Age v. DLJ Mortgage Capital, Inc.

147 So. 3d 1186, 2013 La.App. 4 Cir. 1654, 2014 WL 3955068, 2014 La. App. LEXIS 1976
CourtLouisiana Court of Appeal
DecidedAugust 13, 2014
DocketNo. 2013-CA-1654
StatusPublished
Cited by2 cases

This text of 147 So. 3d 1186 (Age v. DLJ Mortgage Capital, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Age v. DLJ Mortgage Capital, Inc., 147 So. 3d 1186, 2013 La.App. 4 Cir. 1654, 2014 WL 3955068, 2014 La. App. LEXIS 1976 (La. Ct. App. 2014).

Opinion

MADELEINE M. LANDRIEU, Judge.

| plaintiffs, Chaniel Age and Varney Goba, appeal the trial court’s granting of summary judgment in favor of defendants, DLJ Mortgage Capital, Inc. [“DLJ”] and [1187]*1187Select Portfolio Servicing, Inc. [“Select”]. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On June 1, 2009, the plaintiffs purchased by Special Warranty Deed the real property (a house and lot) located at 6150 East-over Drive in New Orleans. Three years later, on July 18, 2012, the plaintiffs filed suit alleging there was a title defect the defendants were bound to cure. The named defendants included the seller, DLJ Mortgage Capital, Inc. [hereinafter referred to as “DLJ”];1 Select Portfolio Servicing [hereinafter referred to as “Select”], DLJ’s attorney in connection with the sale; Resource Title Agency, Inc. [hereinafter referred to as “Resource Title”], which performed the title examination; and First American Title Insurance Company [hereinafter referred to as “First American”], which issued the title j2insurance policy.2 The plaintiffs alleged that substantial portions of the house they had purchased encroached upon an adjacent piece of property, which was subject to a tax sale. In an amended petition, the plaintiffs alleged that they had learned about the encroachments sometime after they had purchased the property3 when a relative had performed a computer search relating to tax sales in the neighborhood. The plaintiffs further alleged that they did not know when the complained-of encroachments had come into existence. In the amended petition, the plaintiffs sought damages from the defendants (in a reasonable amount to be determined by the court) for the defendants’ alleged failure to deliver merchantable title.

The issuer of the title insurance policy, First American, filed a motion for summary judgment based upon the fact that its policy expressly excluded claims for loss or damage arising from encroachments or other such matters that would have been disclosed by an accurate survey of the premises. The plaintiffs do not dispute that they expressly declined to have a survey done. The trial court granted First American’s motion for summary judgment on March 21, 2013. Neither the plaintiffs nor any of the remaining defendants appealed the dismissal of First American from the lawsuit.4

Subsequently, DLJ and Select filed a motion for summary judgment that was heard on July 19, 2013. DLJ and Select asserted that they were not liable to the plaintiffs as a matter of law because the plaintiffs had waived their right to object |ato any title defects under the provisions of the Special Warranty Deed and also had opted to forego having a survey, signing a written waiver to that effect. The plaintiffs argued that the terms of the Special Warranty Deed are ambiguous and therefore the waiver they signed was invalid. Alternatively, they argued that the waiver provision was not brought to their attention or explained, and that, therefore, they had not executed a knowing waiver. The trial court granted the motion for summary judgment from the bench, dismissing the plaintiffs’ claims against DLJ and Select. The court signed a written judgment to that effect on July 22, 2013. This appeal followed.

The sole issue raised on appeal is whether the trial court erred by finding that the [1188]*1188plaintiffs waived their right to recover damages from DLJ and Select for the title defect complained of in the petition.

DISCUSSION

We have jurisdiction over this appeal because the trial court’s judgment dismissing the plaintiffs’ claims as to one or more of the defendants is a final judgment.5

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 2006-0363, p. 3 (La.11/29/06), 950 |4So.2d 544, 547. “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). Thus, the reviewing court must determine whether there is any genuine issue of material fact and whether the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C); Hall v. Malone, 2013-0315, p. 3 (La.App. 4 Cir. 1/15/14), 133 So.3d 91, 93 (citing Cressionnie v. Liberty Mutual Ins. Co., 98-0534, p. 3 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, 366). Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment. La. C.C.P. art. 966(F)(2).

With their motion for summary judgment, DLJ and Select submitted the affidavit of Patrick Pittman, a director of Select, who averred that: (1) Select had serviced the mortgage loan taken out by Mr. Kenneth Wiley, the prior owner of the property, which loan was assigned to DLJ as mortgagee on April 23, 2008; (2) Upon Mr. Wiley’s default, DLJ foreclosed on the note and then acquired the property at a sheriff’s sale on August 26, 2008; (3) DLJ, represented by Select, sold the property to the plaintiffs by Special Warranty Deed on July 17, 2009; (4) the only survey of the property in DLJ’s possession was a 1997 survey; and (5) DLJ did not construct any building or portion of a building on the property during the time it owned the property. Also submitted with Mr. Pittman’s affidavit were |,r,copies from Select’s files of relevant documents referenced in the affidavit, including the original Note, the Mortgage, the 1997 survey of the property performed by Stewart Title (which does not show any encroachment); the Act of Assignment to DLJ, the Sheriff’s Deed, and the Special Warranty Deed. Finally, DLJ and Select submitted a copy of First American’s “Notice of Availability of Survey,” which is completed and signed by the plaintiffs, and an Orleans assessor’s office map (printed from the office’s website in 2013), which purportedly shows the encroachment.

In opposition to the motion, the plaintiffs submitted the affidavit of plaintiff Chaniel Age, in which she averred that: (1) No one went over the provisions of the Special Warranty Deed with the buyers before they signed it; (2) The waiver of warranties was not brought to the attention of the buyers or explained to them; and (3) The Special Warranty Deed was ambiguous in [1189]*1189that it contained one clause providing that the sale was being made with full warranty of title and another clause providing there was no warranty of title.

Reviewing this evidence, we conclude, as did the trial court, that the plaintiffs expressly waived their right to recover for the title defect complained of in their suit — the encroachment of portions of the house onto the neighboring lot. The Special Warranty Deed is two pages in length. Although the first paragraph contains the general provision: “Seller does hereby sell and deliver, with full warranty of title ... [the property described],” the contract goes on to specifically state:

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147 So. 3d 1186, 2013 La.App. 4 Cir. 1654, 2014 WL 3955068, 2014 La. App. LEXIS 1976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/age-v-dlj-mortgage-capital-inc-lactapp-2014.