Wells Fargo Bank, N.A. v. Jones et al

Filing 111

ORDER: IT IS HEREBY ORDERED that 92 Motion for Summary Judgment is GRANTED, and 94 Motion for Summary Judgment is GRANTED IN PART. The Court shall enter a judgment declaring the Mortgage extends to the entire property and is not subject to the Donation. Signed by Judge Wendy B Vitter on 9/10/2020. (jeg)

Case 2:19-cv-00593-WBV-DMD Document 111 Filed 09/10/20 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WELLS FARGO BANK, N.A.

CIVIL ACTION

VERSUS

NO. 19-593

BEVERLY JONES, ET AL.

SECTION D (3)
ORDER

Before the Court are Cross-Motions for Summary Judgment from Plaintiff
Specialized Loan Servicing, LLC, 1 and from Defendant Fidelity National Title
Insurance Company. 2 Defendants Kemba Jones-Ferbos and Antoine Ferbos have
filed Responses to both Motions, 3 and Fidelity National Title Insurance Company has
filed an Opposition to Specialized Loan Servicing’s Motion. 4

After careful

consideration of the Motions, the parties’ briefs, and the applicable law, the Court
GRANTS IN PART Specialized Loan Servicing’s Motion, GRANTS Defendant
Fidelity National Title Insurance Company’s Motion, and enters declaratory
judgment in favor of the Plaintiff.
I.

FACTUAL BACKGROUND
This case arises from a dispute over a mortgage. On May 31, 2006, Beverly

Jones donated an undivided one-half interest in her immovable property located at
2012 Churchill Street in Slidell, Louisiana to Kemba Jones-Ferbos and Antoine

R. Doc. 94.
R. Doc. 92.
3 R. Doc. 97; R. Doc. 98.
4 R. Doc. 100.
1
2

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Ferbos (herein, “the Donation”). 5 The next day, Jones executed a mortgage, including
a promissory note, with Wells Fargo Bank, N.A. secured by the same property at
Churchill Street (herein, “the Mortgage”). 6 Neither the Donation nor the Mortgage
were recorded on the day that they were executed. Rather, both were recorded on
June 13, 2006. The Mortgage was record as Instrument #1558259, whereas the
Donation was recorded as Instrument #1558261. 7
Upon learning of the Donation, Wells Fargo filed suit in the 22nd Judicial
District Court against Beverly Jones, Kemba Jones-Ferbos, and Antoine Ferbos,
seeking a declaration that the Mortgage applied to the whole property, including the
one-half purportedly owned by Jones-Ferbos and Ferbos, and sought to add JonesFerbos and Ferbos to the Mortgage. 8 Wells Fargo later amended its Complaint to
include Mahony Title & Land Service, LLC, Eileen Sykes, and Fidelity National Title
Insurance Company. 9 Mahony, Sykes, and Fidelity represented Wells Fargo during
the closing of its loan to Jones, and the Plaintiff contends that should it not succeed
in its claim for declaratory judgment, it is owed damages by these three defendants.10
Wells Fargo later transferred its interest in the mortgage to Specialized Loan
Servicing, LLC (“SLS”), who has been substituted for Wells Fargo as Plaintiff in this
matter. 11

R. Doc. 92-4.
R. Doc. 92-5; R. Doc. 92-6.
7 R. Doc. 92-4 at 1, R. Doc. 92-6 at 1.
8 R. Doc. 1-1.
9 R. Doc. 1-4.
10 See id.
11 See R. Doc. 71 (Motion to Substitute Party); R. Doc. 72 (Order granting Motion to Substitute Party).
5
6

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Both SLS and Fidelity now move for summary judgment. 12 SLS argues that
because the Mortgage has a lower record number in the St. Tammany Parish records,
the Mortgage applies to the entire property notwithstanding the Donation, which was
recorded later. In the alternative, SLS argues that it is owed damages by Fidelity.
Fidelity agrees with SLS that the Mortgage covers the entire property because it was
recorded before the Donation. Fidelity disagrees, however, that it owes a remedy if
the Court does not enter a declaratory judgment. Jones-Ferbos and Ferbos also filed
Responses to both Motions for Summary Judgment, in which they too agree that the
Mortgage extends to the entire property at issue. 13
II.

LEGAL STANDARD
Summary judgment is proper if the movant shows there is no genuine dispute

as to any material fact and that it is entitled to judgment as a matter of law. 14 If the
movant shows the absence of a disputed material fact, the non-movant “must go
beyond the pleadings and designate specific facts showing that there is a genuine
issue for trial.” 15 The Court views facts and draws reasonable inferences in the nonmovant’s favor. 16 The Court neither assesses credibility nor weighs evidence at the
summary judgment stage. 17

R. Doc. 92 (Fidelity); R. Doc. 94 (SLS).
R. Doc. 97; R. Doc. 98.
14 F ED. R. CIV. P. 56(a).
15 McCarty v. Hillstone Restaurant Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017).
16 Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018).
17 Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012) (internal citation omitted).
12
13

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III.

ANALYSIS

Here, the parties all agree that there are no disputed facts and they are also
largely agree on the application of the law to those facts. Specifically, it is black-letter
law in Louisiana that “an instrument involving immovable property shall have effect
against third persons only from the time it is filed for registry in the parish where
the property is located.” 18 Louisiana law also states that “transfer of ownership . . .
is not effective against third persons until the contract is filed for registry in the
conveyance records of the parish in which the immovable property is located.” 19
It is undisputed that although Jones made the Donation before signing the
Mortgage with Wells Fargo, the Donation was not recorded until after the Mortgage
was executed and recorded. 20 And because “no right of any nature in immovable
property can have any effect against third parties unless it is registered in the
conveyance records or recorded in the mortgage records for the parish in which the
property is located”21 the Donation was not effective as to Wells Fargo at the time the
Mortgage was entered into and recorded, and therefore the Mortgage extends to the
entirety of the property. The Court will therefore issue a declaratory judgment
finding that the entire property is subject to SLS’s mortgage.

La. Civ. Code. art. 1839. See also La. Civ. Code art. 3338 (“The rights and obligations established
or created by the following written instruments are without effect as to a third person unless the
instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant
to the provisions of this Title: (1) An instrument that transfers an immovable or establishes a real
right in or over an immovable.”).
19 La. Civ. Code art. 517.
20 Even were this fact disputed, the Mortgage has a lower record number (1558259) in the public record
than the Donation (1558261), which gives rise to an unrebutted presumption that the Mortgage was
recorded first. See Motor Finance Co v. Univ. Motors, 168 So. 721, 722 (La. App. 1 Cir. 1936).
21 Camel v. Waller, 526 So. 2d 1086, 1090 (La. 1988).
18

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SLS maintains its claims for damages only to the extent that the Court does
not grant declaratory judgment. 22 Because the Court finds declaratory judgment is
called for in this matter, it does not reach SLS’s request for damages from Fidelity.
IV.

CONCLUSION

IT IS HEREBY ORDERED that Defendant Fidelity National Title Insurance
Company’s Motion for Summary Judgment is GRANTED, and Plaintiff Specialized
Loan Servicing, LLC’s Motion for Summary Judgment is GRANTED IN PART. The
Court shall enter a judgment declaring the Mortgage extends to the entire property
and is not subject to the Donation.
New Orleans, Louisiana, September 10, 2020.

______________________________
WENDY B. VITTER
United States District Judge

See R. Doc. 94-3 at 3-4 (Memorandum in Support of SLS’s Motion for Summary Judgment stating
that SLS reserves its rights to claim damages should the Court not grant declaratory judgment).

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