Opinion
Civil Action No. 03-1666 Section: E/2.
August 27, 2004
ORDER AND REASONS
Defendants Fairbanks Capital Corporation and Bank of New York Trust U/A Dated 12/01/01 (EQCC Trust 2001-2) (collectively "BONY") filed a motion for summary judgment. Rec. Doc. 15. Plaintiff opposes the motion, which was submitted on the briefs without oral argument at an earlier date. For the reasons that follow, the motion is GRANTED.
BACKGROUND
On September 15, 2003, the plaintiff in this action, Gerard Garbutt, Sr. ("Garbutt") filed this lawsuit identified as "Petition for Preliminary Injunction" against the defendants. While the lawsuit does not request an injunction of any kind, it alleges "false prosecution", "breach of agreement", "[u]nlawful, unfair and deceptive business practices", "[v]iolation of Louisiana consumer legal remedies act", "[f]raud and deceit by uniform misrepresentation of material facts", and finally, "[f]raud and deceit by uniform concealment".
The petition itself sheds little light on the facts giving rise to Garbutt's lawsuit, but the Court gleaned additional factual background from BONY's memorandum in support of its motion for summary judgment and Garbutt's opposition to the motion. On March 22, 1999, Garbutt borrowed $32,500.00 from One Stop Mortgage, Inc., to purchase a house at 1926 Benton Street in New Orleans. The note was secured by a mortgage on the property. BONY, the current holder of the note, is the successor in interest to the original lender. Garbutt defaulted on the note in March of 2002. On January 9, 2003, BONY initiated foreclosure proceedings in Civil District Court for the Parish of Orleans, Docket No. 03-332. A writ of seizure and sale was issued by that court on July 8, 2003. At some point, BONY placed the foreclosure procedure on hold pending the finalization of a repayment plan. The foreclosure procedure was still on hold when BONY was served with a copy of this lawsuit. On February 19, 2004, the mortgaged premises were adjudicated to BONY at a sheriff's sale. On May 6, 2004, BONY filed this motion for summary judgment dismissing Garbutt's lawsuit.
ANALYSIS
A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L. Ed. 3d 265 (1986); Bridgmon v. Array Systems Corp., 325 F.3d 572, 576 (5th Cir. 2003); Fed.R.Civ.P. 56(c). An issue is material if its resolution could affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). In deciding whether a fact issue has been created, we must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). However, once a moving party properly supports a motion for summary judgment, the nonmoving party "must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial."Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311-12 (5th Cir. 1999), quoting Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996). The nonmoving party cannot satisfy its burden with "unsubstantiated assertions" or "conclusory allegations." Id.
Garbutt is proceeding pro se and in forma pauperis. To insure equal access to the courts, courts must interpret pleadings of pro se litigants broadly and liberally. Scott v. State of Texas, 2002 WL 32075770 *3 at n. 6 (E.D. Tex.), citing United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996).
Garbutt's petition alleges a number of causes of action that are not expressed with precision. It does expressly allege "[u]nlawful, unfair, and deceptive business practices" and "[v]iolation of Louisiana consumer legal remedies act." However, all of the causes of action allege some form of fraud and deceit on defendants' part. The gravamen of Garbutt's petition is that he was lead to believe that BONY had agreed to a repayment plan by which he could avoid foreclosure, and even though he made payments pursuant to that repayment plan, BONY refused to accept his November and December 2002 payments and proceeded with the foreclosure. He claims that BONY's practice is to "fraudulently mislead their clients to believe that they have been placed into a program to avoid foreclosure then later announce no such program exists."
Fraud is not to be presumed, and the party alleging fraud bears the burden of proving it. McPhail v. Louisiana Farm Bureau Rice, Inc., 419 So.2d 977 (La.App. 3 Cir.), writ denied, 421 So.2d 908 (La. 1982), citing Altex Ready-Mixed Concrete Corp. v. The Employers Commercial Union Credit Ins. Co., 308 So.2d 889 (La.App. 1 Cir.), writ refused, 312 So.2d 872 (La. 1975). To recover under the Louisiana Unfair Trade and Consumer Protection Law (LUPTA), LSA-R.S. 15:1401 et seq., a plaintiff must prove some element of fraud, misrepresentation, deception or other unethical conduct. Tubos de Acero de Mexico, S.A. v. American Intern. Inv. Corp., Inc., 292 F.3d 471, 480 (5th Cir. 2002). "Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." La. Civ. Code art. 1953. The existence of fraud is a question of fact.Whitehead v. American Coachworks, Inc., 837 So.2d 678, 682 (La.App. 1 Cir. 2002), citing Coffey v. Block, 762 So.2d 1181, 1186 (La.App. 1 Cir.), writ denied, 772 So.2d 651 (La. 2000). "Fraudulent intent, which constitutes the intent to deceive, is a necessary element of fraud." Id., citing Smith v. Roussel, 809 So.2d 159, 164 (La.App. 1 Cir. 2000).
Garbutt claims that sometime in May, 2002, he spoke by telephone with a representative of Fairbanks Capital that he can identify only as "Mrs. Phylis", who placed him (or his account) in a program to satisfy the delinquent amount during his period of "employment layoff". Pursuant to the verbal agreement, he was to make an initial payment of $1,100.00 in May, 2002, and $500.00 per month for nine months until the delinquent amount was satisfied. At that time, the payments on the note were current only through October, 2001. See Plaintiff's Opposition, Ex. B, Loan Servicing Center's Customer Account Activity Statement ("Activity Statement"). As evidence of the agreement, Garbutt produced a Western Union receipt for $1,100.00 dated 5/24/02, a U.S. Postal Service receipt for $500.00 dated 7/19/02, and another Western Union receipt for $1,000.00 dated 7/24/02, all sent to Fairbanks Capital. See Plaintiff's Opposition, Ex. A. Garbutt alleges that Fairbanks Capital violated the agreement when it refused to accept and returned his November and December, 2002, payments and proceeded with the foreclosure.
While denying that it had an employee identified as Mrs. Phyllis, BONY acknowledged in its Response to Garbutt's petition that the foreclosure had been "put on hold pending the finalization of a repayment plan." Garbutt's initial payment in May, 2002, is reflected on the Activity Statement at 5/29/02 as an "escrow only" payment of $723.00, $240.69 placed in "suspense", and $11.35 and $124.96 each identified as "payment shortage advance", for a total of $1,100.00. His payment of $500.00 on 7/19/02 (via U.S. Postal Service) is not reflected on the Activity Statement, but a payment of $1,000.00 on 7/30/02 is. The Activity Statement shows a payment of $375.85 (the original monthly payment amount) received on 9/13/02, and a payment of $500.00 on 10/04/02.
Even accepting all of Garbutt's assertions as true, he still has produced no evidence of fraud on the part of BONY. Assuming that BONY did verbally agree to the repayment schedule described by Garbutt, he failed to make the payments as agreed. No payment was made in June, and even though Garbutt produced a receipt from the U.S. Postal Service for a payment in July, the Activity Statement does not show that the payment was received. A subsequent payment of $1,000.00 might account for late June and July payments, but no payment was made in August, only a $375.85 payment was made in September, and a $500.00 payment made in October, 2002, was placed in "suspense". That final payment brought the account current to February, 2002. Garbutt did not make the $500.00 monthly payments regularly in order to bring his account current as required by the agreement he described. He, not BONY, breached the agreement. Garbutt has failed to raise a genuine issue of material fact and BONY is entitled to judgment as a matter of law.
Finally, Garbutt's petition names the State of Louisiana and the Civil Sheriff of Orleans Parish as defendants. The State of Louisiana was never served. The record shows that the Orleans Parish Civil Sheriff was served on October 9, 2003, but never answered. A sheriff may be liable for the breach of an official duty. See LSA R.S. 33:1433 and Foster v. Hampton, 352 So.2d 197, 202 (La. 1977). Other than an allegation of "false prosecution brought by the defendants", which might arguably be a reference to the civil sheriff's official acts during the foreclosure proceedings, the Petition makes no claims of any kind against any party other than "Fairbanks Capital", and offers no facts whatsoever in support of the claim of "false prosecution". The Court concludes that any claims Garbutt may have contemplated against the Orleans Parish Civil Sheriff should be dismissed for failure to prosecute.
"Malicious prosecution" is defined in Black's Law Dictionary, (7th Ed. 1999) as "[t]he institution of a criminal or civil proceeding for an improper purpose and without probable cause". BONY's motion for summary judgment provides ample evidence that its foreclosure on Garbutt's house was procedurally proper and legal.
Accordingly, IT IS ORDERED that defendants' motion for summary judgment be and is hereby GRANTED; and,
IT IS FURTHER ORDERED that any claims against the Orleans Parish Civil Sheriff be DISMISSED for failure to prosecute.