Opinion
NUMBER 2022 CA 0410
11-04-2022
Brenell Lloyd BROWN and Mary Parks Brown v. UNITY MORTGAGE CORPORATION and Cenlar Administration and Reporting
Brenell Lloyd Brown, Mary Parks Brown, Gonzales, LA, Plaintiffs/Appellants, Pro Se
Brenell Lloyd Brown, Mary Parks Brown, Gonzales, LA, Plaintiffs/Appellants, Pro Se
BEFORE: , GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by pro se plaintiffs, Brenell Lloyd Brown and Mary Parks Brown, from a judgment of the trial court denying their petition for cancellation of a mortgage.
On July 1, 2020, plaintiffs filed a petition for cancellation of inscription of mortgage on property they owned, located at 13523 Parent Road in Gonzales, Louisiana, contending that the property was security for a "purported loan" from Unity Mortgage Company ("Unity") and/or Cenlar Central Loan Administration and Reporting ("Cenlar"), involving a promissory note and mortgage note "purportedly signed" on November 12, 2002. Plaintiffs attached a "Mortgage Certificate" prepared by the Ascension Parish Clerk of Court ("clerk of court") and a "Notice by Owner to Mortgage Company" to their petition. The Mortgage Certificate showed that the mortgage in favor of Unity was recorded on November 14, 2002 and later assigned to Citimortgage, Inc. Plaintiffs further averred that the mortgage note was recorded with the clerk of court on July 1, 2011. Despite this assertion, plaintiffs contended that the mortgage inscription had prescribed by the lapse of more than ten years "from the date of the obligation" and that the "mortgage has never been reinscribed" such that the mortgage was subject to cancellation pursuant to LSA-C.C. art. 3367. Plaintiffs contended that they forwarded a Uniform Cancellation Affidavit to Unity and Cenlar pursuant to LSA-R.S. 9:5166, requesting that they cancel the mortgage, to which plaintiffs received no response, thus necessitating these proceedings. The trial court signed an order setting the matter for hearing and ordering that Unity and Cenlar show cause why the petition for cancellation of mortgage should not be granted.
Although the order bears a hearing date of August 4, 2021, according to the transcript and minute entry, the matter was heard on August 3, 2021.
At the hearing, counsel appointed by the trial court to represent Unity indicated that he sent letters to Unity Mortgage Corporations registered with the Secretary of State in Chicago and Atlanta and had received no response. The trial court thus ordered the cancellation of the mortgage and indicated that it would sign a written judgment once prepared. Thereafter, the trial court signed an order on August 3, 2021, finding that, pursuant to LSA-C.C. art. 3367, the inscription of the mortgage had prescribed by the lapse of more than ten years from the date of the obligation, and ordering that the mortgage be erased by the clerk of court.
Although the trial court instructed the ad hoc counsel to file a note of evidence attaching copies of the letters that were sent, the letters do not appear in the record before us.
In response to an interim order issued by this court, the clerk of court for the district court certified that notice of the August 3, 2021 order was not issued. See LSA-C.C.P, art. 1913(B) and (C). A trial court has authority to grant a new trial, recall, modify or set aside a judgment within the time delays allowed for filing a motion for new trial. Horton v. Mayeaux, 2005-1704, pp. 5-6 (La. 5/30/06), 931 So. 2d 338, 341-342 ; South Louisiana Rank v. White, 577 So. 2d 349, 350 (La. App. 1st Cir. 1991) ; see also LSA-C.C.P. art. 1974 ("A party may file a motion for new trial not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment as required by Article 1913."). Where notice of the August 3, 2021 judgment was not issued herein, the delays for filing a motion for new trial had not begun to run. Thus, the trial court was within its authority to rescind the August 3, 2021 judgment in its November 8, 2021 judgment. See MedImpact Healthcare Systems, Inc. v. Division of Administration, 2021-1367 (La. App. 1st Cir. 6/3/22), 343 So. 3d 705, 711, n.4 and First Bank & Trust v. Fitness Ventures, L.L.C., 2017-0475 (La. App. 1st Cir. 12/6/17), 2017 WL 6031783, *3 (unpublished) (The recordation of the trial court that it signed the first judgment in error, within the time frame permitted for granting a new trial, persuades us that the second judgment is not invalid as an impermissible amended judgment.)
However, on August 18, 2021, the trial court issued an order requiring plaintiffs to show cause on September 9, 2021, why the petition for cancellation of mortgage should be issued pursuant to LSA-C.C. art. 3367. At the hearing, the trial court indicated that it was notified by the clerk of court that the mortgage plaintiffs were attempting to cancel was assigned and sold to another company, Citimortgage, Inc., which was never made a party to plaintiffs’ lawsuit. The trial court thus denied the petition and allowed plaintiffs the opportunity to further look into the matter. On November 8, 2021, the trial court signed a judgment denying plaintiffs’ petition for cancellation of inscription of mortgage and rescinding its prior August 3, 2021 order. Plaintiffs then filed the instant appeal of the November 8, 2021 judgment of the trial court.
At the outset, we note that plaintiffs petitioned the court to cancel the inscription of mortgage as prescribed by the lapse of more than ten years pursuant to LSA-C.C. art. 3367. Louisiana Civil Code article 3367, enacted by La. Acts 2005, No. 169, § 1, effective July 1, 2006, (formerly LSA-R.S. 9:5161 and 9:5162 ) provides that:
If the effect of recordation of a mortgage, pledge, or privilege has ceased for lack of reinscription or has prescribed by lapse of time under R.S. 9:5685, the recorder upon receipt of a written signed application shall cancel its recordation.
As succinctly explained in 1 La. Prac. Real Est. § 15:52 (2d ed.), the public records will reveal whether an encumbrance has been timely reinscribed since that determination is made on solely objective criteria based upon the rules of reinscription. For that reason, under LSA-C.C. art. 3367, if the effect of recordation of a mortgage, pledge or privilege has ceased for lack of reinscription, or has prescribed by lapse of time under LSA-R.S. 9:5685, the recorder upon receipt of a written signed application, shall cancel its recordation. No mandamus proceeding and no notice to the holder of the mortgage, privilege, judgment, or other encumbrance is necessary.
Louisiana Revised Statute 9:5685 provides for prescription against the state.
While cancellation pursuant to LSA-C.C. art. 3367 does not provide for or require a contradictory hearing, plaintiffs contended that "summary proceedings [were] being sought because of [Unity's and Cenlar's] nonperformance."
The "Mortgage Certificate" attached to plaintiffs’ petition for the property herein, certified and prepared by the clerk of court on March 5, 2020, listed the following mortgages or encumbrances on the property:
FIRST: A certain mortgage granted by BRENELL L & MARY P BROWN, in favor of UNITY MTG CORP, recorded 11/14/2002 for the sum of $121,952[.] Said mortgage recorded in MOB Folio File #529650 of the records of the Parish of Ascension, La.
This mortgage was assigned to CITIMORTGAGE INC, recorded in MOB#776334
SECOND: A certain mortgage granted by BRENELL L & MARY P BROWN, in favor of HOUSEHOLD FIN CORP II, recorded 3/29/2007 for the sum of $64,000.45[.] Said mortgage recorded in MOB Folio File #664016 of the records of the Parish of Ascension, La.
THIRD: Any taxes and all which may be due on said property.
Although the mortgage certificate shows that as of March 4, 2020, at 4:30 p.m., no mortgages or encumbrances were held on the property by Unity or Cenlar, the certificate notably shows that Unity's mortgage was assigned to Citimortgage, Inc. and recorded. Plaintiffs further acknowledge in their "Notice by Owner to Mortgage Company," which was addressed to Cenlar Central Loan Administration and Reporting, that the mortgage note was assigned and recorded by Citimortgage, Inc. on July 1, 2011, and allege in their petition that on "July 1, 2011[,] the mortgage note was recorded in the Clerk of Court."
Except as otherwise expressly provided by law, the effect of recordation of an instrument creating a mortgage or pledge or evidencing a privilege ceases ten years after the date of the instrument. LSA-C.C. art. 3357. Moreover, a notice of reinscription that is recorded before the effect of recordation ceases continues that effect for ten years from the date the notice is recorded. LSA-C.C. art. 3364, A notice of reinscription that is recorded after the effect of recordation of the instrument sought to be reinscribed has ceased, again produces the effects of recordation from the time that the notice of reinscription is recorded and shall continue for ten years from the date on which the notice of reinscription is recorded. LSA-C.C. art. 3365.
In the record before us, plaintiffs aver in their petition and attached notice by owner to the mortgage company that the mortgage note herein was recorded by Citimortgage, Inc. on July 1, 2011, less than ten years before the filing of plaintiffs’ petition on July 1, 2020. Thus, regardless of whether reinscription of the mortgage had ceased or was in effect at the time of the July 1, 2011 recording, plaintiffs have failed to establish that the ten-year recordation period of their mortgage recorded on July 1, 2011, had prescribed or lapsed at the time their petition to cancel the mortgage inscription was filed on July 1, 2020.
We further note that pursuant to LSA-C.C. art. 3356(B), a recorded transfer, modification, amendment, or release of a mortgage, pledge, or privilege made by the obligee of record is effective as to a third person notwithstanding that the obligation secured by the mortgage, pledge, or privilege has been transferred to another.
Because plaintiffs have failed to establish that ten years had lapsed since the recordation of their mortgage, we find no error in the judgment of the trial court denying plaintiffs’ petition for cancellation of inscription of mortgage and rescinding its earlier order. Finding no merit to plaintiffs’ arguments on appeal, we affirm the November 8, 2021 judgment of the trial court. All costs of this appeal are assessed to the plaintiffs, Brenell Lloyd Brown and Mary Parks Brown.
AFFIRMED.
Guidry, J. concurs.
Wolfe, J. dissents.