Patterson et al v. Dean Morris, LLP et al

Filing 305

ORDER granting 188 Motion for Summary Judgment. ORDERED that all claims of Willie Brown against Dean Morris, LLP, George B Dean, Jr, John C. Morris, III, Charles H. Heck, Jr, and Candice A. Courteau are dismissed. Signed by Judge Stanwood R. Duval, Jr. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MARY & LARRY PATTERSON, ET AL

CIVIL ACTION

VERSUS

NO. 08-5014

DEAN MORRIS, L.L.P., ET AL

SECTION “K”(2)

ORDER AND OPINION

Before the Court is the “Motion for Summary Judgment” filed on behalf of defendants Dean
Morris, LLP, George B. Dean, Jr., John C. Morris, III, Charles H. Heck, Jr., and Candace A.
Coutreau (referred to collectively herein after as “Dean Morris”) (Doc.188) seeking to dismiss all
claims of plaintiff Willie Brown against Dean Morris. Having reviewed the pleadings, memoranda,
and relevant law, the Court, for the reasons assigned, GRANTS the motion.
BACKGROUND
On September 27, 1990, Willie and Carolyn Brown executed a $67,989.00 promissory note
payable to Fleet Mortgage Corporation (“Fleet”). (Doc. 188, Ex. A -Brown 1). The Browns
secured the promissory note with a mortgage on property located at 4424 Perrault Walk, New
Orleans, Louisiana. (Doc. 188, Ex. A - Brown 3). Fleet assigned the mortgage to U.S. Bank, N.A.
as Trustee with respect to Structured Asset Securities Corporation FHA/VA Mortgage Pass-Through
Certificates, Series 1998-RF3 ( “U.S. Bank”). (Doc. 188, Ex. A - Affidavit of George B. Dean, Jr.
and John C. Morris, III, ¶ 4, Doc. 188, Ex. A - Brown 2). Aurora Loan Services (“Aurora”) serviced
the loan.
In early 2002, the Browns failed to make their monthly payment on the note and mortgage.
(Doc. 188, Ex. A, Affidavit of George B. Dean, Jr. and John C. Morris, III, ¶ 6, Doc. 188, Ex. A -

Brown 4). Aurora sent the loan to Dean Morris, L.L.P. to institute foreclosure proceedings. (Id. at
¶ 6). On July 11, 2002, Dean Morris, acting on behalf of U.S. Bank, filed a “Petition for Executory
Process” in the Civil District Court for the Parish of Orleans, seeking, among other things, a Writ
of Seizure and Sale to sell the mortgaged property. (Doc. 188, Ex. A - Brown 4). Upon filing the
petition for executory process, Dean Morris paid $248.00 to the Clerk of Court and advanced
$1,200.00 in costs to the Civil Sheriff. (Doc. 188, Ex. A - Brown 6, 7). The state court judge
ordered that a Writ of Seizure and Sale issue. (Doc. 188, Ex. A - Brown 5).
On July 8, 2002, Willie Brown authorized Market Mortgage (“Market”) to request on his
behalf a payoff quote on his loan. (Doc. 188, Ex. A - Brown 8). On July 12, 2002, Dean Morris,
L.L.P. provided an “Estimate Payoff quote,” good through August 1, 2002, which reflected the
following figures:
Principal Balance
Interests
Property Preservation
Late Charges
Corporate Advance
Attorneys Fees
Abstract
*Clerk
*Sheriff
*Sheriff’s Commission
*Total
*Estimates

59,766.33
2,838.90
35.00
110.58
65.50
900.00
393.00
348.00
1,200.00
1,884.49
67,541.80

(Id.).
On August 6, 2002, Market requested a second payoff proposal. (Doc. 188, Ex. A - Brown
9). On August 15, 2002, Dean Morris provided Market with an “Estimated Payoff quote,” good
through September 1, 2002, which reflected the following amounts:
Principal Balance

59,766.33
2

Interests
Property Preservation
Late Charges
Corporate Advance
Attorneys Fees
Abstract
*Clerk
*Sheriff
*Sheriff’s Commission
*Total
*Estimates

3,312.05
35.00
138.07
45.40
900.00
403.00
348.00
1,354.00
1,898.91
68,200.76

(Doc. 188, Ex. A - Brown 10).
On September 13, 2002, Gwen Dixon of the Youth & Adult Enrichment Network
(“YAENI”) requested from Dean Morris, on behalf on the Browns, a reinstatement proposal on the
Browns’ loan. (Doc. 188, Ex. A - Brown 16). On September 18, 2002, prior to Dean Morris
sending Gwen Dixon a reinstatement proposal for the Browns’ loan, Mr. and Mrs. Brown filed a
Voluntary Petition for Chapter 13 bankruptcy.1 (Doc. 188, Ex. A - Brown 12). Once Dean Morris,
L.L.P. learned that the Browns had filed for bankruptcy, Dean Morris put the foreclosure proceeding
on hold and cancelled the sale scheduled for October 3, 2002. After the cancellation of the sale of
the Browns’ property, the Civil Sheriff sent a bill totaling $824.26 to Dean Morris; the bill indicated
that Dean Morris was entitled to a $375.74 refund which the Civil Sheriff sent. (Doc. 188, Ex. A Brown 13). The foreclosure proceeding remained pending.
After halting the foreclosure proceedings, Dean Morris billed Aurora for its work on the
foreclosure. Aurora paid Dean Morris $2,425.26 which Dean Morris credited, along with the
$375.74 refund2 from the Civil Sheriff, as follows:

1

In re Willie B. Brown, Jr, No. 02-16850 (E.D. La.).

2

The total amount credited was $2,801.00.
3

Sheriff
Clerk of Court
Outsourcer Funds
Title Search/Review/Subtract
Mennonite Notices
Attorneys’ Fee

$1,200.00
$ 248.00
$ 100.00
$ 423.00
$ 112.50
$ 717.50

(Doc. 188, Ex. A, Affidavit of Charles George B. Dean, Jr. and John C. Morris, III, ¶16).
The Browns filed bankruptcy schedules indicating that they had $20.00 “Cash on hand.”
The Browns listed “U.S. Bank c/o Dean Morris” as a creditor holding a secured claim for
$60,000.00 and indicated that they had “mortgage arrears” on their residence in the amount of
$12,000.00. (Doc. 188, Ex. A - Brown 14). They stated an intent to pay 100% of the arrears amount
over 48 months, i.e. $25.00 per month for the first twelve (12) months and $325 per month for the
next 36 months. Those amounts were incorporated into their Chapter 13 Plan which provided for
a monthly payment of $350.00 for the first twelve (12) months and $852.61 per month for the next
thirty six (36) months. (Doc. 188, Ex. A - Brown 14, 15). U.S. Bank was not the only secured
creditor listed in the Browns’ bankruptcy schedules.
On September 25, 2002, Dean Morris sent Gwen Dixon an “Estimated reinstatement quote”
for the Browns’ loan stating the following amounts:
Payments due
Late Fees
Corporate Advance
Property Inspections
Attorney Fees
Abstract
*Clerk
*Sheriff
*Sheriff Commission
*Total
* Estimates

5,513.84
193.05
37.50
35.00
900.00
448.00
348.00
2,500.00
173.38
10,148.77

(Doc. 188, Ex. A - Brown 17).
4

The bankruptcy judge confirmed the Browns’ plan on December 10, 2002. (Doc.188, Ex.
A - Brown 18). Aurora filed a proof of claim indicating an arrearage of $7,482.37 at the time the
Browns filed for bankruptcy, which included the following:
Payments
Payment Late Charges
Additional Late Charges
Escrow Shortages
Pre-petition Legal Fees
Pre-petition Legal Costs
Additional charges
Suspense Balance (Subtracted)
Total Arrearages:

$4,826.00
$ 193.05
$
0.00
$
0.00
$ 900.00
$1,625.26
$ 37.50
$
0.00
$7,482.37

(Doc. 188, Ex. A - Brown 19). The proof of claim also reflected a “Total Secured Debt” of
$66,311.42. (Id.). The Browns did not object to Aurora’s proof of claim. On April 1, 2003, the
Chapter 13 Trustee filed a “Notice of Intent to Pay Claims including the claim for mortgage
arrearages to Aurora totaling $7,482.37 which included pre-petition legal fees and legal costs.
(Doc. 188, Ex. A - Brown Ex. 20).
The Browns proved unable to maintain the payments under their confirmed plan. (Doc. 188
Ex. A- Brown 21). Even after amending their plan, the Browns were unable to make the payments
called for in the plan. On May 26, 2005, the Trustee filed a “Motion to Dismiss Case or Compel
Compliance” (Doc. 188, Ex. A - Brown 35). The bankruptcy judge dismissed the Browns’
bankruptcy on July 8, 2005 for noncompliance and ordered that the stay pursuant to 11 U.S.C. §362
be vacated and set aside. (Doc. 188, Ex. A - Brown 36). Thereafter the Trustee filed his Final
Report and Account stating that the Browns had paid $3,6640.46 in principal to Aurora during the
bankruptcy proceeding. (Doc. 188, Ex. A - Brown 37). That amount is less than the $4,826.00 in
past due payments shown on Aurora’s proof of claim.

5

Less than a month after the discharge of their Chapter 13 petition for bankruptcy, the Browns
filed In re Willie Brown, No. 05-16230 (E.D. La.), a second voluntary petition for Chapter 13
bankruptcy. (Doc. 188, Ex. A - Brown 40). The schedules filed in connection with that bankruptcy
petition showed $10.00 “Cash on hand” and $10.00 in a Louisiana Federal Credit Union account.
The schedules listed “U.S. Bank c/o Dean Morris, LLP” as a creditor and indicated that the mortgage
with U.S. Bark was $9,000.00 in arrears. The Browns proposed paying 100% of the arrearage over
48 months at a rate of $140.00 for the first 36 months and then $330.00 per month for the next 12
months. (Doc. 188, Ex. A - Brown 41). The bankruptcy judge confirmed the Browns’ plan. (Doc.
188, Ex. A - Brown 43). After the confirmation of the plan, Aurora filed a proof of claim for
$9,850.59 arrearages on the home mortgage at the time the Browns filed the second mortgage;
specifically the arrearages were itemized as follows:
Past Due Payments for the months of
July, 2004 through July, 2005
NSF Fees
Post-petition Bankruptcy Fees
Escrow Shortage
Attorney’s Fees Re: Foreclosure
Bankruptcy Attorney Fees
Total

$8,841.82
$ 50.00
$ 100.00
$ 309.77
$ 550.00
$
75.00
$9,850.59

(Doc. 188, Ex. A - Brown 44). Aurora later amended its proof of claim to list arrearages totaling
$9,012.04 as follows:
Past Due Payments for the months of
July, 2004 through July, 2005
NSF Fees
Post-petition Bankruptcy Fees
Escrow Shortage
Attorney’s Fees Re: Foreclosure
Bankruptcy Attorney Fees
Property Preservation
Suspense
6

$8,841.82
$ 50.00
$ 100.00
$ 309.77
$ 550.00
$
75.00
$
24.00
$ (938.55)

Total

$ 9,012.04

(Doc. 188, Ex. A - Brown 45).
Hurricane Katrina struck New Orleans on August 29, 2005 causing extensive damage to the
city as well as to the Browns’ property. In November 2005, after the Browns defaulted on their
Chapter 13 plan payments, their bankruptcy counsel requested a suspension of plan payments
stating that Mrs. Brown had been laid off from her job and that Mr. Brown, a cab driver, had earned
no income for “2+ mos.” (Doc. 188, Ex. A - Brown 46). On November 3, 2005, the Browns
notified the bankruptcy court that their mailing address had changed from 4424 Perrault Walk, New
Orleans to an address in Baton Rouge. (Doc. 188, Ex. A. - Brown 47). On December 29, 2005, the
Trustee objected to the confirmation of the Chapter 13 plan stating “Plan Unfeasible as Proposed.
Debtors are not employed.” (Doc. 188, Ex. A - Brown 49).
The Browns received $68,000.00 in insurance proceeds for damages to their home.
Thereafter on January 4, 2006, the Browns filed a “Motion for Declaratory Relief to Declare
Debtor’s Loan to Aurora Loan Services/U.S. Bank Paid in Full for Return of Promissory Note
Marked ‘PAID’ and Mortgage Marked Cancelled.” (Doc. 188, Ex. A - Brown 51). The next day
Aurora provided the Browns’ bankruptcy counsel with a payoff statement reflecting the following:
Principal Balance
Interest
Corporate Advance
Unpaid Other Fees
Recording Fee

$56,443.97
$ 8,443.97
$ 300.00
$
25.00
$
20.00

Total Amount of Payoff

$ 64,832.27

(Doc. 188, Ex. A - Brown 52). The Browns paid their loan in full, and on March 3, 2006, the
bankruptcy judge granted the Browns’ motion for declaratory relief. (Doc. 1288, Ex. A - Brown 63

7

(Doc. #40)). The Browns were discharged in bankruptcy on June 1, 2006. (Doc. 188, Ex. A - Brown
63).
On February 17, 2005, while both the bankruptcy and foreclosure proceedings remained
pending, Willie Brown, as well as a number of other plaintiffs, filed a putative class action suit
against Dean Morris and various lender defendants alleging a variety of claims in the Civil District
Court for the Parish of Orleans. Following two unsuccessful attempts to remove the case to federal
court, a defendant successfully removed the suit to this Court in 2008. The petition alleges a class
of lender defendants consisting of lenders “who used Dean Morris as their attorney, agent, and/or
employee, and for whom or during the representation of whom Dean Morris charged and/or
collected excessive fees and/or expenses from members of the Plaintiff Class.” Patterson v. Dean
Morris, No. 08-5014, Fifth Supplemental and Amending Petition for Damages, ¶ IX. The petition
further alleges that “Dean Morris, acting as the attorney, agent, and/or employee of all of the Lender
Defendants instituted collection and/or foreclosure proceedings against the named plaintiffs . . . for
sums alleged to be due under mortgages held by the Lender Defendants[]” and that Dean Morris
“overstated to the named plaintiffs and to members of the Plaintiff Class the amount of court costs,
sheriff’s fees, attorney’s fees and/or other expenses, thus impairing the rights of and causing harm
to plaintiffs and members of the Plaintiff Class Id, at ¶ IX, ¶ XI. Plaintiffs also allege that “[t]he
Lender Defendants’ obligations under the mortgage and related agreements were non-delegable such
that the Lender Defendants are liable for the acts and omissions of their attorney, with respect to
these obligations.” Id. at ¶ XIV. The petition seeks damages under the following causes of action:
•
•
•
•

conversion;
unjust enrichment;
intentional misrepresentation and fraud;
negligent misrepresentation;
8

•
•

breach of contract; and
civil conspiracy.

While the suit remained pending in state court, the state district judge dismissed plaintiffs’
negligence claims against Dean Morris. Dean Morris now seeks summary judgment on all of Willie
Brown’s remaining claims.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should
be granted "if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." The party moving for summary judgment bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the record "which it believes demonstrate the absence of a genuine issue of
material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), citing Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 912-13 (5th Cir.), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2552-53, 91 L.Ed.2d 265 (1986). When the moving party has carried its burden under Rule
56, its opponent must do more than simply show that there is some metaphysical doubt as to the
material facts. The nonmoving party must come forward with "specific facts showing that there is
a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th
Cir.1995).
“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’ ” Pylant v. Hartford Life and Accident Insurance Company, 497
F.3d 536, 538 (5th Cir. 2007) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). Summary judgment evidence must be “viewed in the light most
9

favorable to the nonmovant, with all factual inferences made in the nonmovant’s favor.” Bazan ex
rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir. 2001), citing Anderson v. Liberty Lobby,
Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
[C]onclusory statements, speculation, and unsubstantiated assertions
cannot defeat a motion for summary judgment. The Court has no
duty to search the record for material fact issues. Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports his claim.
RSR Corporation v. International Insurance Company, 612 F.3rd 851, 857 (5th Cir. 2010).
Intentional Misrepresentation and Fraud
Because all of the claims alleged by plaintiff assert Louisiana state law claims, the Court
applies Louisiana substantive law in analyzing the claims. To establish a claim for intentional
misrepresentation a plaintiff must prove: “(1) a misrepresentation of a material fact, (2) made with
the intent to deceive, (3) causing justifiable reliance with resulting injury.” Systems Engineering
and Security, Inc. v. Science & Engineering Associations, Inc., 962 So.2d 1089, 1091(La. App. 4th
Cir. 2007) (internal quotation and citation omitted). Plaintiff asserts that the reinstatement and
payoff proposals included inflated attorneys fees and costs, as well as a “Corporate Advance” fee
which the Browns were not responsible for paying.
Plaintiff has produced no competent summary judgment demonstrating that he relied on the
alleged overcharges and improper charges and sustained damage by relying on those disputed
charges. The first two estimated payoff quotes were provided by Dean Morris to Market,
apparently in connection with an attempt by the Browns to refinance their loan. Plaintiff has not
submitted any evidence even suggesting that the amounts listed on the payoff quotes as attorneys
fees and costs, including the “Corporate Advance” had a negative impact on the Browns’ attempt
10

to refinance the loan.

Nor is there any evidence suggesting that Mr. Brown had the financial

resources to pay even the undisputed outstanding amounts owed on the loan, e.g., the monthly
principal and interest and the late fees. Absent evidence that the currently disputed portions of the
payoff quotes were the only impediments to refinancing the loan or otherwise paying off the loan,
Mr. Brown has failed to raise a genuine issue of material fact concerning his reliance on the alleged
improper charges and damages sustained due to that reliance with respect to the alleged
misrepresentations in the July 12, 2002 and August 6, 200 pay off proposals. Dean Morris is
therefore entitled to summary judgment on plaintiff’s claim for intentional misrepresentation
involving those payoff proposals.
Nor has Mr. Brown produced any evidence that he relied on the September 25, 2002
reinstatement quote provided by Dean Morris to Gwen Dixon or that he sustained damages as a
result of that reliance. At the time that Dean Morris provided Ms. Dixon with that reinstatement
quote, the Brown had already filed their petition for bankruptcy protection.

Thus, the

representations in that proposal could not have caused or impacted the filing of the bankruptcy.
Thus, Dean Morris is entitled to summary judgment on the intentional misrepresentation claim
related to the September reinstatement quote.
Mr. Brown also claims intentional misrepresentation with respect to the costs and fees in the
January 5, 2006 payoff proposal sent by Aurora to Mr. Brown’s bankruptcy counsel. Plaintiff has
not provided any evidence of a misrepresentation concerning the $300.00 “Corporate Advance”
charge, the $25.00 “Unpaid Other Fees” or the $20.00 “Recording Fee.” Given the absence of
evidence of a misrepresentation concerning any of those charges, Dean Morris is entitled to
summary judgment on plaintiff’s intentional misrepresentation claim based on the January 5, 2006

11

payoff proposal.
Turning to plaintiff’s fraud claim, “[f]raud is a misrepresentation or a suppression of the truth
made with the intention to either obtain an unjust advantage for one party or to cause a loss or
inconvenience to another. Fraud may also result from silence or inaction.” La. Civ. Code art. 1953.
An action for fraud requires: “(1) a misrepresentation of material fact; (2) made with the intent to
deceive; and (3) causing justifiable reliance with resultant injury.” Gonzales v. Gonzales, 20 F.3d
557, 563 (La. App. 4th Cir. 2009). Because the elements of fraud are virtually identical to those
necessary to establish a claim of intentional misrepresentation, the same reasoning used in
analyzing the claims of intentional misrepresentation applies in evaluating the fraud claim. For the
reasons stated herein above, the motion for summary judgment on the fraud claim is granted.
Conversion Claim
“[C]onversion is a tort consisting of wrongfully depriving a person of possession of his
property. The fault may be either the original wrongful acquisition or the subsequent wrongful
detention of possession. But, there must be either a wrongful taking or a wrongful detention. ” Oge
v. Resolute Insurance Company, 217 So.2d 738, 740-741 (La. App. 3rd Cir. 1969), citing Import
Sales, Inc. v. Lindeman, 92 So.2d 574 (1957). There is no evidence that Mr. Brown paid Dean
Morris any money. Nor is there any evidence that prior to the foreclosure process being put on hold
that the Browns made any payment on their arrearage to Aurora or U.S. Bank which was then used
to fund Aurora’s payment of Dean Morris’s bill. Considering that lack of evidence, Mr. Brown
has failed to raise a genuine issue of material fact concerning whether Dean Morris wrongfully
deprived him of any property. Therefore, Dean Morris is entitled to summary judgment on
plaintiff’s conversion claim.

12

Unjust Enrichment
Article 2298 of the Louisiana Civil Code provides, in pertinent part, that:
A person who has been enriched without cause at the expense of
another person is bound to compensate that person. . . . The remedy
declared here is subsidiary and shall not be available if the law
provides another remedy for the impoverishment or declares a
contrary rule.
The requisite elements of a claim for unjust enrichment are: (1) an enrichment, (2) an
impoverishment, (3) a connection between the enrichment and the impoverishment, (4) an absence
of justification or cause for the enrichment and impoverishment, and (5) no other available remedy
at law. Baker v. Maclay Props. Co., 648 So.2d 888, 897 (La. 1995). “The unjust enrichment remedy
is ‘only applicable to fill a gap in the law where no express remedy is provided.’” Walters v.
MedSouth Record Management, LLC, 38 So. 3rd 243, 244 (La. 2010), quoting Mouton v. State, 525
So.2d 1136, 1142 (La. App. 1st Cir. 1988).
Dean Morris moves for summary judgment on this claim urging that because plaintiff has
other remedies available to him, he cannot state a claim for unjust enrichment. Defendant’s
contention is well founded.

Other remedies are, in fact, available to plaintiff, e.g., intentional

misrepresentation. In Walters v. MedSouth Record Management, LLC the Louisiana Supreme Court
concluded that because plaintiff had pleaded a delictual action, plaintiff was “precluded from
seeking to recover under unjust enrichment.” Id. The Court further opined, “[m]oreover, we find
it of no moment that plaintiff’s tort claims have been held to be prescribed. The mere fact that a
plaintiff does not successfully pursue another available remedy does not give the plaintiff the right
to recover under the theory of unjust enrichment.” Id. Similarly, “the existence of a claim on an
express or implied contract precludes application of actio de in rem verso, for there does not exist

13

one of the latter’s requirements, that there be no other remedy available at law (subidiarity).”
Morphy, Makofsky, & Masson, Inc. v. Canal Place 2000, 538 So.2d 569, 572 (La. 1989). That Mr.
Brown failed to prevail on the other remedies available to him does not negate the fact that such
remedies were available. The availability of an alternative remedy bars Mr. Brown’s claim for
unjust enrichment and entitles Dean Morris to summary judgment on his claim of unjust enrichment.
Civil Conspiracy
Article 2324A of the Louisiana Civil Code provides that “[h]e who conspires with another
person to commit an intentional or willful act is answerable in solido, with that person, for the
damage caused by such act.” However, it is well recognized that Article 2324 does not itself
“impose liability for a civil conspiracy.” Ross v. Conoco, Inc., 828 So.2d 546, 552 (La. 2002).
Rather, “[t]he actionable element in a claim under [Article 2324] is not the conspiracy itself, but
rather the tort which the conspirators agreed to perpetuate and which they commit in whole or in
part.” Id. (internal quotation and citation omitted).
As noted herein above, Mr. Brown has failed to establish a genuine issue of material fact
with respect to a tort claim against Dean Morris. Because Dean Morris is entitled to summary
judgment on all of plaintiff’s underlying tort claims, there can be no predicate tort claim for
plaintiff’s civil conspiracy claim. Therefore, Dean Morris is also entitled to summary judgment on
the civil conspiracy claim.
Moreover, even assuming arguendo that Mr. Brown had raised a genuine issue of material
fact with respect to a predicate tort offense, Dean Morris would nonetheless still be entitled to
summary judgment on this claim. To establish a conspiracy, plaintiff must produce evidence of an
agreement between the parties. Legier and Matherne, APAC v. Great Plains Software, Inc., 2005

14

WL 1431666, *8 (E.D. La. May 31, 2005).
Article 2324(A) requires a meeting of the minds or collusion between
the parties for the purpose of committing wrongdoing. Evidence of
such a conspiracy can be by actual knowledge of both parties or over
actions with one another, or that can be inferred from the knowledge
of the alleged co-conspirator of the impropriety of the actions taken
by the other co-conspirator.
Id. (internal quotation and citation omitted). Plaintiff does not offer any specific evidence to
establish the requisite agreement to commit a tort. In the absence of evidence of an agreement to
commit an underlying tort, Dean Morris is entitled to summary judgment on this claim.
Breach of Contract
The petition alleges that “Dean Morris’ actions on behalf of the Lender Defendants violated
provisions of the mortgage and related agreements between plaintiffs and the Lender Defendants.”
Patterson v. Dean Morris, Fifth Supplemental and Amending Petition for Damages, ¶ XIV. Under
Louisiana law, “[t]o assert a cause of action for breach of contract, the [plaintiff] must prove both
the existence of a contract and privity.” Terrebonne Parish School Board v. Mobil Oil Corporation,
310 F.3d 870, 888 (5th Cir. 2002).
Dean Morris contends that the claim must fail because there is no contract between Dean
Morris and Mr. Brown. Plaintiff claims that the “contract between Dean Morris and U.S. Bank, and
the applicable regulations, provide for an ‘allowable’ attorney fee for full foreclosure proceeding.
Plaintiff further contends that he “and other putative class members are third party beneficiaries of
the ‘allowable’ limitation on attorney’s fees imposed by regulation and incorporated into contracts
to which plaintiffs are third- party beneficiaries.” (Doc. 232, p. 8).
Under Louisiana law, “[a] contracting party may stipulate a benefit for a third person called
a third party beneficiary.” La. Civ. Code art. 1978. Because the Civil Code does not specify the
15

analytical framework for determining when a contract contains a stipulation pour autrui, the
requisite criteria have been jurisprudentially developed. Williams v. Certain Underwriters at
Lloyd’s of London, 2010 WL 4009818, *2 (5th Cir. October 13, 2010). Here, no analysis of the
individual criteria is required. Plaintiff has not submitted into evidence a copy of the contract
between Dean Morris and U.S. Bank or a copy of a contract between Dean Morris and Aurora, and
therefore the Court is unable to determine whether that contract includes a stipulation pour autrui
in favor of borrowers such as Mr. Brown. Moreover, even assuming arguendo that plaintiff is a
third party beneficiary under a contract between Dean Morris and U.S. Bank or Aurora, Dean
Morris is entitled to summary judgment on plaintiff’s claim for breach of contract. Although
plaintiff’s opposition to Dean Morris’s motion does not indicate the amount of the alleged
“allowable” limitation, the record in this case indicates includes a memorandum dated August 24,
2001 from the U.S. Department of Housing and Urban Development to “All Approved Mortgagees,”
indicating that the “allowable” amount for judicial foreclosures in Louisiana after October 1, 2001is
$900.00 (Doc. 207, Ex. P - Attachment 3). With respect to other plaintiffs in this litigation, counsel
for plaintiff has represented that the “allowable” amount is $900.00. Plaintiff has not offered any
evidence that Dean Morris received more than $900.00 in attorneys fees. Absent evidence of the
contract relied upon and that Dean Morris received more than the “allowable” attorneys fee, plaintiff
cannot raise a genuine issue of material fact on this claim for breach of contract.
Plaintiff also alleges that he had a right under the terms of his mortgage to reinstate a
delinquent loan, and that Dean Morris, by inflating and thereby misrepresenting the amount of
attorney’s fees and costs which had to be paid to bring the loan current, deprived him of the right
to reinstate his loan. Dean Morris is entitled to summary judgment on this claim as well. Plaintiff

16

has not submitted any competent summary judgment evidence that absent the alleged
misrepresentations by Dean Morris, he would have had the financial resources to reinstate his loan
and mortgage. Absent such evidence, plaintiff cannot raise a genuine issue of material fact on his
breach of contract claim that Dean Morris’s alleged misrepresentations deprived him of his right to
reinstate his loan. Accordingly, the Court grants Dean Morris’s motion for summary judgment and
dismisses plaintiff’s breach of contract claims. Accordingly,
IT IS ORDERED that all claims of plaintiff Willie Brown against defendants Dean Morris,
LLP, George B. Dean, Jr., John C. Morris, III, Charles H. Heck, Jr., and Candace A. Coutreau are
dismissed.3
New Orleans, Louisiana, this 6th day of May, 2011.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE

3

In moving for summary judgment Dean Morris also relied upon several affirmative
defenses, i.e., inability to sue an adversary’s attorney, waiver, settlement, and res judicata.
Having concluded for the reasons state herein above that Dean Morris is entitled to summary
judgment on all of plaintiff’s claims, the Court need not address those affirmative defenses.
17