U S Bank National Association Not Its Individual Capacity but Solely as Trustee of the Nrz Passs-Through Trust Xvi Versus Marc Gerard Barbe A/K/A Marc G. Barbe A/K/A Marc Barbe

• Court: Louisiana Court of Appeal
• Decided: July 3, 2025
• Docket: 25-C-271
• Status: Unknown

Opinion

U S BANK NATIONAL ASSOCIATION NOT NO. 25-C-271 ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE OF THE NRZ PASSS-THROUGH FIFTH CIRCUIT TRUST XVI COURT OF APPEAL VERSUS STATE OF LOUISIANA MARC GERARD BARBE A/K/A MARC G. BARBE A/K/A MARC BARBE, ET AL

July 03, 2025

Linda Tran First Deputy Clerk

IN RE MARC G. BARBE AND RENADA A. EASTLING BARBE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 780-038

Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and E. Adrian Adams, Pro Tempore

WRIT DENIED

Relators, Marc G. Barbe and Renada A. Eastling Barbe, representing

themselves, seek supervisory review of the trial court’s judgment denying their

motion to dismiss for misrepresentation and lack of standing.1 For the reasons

that follow, we deny their writ application.

In 2004, Mr. and Mrs. Barbe executed a promissory note and granted a

mortgage on their Metairie home in favor of WMC Mortgage Corp., the original

mortgagee. In 2009, the mortgage loan was transferred to Wells Fargo Bank,

1 Relators first sought an appeal. This Court dismissed the appeal for lack of appellate jurisdiction but permitted relators to file a writ application within 30 days of the dismissal. See 25-CA-155.

25-C-271 N.A., as Trustee.2 In 2016, Mr. Barbe and Ocwen Loan Servicing, LLC, the

mortgage servicer for Wells Fargo, entered into a Loan Modification

Agreement.

In January of 2018, Wells Fargo filed a Petition to enforce the note after

the Barbes allegedly defaulted. In 2021, Wells Fargo filed a motion for summary

judgment. The trial court granted summary judgment in favor of Wells Fargo

and against relators, but this Court reversed the summary judgment ruling on

appeal, finding Wells Fargo had failed to demonstrate at the summary judgment

stage that it was the proper party to enforce the note and mortgage, because it

neither produced the note, nor satisfied the statutory requirements for enforcing

a lost note under La. R.S. 10:3-301(iii), La. R.S. 10:3-309, and La. R.S.

13:3741. This Court stated:

While we do not find that Wells Fargo is necessarily required to produce the original note to establish its right to enforce the note, a copy of a note attached to the petition and a conclusory statement in an affidavit that Wells Fargo is a party entitled to enforce the note, is not sufficient evidence to establish that Wells Fargo is a holder in possession of the promissory note pursuant to La. R.S. 10:3-391(i) and 10:1-201(21)(A). See, e.g., Bank of America, N.A. v. Alexander, 19-290 (La. App. 5 Cir. 1/29/20), 289 So.3d 1200.

*** … Because Wells Fargo failed to submit evidence to establish its initial burden of proving it is a person entitled to enforce the promissory note at issue, we find that the burden did not shift to Mr. Barbe to establish a defense or genuine issues of material fact. Accordingly, we find that the trial court erred by granting summary judgment in favor of Wells Fargo, and we reverse the August 18, 2021 judgment entered in its favor and against defendant, Marc Barbe. The matter is remanded for further proceedings.

2 The full name of the transferee is: “Wells Fargo Bank, N.A., as Trustee for the Pooling and Servicing Agreement dated as of March 1, 2004 Merrill Lynch Mortgage Investors Trust Mortgage Loan Asset-Backed Certificates, Series 2004-WMC2.”

2 Wells Fargo Bank, N.A. v. Barbe, 22-31 (La. App. 5 Cir. 9/13/22), 349 So.3d

1018, 1024-25.

Meanwhile, in December 2021, Wells Fargo transferred the Barbes’

mortgage loan to “U.S. Bank National Association, not in its individual

capacity, but solely as trustee of the NRZ Pass-Through Trust XVI” (USBNA).

After the transfer, Fay Servicing, LLC became the mortgage servicer for

USBNA.

In February 2023, the trial court granted plaintiff counsel’s motion to

substitute party plaintiff on the basis that USBNA was now the proper

plaintiff/party in interest. In August 2024, USBNA filed a motion for summary

judgment seeking to enforce the mortgage loan, arguing that there is no genuine

issue of material fact that defendants-relators had breached the loan agreement.

USBNA also contended it had remedied the issues this Court identified in the

appeal from Wells Fargo’s previous motion for summary judgment, including

complying with Louisiana’s statutory requirements for enforcing a lost note.

Relators opposed USBNA’s summary judgment motion and, in

September 2024, also filed a “Motion to Dismiss for Misrepresentation and Lack

of Standing and Not a Party of Interest,” as well as an addendum to their motion

to dismiss. USBNA then notified relators and the trial court that yet another

transfer of the security interest was occurring; thus, USBNA would not move

forward with its motion for summary judgment.3 On November 14, 2024, after a

hearing, the trial court denied relators’ motion to dismiss. This writ application

pertains only to relators’ motion to dismiss—USBNA’s motion for summary

judgment is not at issue.

3 The motion for summary judgment had been set for hearing on October 9, 2024.

3 Relators claim USBNA lacks standing because it has failed to prove

“ownership, a valid chain of title, proper authority, or an enforceable lost note”

in this foreclosure lawsuit. Relators also contend there are “persistent procedural

defects carried over from Wells Fargo’s claims.” Thus, relators contend the

entire case should be dismissed with prejudice. According to relators, USBNA’s

vice president admitted that USBNA neither owns nor services the mortgage at

issue, and USBNA never established a valid chain of possession.4 Relators

further argue that because USBNA never lawfully acquired ownership or

enforceable rights to the mortgage and promissory note, it lacked standing to

initiate the foreclosure proceedings.

Relators also take issue with an affidavit purporting to meet the

fundamental legal requirements for enforcing a lost note under La. R.S. 10:3-

309, pointing to this Court’s decision reversing the summary judgment in favor

of Wells Fargo in 2022. Relators further contend that USBNA is not the true

party in interest, noting that Fay Servicing, not USBNA, services the note. They

4 Relators appear to rely on an August, 7, 2024 email from U.S. Bank to Mr. Barbe, which states:

I am writing in response to your August 5, 2024, and subsequent e-mail correspondence to U.S. Bank. Based on the limited information that you have provided; it appears that U.S. Bank serves as trustee for a mortgage-backed-securitization trust (the "MBS Trust") that owns the mortgage on your property. Please note that U.S. Bank, in its corporate capacity, does not own or service your loan, and the mortgage servicer is the party to the trust with the authority and responsibility to make decisions and take actions regarding individual loans/properties in the MBS Trust, including loan forbearances, loan modifications, or initiating and conducting foreclosures.

While "U.S. Bank as Trustee" may be identified as the nominal mortgage owner, and may appear on certain foreclosure or other documents, as MBS trustee, we have no authority or responsibility to review and/or approve or disapprove of the mortgage servicer's decisions and actions. You were previously provided with our Role of Trustee brochure that further explains the roles of an MBS trustee and mortgage servicer.

The mortgage servicer of your loan is the proper party to address any questions or concerns that you may have regarding your mortgage loan.

4 again claim that because USBNA does not own, hold, or service the note,

USBNA has no standing to pursue these claims.

In opposition to relators’ motion to dismiss, counsel for USBNA argued

that relators have used an inappropriate procedural vehicle (a motion to dismiss),

misconstrued certain facts, and failed to cite any legal support in favor of

dismissing this lawsuit.

Counsel explains that the McGlinchey Stafford law firm was retained by

PHH Mortgage Corporation, which was the servicer for Wells Fargo. In

December 2021, USBNA acquired relators’ mortgage loan by assignment. After

the mortgage loan was transferred to USBNA, USBNA’s servicer, Fay

Servicing, LLC, was appointed the attorney-in-fact for USBNA. In the April

2021 power of attorney, USBNA granted Fay Servicing the authority to retain

counsel and to institute foreclosure proceedings; Schedule A to that power of

attorney specifically identifies the NRZ Pass-Through Trust XVI (which holds

relators’ mortgage note). Moreover, USBNA pointed out that Louisiana law

permits mortgage servicers to act on behalf of a lender/mortgagee, citing

Valteau v. Mellon Mortg. Co., 881 So. 2d 122, 124 (La. App. 4th Cir. 2004),

writ denied, 882 So. 2d 1133 (La. 2004), and writ not considered, 885 So. 2d

1138 (La. 2004), writ denied, 888 So. 2d 209 (La. 2004). Here, the servicing

entities provided relators with the appropriate powers of attorney granting the

servicer the right to act on behalf of the lender/mortgagee. Thus, USBNA

argues, relators’ contention that Fay had no authority to retain counsel to pursue

this litigation is erroneous.

USBNA next pointed out that relators are incorrect in arguing that

USBNA “does not own the debt.” USBNA has always appeared in this litigation

“not in its personal capacity, but as the Trustee for the owner of the mortgage

5 loan, which is the NRZ Pass-Through Trust XVI.” USBNA notified relators that

its mortgage servicer has the authority to act on behalf of USBNA in pursuing

this litigation and addressing any questions about the loan. USBNA has always

appeared in the litigation in the proper capacity, and the Barbes are incorrect to

argue that USBNA does not have standing.

USBNA also states that it has addressed the evidentiary problems noted in

this Court’s 2022 opinion reversing summary judgment in Wells Fargo’s favor.

For example, USBNA has provided relators with detailed affidavits, evidence of

the various assignments of the note, and included the publications regarding the

lost note to satisfy the statutory requirements necessary for a lost note’s

enforcement. Thus, USBNA has standing to enforce the note and mortgage.

Furthermore, the fact that another transfer of the mortgage has occurred (since

USBNA filed its 2024 motion for summary judgment) does not entitle

defendants to dismissal of this action. See La. C.C.P. art. 807; Seale v. Abadie,

99-771 (La. App. 5 Cir. 1/12/00), 752 So.2d 971, 973 (finding that the transferee

of assets, rights and liabilities of the transferor in the litigation is entitled to

continue the suit instituted by the transferor).

Upon review of relators’ writ application, we find their motion to dismiss

essentially asked the trial court to find that the evidence USBNA submitted in

support of its motion for summary judgment is so insufficient that this case

cannot move forward—an argument more appropriately considered in a motion

for summary judgment. However, relators did not file a motion for summary

judgment, and a trial court has no authority to grant summary judgment in favor

of a non-moving party. See Bravo v. Borden, 08-323 (La. App. 5 Cir. 11/25/08),

3 So.3d 505, 510. Further, it appears that genuine issues of material fact remain,

6 which would preclude the granting of a motion for summary judgment in the

event relators had filed one.

Relators also have failed to cite any legal precedent to support dismissal

of the action at this stage of the proceedings. Relators’ additional assertions,

regarding standing and plaintiff counsel’s purported misrepresentations to the

court and the parties, appear to lack any evidentiary support and are belied by

the attachments to the writ application.

Accordingly, on the showing made, we cannot say the trial court erred in

denying the motion to dismiss. Relators’ writ application is denied.

Gretna, Louisiana, this 3rd day of July, 2025.

EAA SMC SJW

7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. TRAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 07/03/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

25-C-271 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Timothy G. Byrd, Jr. (Respondent)

MAILED Marc Barbe (Relator) Renada Barbe (Relator) In Proper Person 4421 Pike Drive Metairie, LA 70003