judgment is made
and supported as provided in La. C.C.P. art. 967, an
adverse party may not rest upon the mere allegations or
denials of his pleadings, but his response, by affidavits or
as otherwise provided in La. C.C.P. art. 967, must set
forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if
appropriate, shall be rendered against him. La. C.C.P. art.
967(B); see also Dejoie v. Medley, 2008-2223 (La.
5/5/09), 9 So.3d 826, 832. Whether a particular fact in
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dispute is material can be seen only in light of the
substantive law applicable to the case. Richard v. Hall,
2003-1488 (La. 4/23/04), 874 So.2d 131, 137.

II. Genuine Issue of Material Fact - Note Status when Suit was Filed

In the Vidrines’ first assignment of error, they argue that the trial court erred

by granting Deutsche Bank’s summary judgment when the evidence presented

created a genuine issue of material fact as to whether the note was in default when

this suit was filed.

Deutsche Bank, as movant for the summary judgment, has the initial burden

of proving entitlement to judgment. Deutsche Bank filed suit against the Vidrines

on September 24, 2010. At the hearing, Deutsche Bank produced documents

proving the loan’s existence and terms, along with a detailed transaction payment

history of the loan, which were all accepted by the trial court. According to the

loan documents, the Vidrines were periodically one month behind on their

mortgage payments as far back as January 2006. While there were specific months

where the Vidrines would allegedly “catch up,” those times were far outnumbered

by times they were late or in default. As an example of this, the record shows that

the June 11, 2010 payment, sent by the Vidrines, was applied to the outstanding

May 1, 2010 note, and the Vidrines did not send another payment for the June 1,

2010 note.

In opposition, and according to Mr. Vidrine’s affidavit, he stated that their

July 2010 payment was for the August 1, 2010 note, and any further attempts by

them to pay any notes towards the mortgage were refused. However, and

according to the detailed transaction payment report submitted by Deutsche Bank,

this July 9, 2010 payment was the final payment the Vidrines attempted to make

toward the mortgage notes.

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A review of the full record shows that the Vidrines were, in fact, in default

when suit was filed on September 24, 2010, because the July payment, regardless

of whether it was credited towards the outstanding June, July, August, or

September delinquent note payment(s), there still remained several monthly notes

in default as of the date suit was filed.

Thus, we find the record fully supports the trial court’s finding that there

was no issue of material fact that the Vidrine’s note and mortgage were in default

when suit was filed in this matter. Accordingly, we find no merit to Appellant’s

first assignment of error.

III. Genuine Issue of Material Fact - Amount Owed

The Vidrines final assigned error is that the trial court erred in granting

Deutsche Bank summary judgment when there were genuine issues as to the

amount owed. We disagree.

Deutsche Bank, as movant for the summary judgment, has the initial burden

of proving entitlement to judgment. It produced documents proving the loan’s

existence and terms, a detailed transaction payment history of the loan, and

affidavit testimony of Sally Torres, a senior loan analyst. Ms. Torres testified, via

affidavit, that she had reviewed the loan records and that as of February 26, 2021,

the principal amount the Vidrines owed Deutsche Bank was $301,782.89. After

reviewing the evidence provided, we find that Deutsche Bank carried this initial

burden of proving entitlement to summary judgment.

Having found that Deutsche Bank carried that initial burden, we look to

whether the Vidrines, in their opposition to this motion for summary judgment, set

forth specific facts and evidence showing that there was a genuine issue for trial.

The Vidrines produced only the affidavit of Kenneth Vidrine to oppose the motion.

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Mr. Vidrine’s affidavit alleges that the Vidrines were charged improperly for

excessive late fees, fees designated as “Borr Auth Elec Fee,” and the cost of the

lender acquired insurance policies for fire and flood insurance. Further, in his

affidavit, he acknowledged that Deutsche Bank did credit the loan and returned

insurance payments tendered by the Vidrines in July 2010 and September 2010.

Regarding excessive late fees, our review of the record, and specifically the

detailed transaction payment history in evidence, reveals that the allegations in Mr.

Vidrine’s affidavit are misguided. The excessive late charges, cited by Mr. Vidrine

in his affidavit, are entries in the transaction history denoting the Vidrines paying

late fees incurred previously. As an example, Mr. Vidrine cites lines 190-193 to

indicate duplicate late fee charges. However, lines 190-193 detail four payments

of late charges in the amount of $72.10 for the Vidrines’ failure to pay their note

due in January, February, March, and April 2009. Thus, when the Vidrines paid

the May 2009 note, line 190 notes payment of the $72.10 late fee assessed in

January 2009, line 191 notes payment of the $72.10 late fee assessed in February

2009, line 192 notes payment of the $72.10 late fee assessed in March 2009, and

line 193 notes payment of the $72.10 late fee assessed in April 2009. The same is

true for the remaining entries referenced in Mr. Vidrine’s affidavit. Thus, we find

that there is no genuine issue of material fact regarding these alleged excessive late

fees.

Regarding the “Borr Auth Elect Fee,” Mr. Vidrine asserts in his affidavit

that they do not owe such a fee. However, a review of the record shows that there

is no evidence in this motion for summary judgment that Deutsche Bank attempted

to collect such a fee. Thus, this alleged fee is not relevant to this appeal.

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Next, Mr. Vidrine, via his affidavit, purports that genuine issues of fact exist

regarding insurance policies the lender purchased and placed on this property loan.

According to the Vidrines, these policies were not necessary, and charging them

for these policies was improper. In looking to the detailed transaction history of

the loan in evidence, the Vidrines were properly credited for the lender placed

insurance premiums prior to suit being filed. Specifically, lines 402 and 404

indicate that the Vidrines were credited with $3,015.98 and $1,916.25 on February

18, 2010, once the lender received proof of an insurance policy covering the

property from the Vidrines, and suit was not filed by Deutsche Bank until

September 24, 2010. The Vidrines further contend that they should have been

credited with the full amount of the policies acquired by the lender. However, the

record indicates that there was a period of time and a gap in coverage from May 5,

2008 through September 5, 2008, and despite claiming that they had a GEICO

policy that covered that period, the Vidrines failed to produce that policy or proof

of coverage. At the hearing, Deutsche Bank produced evidence it paid insurance

policy premiums to cover the property and thus was owed under the loan

agreement, for those payments, less the proper refunds issued to the Vidrines when

they produced proof of coverage. Thus, we find that no genuine issue of fact exists

regarding the propriety of Deutsche Bank receiving judgment for the paying of

insurance premiums to cover these periods of time and gap(s) in the Vidrines’

coverage.

The final issue raised in their opposition, via Mr. Vidrine’s affidavit, is

Deutsche Bank’s refusal of payments they allegedly attempted to make in July and

September 2010. A reading of the Vidrines’ mortgage, in evidence, and

specifically Paragraph 1 on Page 4 of their mortgage states, in pertinent part,

“[l]ender may return any payment of partial payment if the payment or partial
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payments are insufficient to bring the Loan current.” The record shows that these

payments allegedly attempted by the Vidrines were insufficient to bring the loan

current, thus, Deutsche Bank acted in accordance with the terms of the mortgage

and loan agreement.

Additionally, and in brief, the Vidrines argue that a genuine issue of material

fact exists regarding an item in Ms. Torres’s affidavit, that of the Recoverable

Balance, in the amount of $14,027.48. Our review of the loan documents, in

evidence, indicate that the lender may recover for those fees detailed as those

incurred for services performed in connection with the Vidrines’ default and in

connection with protecting the lender’s interest in the mortgaged property, such as

attorney’s fees, and property inspection and valuation fees. Although Ms. Torres’s

affidavit does not list those items separately, it properly accounts for these items

and fees under the heading of Recoverable Balance. The Vidrines further argue

that this Recoverable Balance line item is unexplained. However, they failed to

produce any evidence that the Recoverable Balance, and these expenses incurred

by the lender, were not properly assessed and owed to the lender under the terms of

their note and mortgage. We find that this mere allegation by the Vidrines is not

sufficient to create a genuine issue of material fact.

Finally, the Vidrines argued that the date from which interest was calculated

was incorrect. However, a review of Ms. Torres’s affidavit shows and details that

the interest owed was in fact properly calculated on the principal amount the

Vidrines’ owed from June 1, 2010 to February 26, 2021. Again, the Vidrines

failed to produce any evidence other than simply arguing that the calculation of the

interest due was incorrect. We find that this mere allegation by the Vidrines is not

sufficient to create a genuine issue of material fact.

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Accordingly, and given the above, we find that this assignment of error lacks

merit.

DECREE

Kenneth and Annette Vidrine raise two assignments of error alleging that

the trial court erred in granting Deutsche Bank’s motion for summary judgment.

After a de novo review, we find no error by the trial court. Accordingly, we affirm

the trial court’s judgment in its entirety. All costs of this appeal are assessed to

Kenneth and Annette Vidrine.

AFFIRMED.

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