BANK OF AMERICA, N.A., AS * NO. 2023-CA-0706 TRUSTEE FOR STRUCTURED ASSET INVESTMENT LOAN * TRUST, MORTGAGE PASS- COURT OF APPEAL THROUGH CERTIFICATES, * SERIES 2004-4 FOURTH CIRCUIT * VERSUS STATE OF LOUISIANA ******* LOUIS V. CONERLY AND VIOLA JONES CONERLY
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-06313, DIVISION “J” Honorable D. Nicole Sheppard, ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Daniel L. Dysart, Judge Nakisha Ervin-Knott)
Remington M. Angelle Stephen W. Rider Zelma Murray Frederick MCGLINCHEY STAFFORD, PLLC 301 Main Street, Suite 1400 Baton Rouge, LA 70801
COUNSEL FOR PLAINTIFF/APPELLEE
Viola J. Conerly 11301 Morrison Road New Orleans, LA 70128
COUNSEL FOR DEFENDANT/APPELLANT, IN PROPER PERSON
JUDGMENT AFFIRMED MAY 10, 2024 TFL
DLD This matter arises from a dispute to enforce payments on a promissory note NEK secured by a mortgage between Appellant, the Unopened Succession of Louis V.
Conerly and Viola Jones Conerly (“the Conerlys”), and Appellee, U.S. Bank
National Association, as Trustee for Structured Asset Investment Loan Trust,
Mortgage Pass-Through Certificates, Series 2004-4 (“U.S. Bank”). U.S. Bank was
deemed the holder of the promissory note (the “Note”) executed by the Conerlys.
The mortgage (“Mortgage”) on the Conerlys’ residence served as security for the
Note.
On appeal, the Conerlys, appearing in proper person through Mrs. Conerly,1
seek review of the trial court’s judgment in favor of U.S. Bank, which found the
Conerlys had defaulted on the Note and awarded U.S. Bank the total sum of
$121,616.85. The judgment also recognized the Mortgage as security to enforce
the judgment. The Conerlys contest the validity of their signatures on the Note
and the Mortgage documents and claim that the judgment should be set aside
1 Mr. Conerly died during the pendency of the litigation.
1 because U.S. Bank utilized fraudulent and deceptive tactics to procure the
judgment.
The trial record shows that U.S. Bank introduced into evidence sufficient
proof that the Conerlys duly executed the Note and the Mortgage; the Conerlys
were in default for failure to make the required payments; U.S. Bank was the
holder in due course of the Note; and proof of the outstanding amounts owed. The
record also reveals the Conerlys offered no supporting evidence to prove U.S.
Bank committed fraud or engaged in ill practices. Accordingly, finding no
manifest error on the part of the trial court, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On December 26, 2003, the Conerlys executed the Note in favor of H&R
Block in the principal amount of $141,750.00, with interest at the rate of 7.550%.
The Note required the Conerlys to pay monthly installments of $995.99, beginning
on February 1, 2004, and continuing thereafter. The Note and its attendant
obligations were secured by property bearing the municipal address of 11301
Morrison Road, New Orleans, Louisiana 70128 (the “Property”), which was the
Conerlys’ residence. H&R Block endorsed and assigned the Note and Mortgage to
Option One Mortgage Corporation (“Option One”) on October 28, 2004. Said
Note was recorded as Instrument No. 797912 (NA#: 2004-63500) in the Orleans
Parish Mortgage Records. Option One endorsed the Note in blank, which rendered
the Note bearer paper. Subsequent thereto, Sand Canyon Corporation f/k/a Option
One (“Sand Canyon”) assigned the Note to U.S. Bank.
2 On June 15, 2011, U.S. Bank filed a petition for executory process against
the Conerlys alleging that the Note had not been paid since October 1, 2010. In
response, the Conerlys filed a Chapter 13 Voluntary Petition for Bankruptcy. The
Conerlys’ bankruptcy payment plan required payments on the Note. The
bankruptcy petition was eventually dismissed on November 14, 2014, due, in part,
to the Conerlys’ failure to make the agreed upon payments.
Thereafter, the Conerlys filed a Petition for Preliminary Injunction to Arrest
Seizure and Sale on December 27, 2017. They alleged that their signatures on the
Act of Mortgage in favor of Option One were forgeries. Moreover, they contended
that they never knowingly executed a mortgage for $141,750.00, and that U.S.
Bank2 had not followed the procedures for executory process.
The trial court granted the Conerlys’ request for injunctive relief, denying
U.S. Bank the right to proceed by executory process. The trial court indicated that
U.S. Bank had failed to obtain the Conerlys’ purported confession of judgment
prior to its filing for seizure by executory process. 3
2 In their petition for preliminary injunction, the Conerlys filed their action against Bank of
America, N.A., as Trustee for Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates, Series 2004-4. U.S Bank filed a motion on January 10, 2018, to substitute U.S. Bank as the proper party plaintiff. U.S. Bank’s motion to substitute was granted by the trial court. 3 Louisiana Revised Statute 13:4102(A) and (B) state the following:
A. Whenever the holder of bearer paper, such as a note, bond, or other instrument evidencing an obligation secured by a mortgage or privilege on movable or immovable property, seeks to foreclose by executory process, all requirements for authentic evidence regarding the transfer, assignment, pledge, or negotiation shall be inapplicable, provided that all other requirements for authentic evidence have been satisfied.
3 Thereafter, the trial court granted U.S. Bank’s motion to convert the petition
for executory process to an ordinary proceeding. After the conversion, U.S. Bank
filed an Amended Petition by Ordinary Process to Collect Amounts Due on
Promissory Note and for Recognition of Mortgage (“Amended Petition”). The
Conerlys denied the allegations and stated, in part, that “they did not sign
documents to create a mortgage on the [P]roperty.”
U.S. Bank filed a motion for summary judgment on February 4, 2019. The
Conerlys filed a supplemental and amended answer and opposed the summary
judgment motion. The Conerlys’ opposition maintained that U.S. Bank had failed
to prove the total indebtedness owed and had not properly credited the Conerlys
with payments made. The trial court denied the motion for summary judgment.
The parties proceeded to trial on the merits on the Amended Petition.
Testimony at the hearing included the following:
Kevin Flannigan
At the hearing, Kevin Flannigan, a senior loan analyst for Ocwen Financial
Corporation (“Ocwen”), testified that Ocwen, also known as PHH Mortgage
Corporation (“PHH”), services mortgage loans on behalf of U.S. Bank.4 As part
B. Whenever the holder of a note, bond, or other instrument evidencing an obligation secured by a mortgage or privilege on movable property seeks to foreclose by executory process, the transfer, assignment, pledge, or negotiation of such document by private act, duly acknowledged in any manner provided by law, shall be deemed to be authentic evidence and in compliance with Code of Civil Procedure Article 2636. 4 Mr. Flannigan explained that Ocwen merged with U.S. Bank’s current servicer—PHH—and Ocwen is the parent company of PHH. He averred that the names of the companies can be used interchangeably; however, the overarching name of the company is PHH.
4 of his role, Mr. Flannigan confirmed access to records relating to mortgages and
loans. Mr. Flannigan stated that Ocwen and PHH (collectively “PHH”) kept all the
loan records as they relate to the disputed loan at issue, including records provided
by previous servicers. Mr. Flannigan identified the loan application displaying the
Note’s terms. The Note showed an agreement to pay the amount borrowed as
$141,750.00; the signatures of the borrowers, Louis V. Conerly and Viola Jones
Conerly; 11301 Morrison Road in New Orleans as the Property; the date of the
Note as December 26, 2003; H&R Block as the lender; and that the Cornerlys’
individual signatures were notarized. Mr. Flannigan averred that the Note’s
obligation required the borrowers to pay $995.99 per month, beginning February 1,
2004.
Mr. Flannigan confirmed the chain of the assignment of the Note from H&R
Block to U.S. Bank and the eventual transfer of the service agreement to PHH. 5
Mr. Flannigan also verified documentation establishing that PHH sent the Conerlys
notification of the change in the loan’s servicing from Homeward to PHH to their
Morrison Road address on February 13, 2013.
Mr. Flannigan testified that the Conerlys’ payment transaction history
documented the following payments owed through the date of trial: an unpaid
principal balance of $55,679.26; interest payments of $38,230.95; overdraft or
impound sums of $20,059.84; unpaid late charges of $398.32; a recoverable
5Mr. Flannigan identified the PHH records showing the assignment and transfer of the Note from
H&R Block, the original lender, to Option One to Sand Canyon, and presently, to U.S. Bank. Moreover, Mr. Flannigan identified documentation depicting the transfer of the loan’s servicing from Homeward Residential (formerly American Home Mortgage) to PHH.
5 balance of $7,198.48; and a recording fee of $50.00—all resulting in a total payoff
amount of $121,616.85. 6
On cross-examination, Mr. Flannigan said that he was unaware as to whether
a truth-in-lending disclosure form was in the Conerlys’ file. He also acknowledged
that he did not get personally involved in the actual mortgage servicing process and
that he did not attend closings. Mr. Flannigan said that he only knew what was
listed in the documents.
Viola Jones Conerly
Mrs. Conerly was ninety-years old at the time of her testimony. She recalled
that she signed “something” on December 26, 2003. However, Mrs. Conerly
maintained that she did not recognize her signature or her husband’s signature on
the documents for the Mortgage or the Note. Mrs. Conerly had no memory of
borrowing $141,000.00 for a loan or a mortgage. She recalled going to a
Chalmette notary “for the furniture, not for no house.”
On cross-examination, Mrs. Conerly maintained that she had taken out a
loan from H&R Block, but the loan “wasn’t no mortgage.” Mrs. Conerly
recollected writing checks and getting money orders for the house, but not for
$141,000.00. Mrs. Conerly identified a check from 2016 that she “must have sent”
to Ocwen for something Ocwen claimed was owed. She re-asserted the check was
for furniture, not her home. During her cross-examination, U.S. Bank offered into
evidence checks of $49.00 and $582.80, written in 2013 and 2016 to Owcen.
6 All of U.S. Bank’s exhibits as testified to by Mr. Flannigan were introduced into evidence
without objection.
6 Mrs. Conerly said she filed for bankruptcy on the advice of counsel. She
testified that the signatures on the bankruptcy documents also did not look like her
signature or Mr. Conerly’s signature. She had no memory of signing the
bankruptcy documents. Mrs. Conerly admitted that she and Mr. Conerly went to
bankruptcy court located on Magazine Street with their attorney. When shown
documents that listed the mortgage balance on the 1130 [sic] Morrison Road
residence, she claimed that she did not know if there was a mortgage because
“[they] didn’t get any money.” In response to further questioning about the
mortgage’s existence, Mrs. Conerly reiterated that “I don’t know because we - -
got 6,000 on our furniture from H&R Block. We purchased this house through
First Mortgage Homestead in ’76. And First Mortgage Homestead went out of
business.” The following colloquy took place after U.S. Bank’s counsel
questioned her about the possibility that she simply did not recall that a mortgage
was placed on her house.
MRS. CONERLY: A. I don’t - - I remember when First Mortgage went out of [sic] Homestead, they put us over at Option One. Paid Option One $50,000.00 and never heard any more from them.
COUNSEL:
Q. So you made a payment to Option One, that’s what you’re saying?
MRS. CONERLY:
A. Yeah
7 Q. And how much was it roughly?
A. What?
Q. How much was the payment to Option One, roughly speaking?
A. I think it was 995.
When presented with the bankruptcy documents again, Mrs. Conerly said she did
not recall signing the documents.
At the end of Mrs. Conerly’s cross-examination, U.S. Bank’s counsel
admitted all the bankruptcy documents into evidence without objection. The trial
court recessed the hearing until May 18, 2023, for closing arguments and a ruling.
Trial Court’s Judgment
Prior to judgment, the trial court permitted closing arguments.
U.S. Bank argued that Mr. Flannigan’s testimony and its exhibits offered
into evidence clearly showed that the Conerlys had executed the Note, placed a
mortgage on the Property, and were in default for a sum totaling $121,616.85. In
opposition, the Conerlys’ attorney countered that they had consistently maintained
that they never signed mortgage documents to U.S. Bank or any of the previous
mortgage holders for $141,750.00. Instead, the Conerlys asserted that their
Mortgage was paid off in 1973; that a new mortgage was never executed; and that
the Conerlys—who were not well-educated—had been taken advantage of by
unscrupulous mortgage companies.
8 After closing argument, the trial court rendered judgment in favor of U.S.
Bank. The judgment provided, in part, the following:
IT IS ORDERED, ADJUDGED, AND DECREED that Judgment is rendered in favor of Plaintiff, U.S. Bank National Association, as Trustee for Structured Asset Investment Loan Trust Mortgage Pass- Through Certificates, Series 2004-4 against Defendants, the Unopened Succession of Louis v. Conerly and Viola Jones Conerly, in the principal amount of Fifty-Five Thousand Six Hundred Seventy- Nine and 26/100 ($55,679.26) Dollars, plus interest at the rate 7.55000% per annum from April 1, 2014 until paid; $20,059.84 in escrow/impound overdraft charges; $398.32 in late charges; $50.00 for recording fees; all costs; and reasonable attorney’s fees of 25% of all sums due as permitted by the Note and Mortgage.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Mortgage executed by Louis V. Conerly and Viola Jones Conerly on December 26, 2003[,] and recorded as Instrument No. 747527 in the records of Orleans Parish be and is hereby recognized, maintained, and shall secure this Judgment over the following immovable property, in favor of U.S. Bank and its sucessors and assigns securing the amounts due under the Note, as well as, all other indebtedness owed by the Unopened Succession of Louis V. Conerly and Viola Jones Conerly to U.S. Bank, reserving to Plainitff the right to assert the rights and rank granted to it in said Mortgage:
The land referred to in this Commitment is situated in the Parish of Orleas, State of Louisiana, and described as follows:
...
The improvements thereon bear the Municipal No. 11301 Morrison Road.
In its reasons for judgment the trial court opined:
What has been provided is evidence that at some point checks were written on an account that was verified that was their account to the plaintiffs in this matter. And I’m not sure totally what happened because I wasn’t there, but I can tell you that it hasn’t been presented to this Court any handwriting experts or anything like that to tell me that the documents presented by Plaintiffs in this matter were indeed not correct or inaccurate or fraudulent.
And I hope that Mrs. Conerly will be okay and find adequate housing. But I’ve said from the bench since the date of election that we try our best to do a good job for the people of the state of Louisiana and,
9 specifically, for the people of Orleans Parish, and we try our best to follow the law and research the law.
And so based on Louisiana law, I have to grant the Plaintiff’s prayer as requested.
This appeal followed.
STANDARD OF REVIEW
“A trial court’s factual determinations are subject to the manifest
error/clearly wrong standard of review, which precludes the setting aside of a trial
court’s finding of fact unless that finding is clearly wrong in light of the record
reviewed in its entirety.” Lake Air Capital II, LLC v. Perera, 2015-0037, p. 6 (La.
App. 4 Cir. 5/13/15), 172 So.3d 84, 88 (citation omitted). Hence, the issue for the
reviewing court is not whether the factfinder was wrong; instead, in order to
reverse the trial court’s factual findings, the reviewing court must determine
whether the factfinder’s conclusions were reasonable based on the evidence
submitted. See Nine-O-Five Royal Apartment Hotel, Inc. v. Atkins, 2014-0325, p.
8 (La. App. 4 Cir. 10/18/14), 151 So.3d 739, 745 (citation omitted).
ASSIGNMENTS OF ERROR
The Conerlys’ assignments of error contend that the trial court committed
the following errors: (1) manifest constitutional error; (2) manifest error; (3) legal
error; and (4) reversible error. These errors essentially emanate from the Conerlys’
position that the judgment was procured by a myriad of fraud and ill practices, and
as such, the judgment is void and mandates reversal.
Before beginning our review of the Conerly’s alleged errors, we address
U.S. Bank’s argument that this Court should deem the Conerlys’ assigned errors as
abandoned because the Conerlys did not adequately brief their errors with legal
argument and factual support, in contravention of Uniform Rules—Courts of
10 Appeal, Rule 2-12.4(B).7 However, we take judicial notice of the fact that Mrs.
Conerly is over ninety (90) years and appears pro se on behalf of the Conerlys.
Accordingly, this Court, in the interest of justice, shall exercise its judicial
discretion to consider the Conerlys’ brief in its entirety. See Uniform Rules—
Courts of Appeal, Rule 1-3. 8
DISCUSSION
The Conerlys put forth a “prefactory statement” in which they argue that the
various service providers and mortgage holders, including U.S. Bank, took
advantage of their age and limited education in the negotiation and execution of the
Note and the Mortgage and to “cause an increased indebtedness to themselves
without their knowledge from $130,000.00 to $141,750.00.”
The Conerlys delineate that they filed a complaint with the Consumer
Financial Protection Bureau (“CFPB”) against Ocwen. They also allege that the
CFPB filed a lawsuit against U.S. Bank and Ocwen for their bad business
practices. To highlight their bad business practices claims, the Conerlys reference
a letter to the Louisiana Attorney General’s Office wherein they complained that
they were the victims of mortgage fraud and elder abuse.9 The Conerlys conclude
that the judgment violated their property rights secured under the United States’
and Louisiana’s constitutions; the judgment amounted to fraud and fraud upon the
court; and the judgment was achieved through an abuse of process based on illicit
7 Uniform Rules—Courts of Appeal, Rule 2-12(B)(4) provides that “[a]ll assignments of error shall be briefed. The court may deem as abandoned any assignment of error or issue for review which has not been briefed.” 8 Uniform Rules—Courts of Appeal, Rule 1-3 states, in part, that “[t]he Courts of Appeal shall
review issues that were submitted to the trail court and that are contained in specifications or assignments of error, unless the interest of justice requires otherwise.” 9 The letter to the Louisiana Attorney General’s Office was not introduced into the record at trial.
11 tactics, deceptive practices, falsification of authentic evidence and
misrepresentations. As such, the Conerlys add that U.S. Bank’s attempt at
executory process was void ab initio and likewise, the present contested judgment
is void.
U.S. Bank’s Alleged Fraud
In general, to prevail in an action based on delictual fraud, a party has the
burden of proving three elements: (1) a misrepresentation of material fact; (2) the
misrepresentation was made with the intent to deceive; (3) and the
misrepresentation caused justifiable reliance with resultant injury. See Renton
Properties, LLC v. 213 Upland, LLC, 2020-133, p. 12 (La. App. 5 Cir. 10/5/20),
304 So.3d 1083, 1093. The burden of proof for a fraud allegation rests on the party
who makes the allegation. See Env’t Safety & Health Consulting Servs., Inc. v.
Fowler, 2019-0813, p. 8 (La. App. 4 Cir 3/11/20), 364 So.3d 192, 199 (citation
omitted). “Fraud is never presumed and must be proven by a preponderance of the
evidence. Id.
Here, the Conerlys did not satisfy the first element that a misrepresentation
was made. Although the Conerlys make several general allegations of factual
misrepresentations against U.S. Bank, they offered no specific, substantive
evidence at the hearing to prove these allegations by a preponderance of the
evidence. In particular, Mrs. Conerly contested the validity of the Conerlys’
signatures on the mortgage loan documents. Louisiana Revised Statute 9:4422
provides, in part, that all signatures on a promissory note secured by mortgage for
purposes of foreclosure are presumed to be genuine.10 In support of this
10 Louisiana Revised Statute 9:4422(1) states the following:
12 presumption, U.S. Bank submitted evidence that the Conerlys’ signatures were
duly witnessed and notarized. Contrariwise, as noted by the trial court in its
reasons for judgment, the Conerlys did not retain a handwriting expert to verify
that their signatures were forgeries or to otherwise offer evidence to refute the
presumption of their signatures’ validity.
Similarly, the Conerlys contended that U.S. Bank and the other mortgagors
took advantage of the Conerlys’ age and limited education. Louisiana law
presumes that a person who signed a contract understood its terms, conditions, and
content. See Walk Haydel & Assocs. Inc. v. Coastal Power Prod. Co., 1998-0193,
p. 4 (La. App. 4 Cir. 9/30/98), 720 So.2d 372, 374. In the instant matter, the
Conerlys provided no expert or lay testimony to substantiate that they lacked
capacity at any time involving the negotiation and execution of the Note and
Mortgage. Accordingly, upon review, the Conerlys did not meet their burden to
prove fraud on the part of U.S. Bank.
“[I] n a suit to enforce a promissory note, the plaintiff need only produce the
note in question to establish a prima facie case [citation omitted]. The plaintiff
makes a prima facie case once [it] proves the defendant’s signature or the
defendant admits [its] signature.” Titus v. Titus, 2023-0349, 2023 WL 8251804 at
*5 (La. App. 4 Cir. 11/29/23), writ denied, 2024-00046 (La. 3/5/24). Thereafter,
the burden of proof shifts to the defendant to prove any affirmative defenses. Id. In
contrast to the Conerlys, U.S. Bank satisfied the requisite elements to enforce the
Note and recognition of the Mortgage through the un-contradicted testimony of
(1) All signatures of the following persons or entities are presumed to be genuine and no further evidence is required of those signatures for the purposes of executory process: endorsers, guarantors, and other persons whose signatures appear on or are affixed to such instrument secured by the mortgage or privilege.
13 Mr. Flannigan, the senior loan analyst, and the uncontested exhibits it offered into
evidence. U.S. Bank produced the original Note and the recorded Mortgage,
outlined the Note’s chain of mortgagor assignments, and documented the
Conerlys’ payment history. Collectively, the testimony of Mr. Flannigan and the
exhibits established the Conerlys’ execution of the Note and Mortgage, the
Property’s assignment as security for the Mortgage, the payments made on the
Note, the outstanding balance owed by the Conerlys, and showed that U.S. Bank is
the holder and the proper party to enforce the Note. As referenced herein, the
Conerlys offered no reliable evidence to contravene the evidence put forth by U.S.
Bank.
Fraud on the Court/Abuse of Process
The Conerlys also suggest they were denied due process because the trial
court rendered judgment based on a fraud perpetrated on the court by U.S. Bank.
Established jurisprudence sets forth two criteria to determine whether a judgment
has been rendered through fraud or ill practices and is thus, subject to nullification.
The criteria include (1) whether the circumstances under which the judgment was
rendered showed the deprivation of legal rights of the litigant seeking relief; and
(2) whether enforcement of the judgment would be unconscionable or inequitable.
See Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149, p. 6 (La. 10/16/01), 800
So.2d 762, 766. The Conerlys meet neither criterion.
We first note that the judgment was rendered through ordinary process—
after a trial on the merits. U.S. Bank initially filed its petition for executory process
on June 15, 2010. The district court granted the Conerlys’ request to deny U.S.
Bank the right to executory process. Thereafter, proceedings were stayed because
14 the Conerlys filed for bankruptcy. After the stay was lifted, U.S. Bank’s motion
for summary judgment was denied.
Our scrutiny of the record shows no deprivation of the Conerlys’ legal
rights. At every stage of the proceedings, the Conerlys were not only afforded “the
opportunity to appear and assert a defense,” but they also were afforded and did, in
fact, receive the right to a fair and impartial trial. See Belle Pass Terminal, 2001-
0149, pp. 6-7, 800 So.2d at 766-67. The fairness of the litigation process was
underscored by the fact that U.S. Bank received adverse judgments. Additionally,
the Conerlys did not substantiate any collusion between U.S. Bank and the trial
court. Hence, the Conerlys received due process as the circumstances under
which the judgment was reached did not deprive the Conerlys of any legal right.
In reviewing whether the judgment’s enforcement would be inequitable or
unconscionable, this Court acknowledges the Conerlys’ sense of unfairness and
heartbreak in facing the loss of their home at this stage of Mrs. Conerly’s life for
reasons the Conerlys might not comprehend. However, as noted by the trial court,
courts are obligated to follow the law. Here, U.S. Bank presented sufficient proof
to show the Conerlys executed the Note and the Mortgage and that the payments
were past due. On the other hand, the Conerlys were unable to prove their fraud-
related allegations. Consequently, the Conerlys’ lack of evidence precludes a
finding that the judgment’s enforcement would be inequitable or unconscionable as
a matter of law.
Upon review, the Conerlys’ assignments of error are not meritorious, and we
find no manifest error in the trial court’s judgment.
15 DECREE
Based on the foregoing reasons, the trial court’s judgment is affirmed.
JUDGMENT AFFIRMED