New South Fed. Bank v. Commonwealth Ins.

940 So. 2d 739, 2006 WL 2774160
Louisiana Court of Appeal·Decided September 27, 2006·No. 06-477·Published

Opinion

940 So.2d 739 (2006)

NEW SOUTH FEDERAL SAVINGS BANK
v.
COMMONWEALTH LAND TITLE INSURANCE COMPANY, et al.

No. 06-477.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

*740 William M. Ford, Alexandria, LA, for Defendant/Appellee Commonwealth Land Title Insurance Company.

James B. Reichman, Reichman & Armour, Alexandria, LA, for Plaintiff/Appellant New South Federal Savings Bank.

Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.

AMY, Judge.

The plaintiff bank purchased a mortgage from the original lender. The mortgage had an error, in that it contained the physical address of one location and the legal description of another. The defendant title insurance company issued a policy for the mortgaged property. The plaintiff learned of the error when it attempted to foreclose on the property. Thereafter, it commenced this proceeding to recover under the title insurance policy. The trial court ruled in favor of the defendant, finding that, although the lender did not issue a mortgage on the property for which the physical address was provided, it issued a valid mortgage on the property for which the legal description was provided. The court found no title irregularities on the mortgaged property and, thus, no recovery under the title insurance policy. The plaintiff bank appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that in October 2000, Memphis and Dorothy Willis applied to Southern Equity Lenders for a property mortgage. According to Bill Nichols, who then served as Southern Equity's Secretary Treasurer, it was assumed that the mortgage was to be taken on the Willises' residence, a house located at 351 Willis Flat Road, Glenmora, Louisiana.

Southern Equity contacted one of its approved attorneys for the purpose of closing *741 the loan. The attorney, also an agent for Commonwealth Land Title Insurance Company, issued a short form title insurance policy on the property. According to Mr. Nichols, the decision as to whether to have a survey performed on the subject property was left to the discretion of the closing attorney. At trial, the attorney pointed out that Southern Equity's instructions as to closing did not indicate that a survey was requested. In any event, no survey was performed.

The mortgage was sold to the plaintiff, New South Federal Savings Bank, upon completion. After Mr. Willis's death and following default, New South commenced foreclosure proceedings. A survey completed as part of the foreclosure proceedings revealed that the physical address listed on the mortgage and the legal description of the property provided within the mortgage differed. Although the physical address was the Willis residence and it was the one supplied to Southern Equity through the mortgage application, the property at that address was not owned by Mr. and Mrs. Willis. Rather, it was owned by their son. The property for which the legal description was provided was owned by Mr. and Mrs. Willis, but it was an unimproved parcel of land located on Monk Road. Foreclosure proceedings on the Willis Flat Road property were suspended. There is no indication that foreclosure proceeded against the Monk Road property.

New South filed the instant matter, naming both the closing attorney and Commonwealth Land Title Insurance Company as defendants. While the closing attorney was dismissed on a successful exception of prescription/peremption, New South pursued Commonwealth for coverage under the title insurance policy issued in conjunction with the mortgage. New South sought recovery for losses stemming from what it alleged was a lack of clear title on the Willis Flat Road property. Commonwealth denied recovery. Prior to trial, Southern Equity repurchased the mortgage from New South.

The trial court found in favor of the insurer, concluding that recovery was not possible as the title to the property was not defective and, furthermore, a valid mortgage existed on the Monk Road property.[1] The validity of the mortgage is not *742 an issue before the court and, therefore, is not considered herein. However, New South has appealed the trial court's determination that the title insurance policy does not provide coverage for its inability to foreclose on the Willis Flat Road property and presents the following issues for review:

A. Did the variance between the erroneous property description and the correct municipal address; the acreage described and the actual acreage; and/or the absence of improvements on the described property constitute "adverse circumstances affecting the title" which would have been disclosed by an accurate survey, thus resulting in coverage under the title policy?
B. Should Commonwealth's policy be reformed to reflect insurance of title on the intended property?
C. Did Commonwealth's erroneous inclusion of two different properties (one by municipal address and the other by legal description) as those whose title insured render the insurance contract ambiguous so as to mandate an interpretation of title coverage for the one intended by the insured?

Discussion

Variance as to Property

New South focuses on the difference in the property intended to be insured and that for which the legal description was provided in both the mortgage and the title insurance policy. In arguing that the Commonwealth policy provides coverage for failure to obtain clear title to the Willis Flat Road property, it relies upon the Commonwealth insurance provision indicating, in part, that the "policy insures against loss or damage by reason of any violation, variation, encroachment or adverse circumstances affecting the title that would have been disclosed by an accurate survey." New South argues that because an accurate survey would have revealed the discrepancy between the physical address of the Willis Flat Road property and the legal description provided for the Monk Road property, the policy should afford insurance of title on the intended property. As the question of the validity of the mortgage itself[2] is not at issue, we turn to the wording of the title insurance policy to consider New South's claim.

The Commitment for Title Insurance indicates that the land referred to therein is that attached as "Exhibit `A'." Exhibit A to the Commitment provides the following *743 descriptions which the parties now agree is that of the unimproved parcel on Monk Road:

Exhibit "A"
A certain tract of land containing one (1.0) acres, more or less, situated in the South half (S/2) of the Northeast Quarter (NE/4) of the Northwest Quarter (NW/4) of Section 36, Township One (1) South, Range Four (4) West, and being more particularly described as follows:
The South half (S/2) of the Northeast Quarter of the Northwest Quarter of Section 36, Township One South, Range 4 West LESS AND EXCEPT Tracts # 1 through 10 on Exhibit attached hereto:
Tract 1: 1.0 acre sold by Memphis Willis to Poley Buxton at Conveyance Book 484, page 452;
Tract 2: 2.1 acres sold by Memphis Willis to Mason Willis at Conveyance Book 1299, page 584;
Tract 3: 0.14 acre sold by Memphis Willis to Burton Ashworth at Conveyance Book 565, page 344;
Tract 4: one-fourth (1/4) acre sold by Memphis Willis to Mason Willis at Conveyance Book 721, page 667;

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New South Fed. Bank v. Commonwealth Ins., 940 So. 2d 739, 2006 WL 2774160 (La. Ct. App. 2006).

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