CITIMORTGAGE INC v. BASS (2025)

Appellants, third party purchasers of immovable property, appeal a judgment that granted summary judgment in favor of a mortgage holder and ordered its mortgage, which had been erroneously cancelled in the mortgage records, to be reinscribed “with the same rank and priority as the original inscription[.]” Also, two of the appellants and their mortgage holder seek review of the denial of their cross motions for summary judgment, wherein the appellants sought to be named owners of the property at issue free and clear of appellee's mortgage. In addition, the appellants seek review of a judgment denying their motion for new trial regarding a default judgment ordering the mortgage to be reinscribed. For the following reasons, we reverse the grant of appellee's motion for summary judgment, affirm the denial of the appellants’ motion for summary judgment, and reverse the trial court's denial of the motion for new trial and vacate the default judgment ruling.

FACTS AND PROCEDURAL HISTORY

In 2003, CitiFinancial Mortgage Company (“CitiFinancial”) recorded a mortgage, which secured a promissory note for the amount of $110,000.00, in the mortgage records of Livingston Parish. The makers of the note were Willie Mae Nette Bass ¹ and Roy Curtis Bass. In 2005, a second mortgage on the Basses’ property in favor of Aegis Funding securing a promissory note for the amount of $28,000.00 was recorded in the mortgage records. The second mortgage was later assigned to PHH Mortgage Corporation (“PHH”).

In 2006, CitiFinancial merged with CitiMortgage, Inc. (“Citi”), with the latter succeeding to the rights and interests of CitiFinancial. On January 16, 2008, CitiFinancial's mortgage on the Basses’ property was cancelled, even though the Basses’ mortgage had not been paid in full. Specifically, Citi avers that “[t]hrough inadvertent error or perhaps even fraud,” Michael Davis of the Davis Law Firm cancelled the inscription of Citi's mortgage in the mortgage records. It is not clear from the record before us who Mr. Davis represented.

On July 5, 2020, Citi instituted this action by filing a “Petition to Enforce Security Interest by Executory Process,” urging that the Basses defaulted on the note and mortgage by failing to pay the monthly installment due on December 13, 2018, and all successive monthly installments.²

On June 23, 2021, PHH also initiated a separate foreclosure proceeding against the Basses. Citi is not a party to and has never intervened in PHH's foreclosure proceedings.

On July 6, 2021, Citi, upon apparently learning that its mortgage had been cancelled in 2008, filed a “Petition to Reinstate Inscription of Mortgage” in the underlying suit, again naming the Basses as defendants. Therein, Citi alleged that “[t]he mortgage was cancelled [on January 16, 2008] in error, and the Note secured thereby remains due and owing.” On that same day, Citi recorded a “Notice of Lis Pendens” in the mortgage records of Livingston Parish, noting that suit had been filed seeking to reinstate the mortgage “with the same rank and priority as the original inscription,” describing the property with particularity therein.

In accord with PHH's separate foreclosure proceedings, the property was ultimately sold to Anthony Feduccia for $87,000.00 at a sheriff's sale on January 19, 2022. On July 15, 2022, Mr. Feduccia sold the property to Brandon Allen Sheffield and Katelyn Rachel Gautreaux n/k/a Katelyn Gautreaux Sheffield for $188,000.00. The Sheffields’ loan is secured by a mortgage in favor of Performance Mortgage, LLC (“Performance”).

On November 9, 2022, Citi filed an “Amended and Supplemental Petition to Reinstate Transcription of Mortgage” in the underlying suit. In the amended petition, Citi avers that “[t]he sheriff ignored the Notice of Lis Pendens and wrongfully distributed a payoff to PHH ․ in the amount of $39,054.35 leaving only $43,737.65 to be distributed to [Citi] herein on its Mortgage which was insufficient to pay off the loan.” Further, given its filing of the “Notice of Lis Pendens” in the mortgage records prior to the property being sold at the sheriff's sale, Citi alleged that “all subsequent interest holders, including the purchaser at the sheriff's sale [Mr. Feduccia] and subsequent owners [the Sheffields] and mortgagee all took their interests in the subject property SUBJECT TO THE MORTGAGE in favor of [Citi] herein.” In the amended petition, Citi named Mr. Feduccia, the Sheffields, Performance, Livingston Parish Sheriff Jason Ard, and Livingston Parish Clerk of Court Jason Harris as defendants. Citi did not name Mr. Davis, who purportedly improperly cancelled Citi's mortgage in 2008, or PHH, who allegedly received sums in the sheriff's sale that would have been due Citi had it been identified as the primary mortgage holder, as defendants.

In response, Performance filed a motion for summary judgment, urging that “[n]o allegations exist regarding Performance's status as an innocent third party, and [it is] protected by the Public Records Doctrine.” As such, Performance urged that its mortgage is valid and it is the primary mortgage holder on the Sheffield's property. Performance also urged that “[a]ny Lis Pendens recorded herein must also be cancelled accordingly.” Performance further sought to be dismissed from the lawsuit.

Similarly, the Sheffields filed a motion for summary judgment, requesting they be recognized “as the rightful owners of [a] one hundred percent (100%) undivided interest in the subject property, said interest being free and clear from any [mortgage] (other than Performance's mortgage) and forever enjoining [Citi], their successors and assigns from claiming or setting up any right, title, or interest in and to said property interest.” The Sheffields also sought to be dismissed from the lawsuit.

After Performance and the Sheffields filed their motions for summary judgment, Citi filed a motion for default judgment against the Basses. A default judgment was subsequently entered against the Basses on February 20, 2024. The default judgment, however, did not order the Basses to pay any specific sums to Citi, but rather ordered the clerk to reinstate Citi's mortgage on the property, which was now owned by the Sheffields, “with the same rank and priority as the original inscription[.]” The Sheffields and Performance timely filed a motion for new trial on February 29, 2024 from the default judgment ruling, urging that the default judgment was improper because they had not been provided notice prior to the default judgment hearing.

In addition, Citi also filed a cross motion for summary judgment. Citi requested judgment be rendered against Mr. Feduccia, the Sheffields, Performance, Sheriff Ard, and Mr. Harris and that the clerk be ordered to “reinstate the mortgage ․ with the same rank and priority as the original inscription of the mortgage [and the clerk be ordered to] erase the erroneous cancellation recorded on January 16, 2008.”

The cross motions for summary judgment and the motion for new trial from the default judgment ruling were set for hearing on July 1, 2024. Following the hearing, the trial court denied the motions for summary judgment filed by Performance and the Sheffields, and granted Citi's motion for summary judgment. The trial court also denied the motion for new trial from the default judgment ruling.

The trial court subsequently signed a judgment on July 22, 2024, in favor of Citi and against the named defendants, ordering the reinstatement of Citi's mortgage in the mortgage records “with the same rank and priority as the original inscription[.]” The judgment also “recognized and declared [Citi's mortgage that encumbers the property at issue] enforceable in accordance with law, entitled to payment pursuant to the terms of the Note and Mortgage entered into with [the Basses], with preference and priority, over all inferior encumbrances[.]” The judgment also denied the motion for new trial from the default judgment ruling against the Basses.

Performance and the Sheffields have appealed the trial court's judgment. In addition, Mr. Feduccia has appealed the judgment. The appellants contend that the trial court erred in granting summary judgment in Citi's favor in violation of the Louisiana Public Records doctrine given that Mr. Feduccia and the Sheffields were innocent third-party purchasers. Further, the appellants contend that the trial court erred in denying the motion for new trial regarding Citi's default judgment against the Basses given that the default judgment was obtained without providing proper notice to all defendants.

LAW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Granda v. State Farm Mutual Insurance Company, 2004-2012 (La.App. 1 Cir. 2/10/06), 935 So.2d 698, 701. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La.App. 1 Cir. 2/21/20), 298 So.3d 191,194-95, writ denied, 2020-0480 (La. 6/22/20), 297 So.3d 773. A material fact is one that potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Juneau v. Louisiana Tennis Association, Inc., 2019-0964 (La.App. 1 Cir. 2/27/20), 300 So.3d 12, 17. In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Sanders v. Swiftships, Inc., 2017-0774 (La.App. 1 Cir. 9/20/18), 393 So.3d 371, 377, writ denied, 2018-1912 (La. 1/18/19), 262 So.3d 289.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. LSA-C.C.P. art. 966(D)(1). Thereafter, if the adverse party fails to produce factual evidence sufficient to establish the existence of a genuine issue of material fact, the mover is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966(D)(1); Johnson v. Knight, 2023-1267 (La.App. 1 Cir. 6/14/24), 391 So.3d 1126, 1129. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Galliano v. CB & I, LLC, 2018-0844 (La.App. 1 Cir. 4/10/19), 275 So.3d 906, 909.

Herein, the appellants contend that the trial court's judgment is in contravention of the public records doctrine. The doctrine is generally set forth in LSA-C.C. art. 3338, which provides, in part:

The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:

(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.

Further, LSA-C.C. art. 3342 provides:

A party to a recorded instrument may not contradict the terms of the instrument or statements of fact it contains to the prejudice of a third person who after its recordation acquires an interest in or over the immovable to which the instrument relates.

A third person is a person who is not a party to or personally bound by an instrument. LSA-C.C. art. 3343.

The public records doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded. Cimarex Energy Co. v. Mauboules, 2009-1170 (La. 4/9/10), 40 So.3d 931, 944. In explaining the negative nature of the doctrine, the Louisiana Supreme Court has stated that third parties are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Id. The primary focus of the public records doctrine is the protection of third persons against unrecorded interests. Id.

An exception to the public records doctrine exists where a mortgage is cancelled from the public records through fraud, error, or mistake, and without the consent or knowledge of the holder. Such a cancellation does not deprive the holder of his security, even as against third parties dealing with the property in good faith in reliance on the public records. See McL. Development Company, Inc. v. Pyburn, 268 So.2d 296, 298-99 (La.App. 2 Cir. 1972); Davis-Wood Lumber Company v. DeBrueys, 200 So.2d 916, 920 (La.App. 1 Cir. 1967); and National Acceptance Company of America v. Wallace, 194 So.2d 194 (La.App. 2 Cir. 1967), writs denied, 196 So.2d 533, 196 So.2d 534 (La. 1967).

DISCUSSION

In its motion for summary judgment, Citi contended that the exception to the public records doctrine applied given that its mortgage was cancelled in error and without its consent, and as such, it was entitled to have its mortgage reinscribed.³ See Davis-Wood Lumber Company, 200 So.2d at 920. Because it is Citi's burden at trial to show that the mortgage was cancelled by error and without its consent, it bore the burden of proof on its motion for summary judgment. In support of its motion, Citi attached the affidavit of Marcus Handley, who is employed as the Vice-President of Document Execution by CENLAR FSB, the servicer for the Citi loan at issue on appeal with the Basses. With regard to the 2008 mortgage cancellation, Mr. Handley attested, in pertinent part:

On or about January 7, 2008, a Notarial Affidavit of Cancellation of Mortgage purporting to cancel the Mortgage was executed by Michael C. Davis, and forwarded to the Recorder of Mortgages for Livingston Parish, which was recorded on January 16, 2008 at File Number 659923, Book 1533, Page 192 in the Mortgage Records of Livingston Parish (“Cancellation”). A copy is attached hereto as Exhibit A-3.

The promissory note secured by the Mortgage has not been paid and remained due and owing at the time of the cancellation of the Mortgage.

The aforementioned Request for Cancellation erroneously requested that the Mortgage securing the Borrowers’ Loan be cancelled from the Public Records of Livingston Parish.

That the Mortgage was cancelled by error, and that the Note secured thereby has not been satisfied.

That CitiMortgage, Inc., now seeks to rectify the aforementioned error, and have its Mortgage reinstated with the same rank and priority it enjoyed prior to the erroneous cancellation.

Mr. Davis's 2008 affidavit requesting cancellation of the mortgage was attached to Mr. Handley's affidavit. In Mr. Davis's 2008 affidavit, Mr. Davis does not indicate who he represented. Therein, Mr. Davis also attests that he received the Citi note at issue and that “Affiant [or] someone under his direction did satisfy the promissory note[.]” He further attested that the Citi note had been “marked ‘Paid in Full’ from the last holder of the note and that the note was lost or destroyed while in the affiant's custody[.]” Moreover, Mr. Handley's affidavit does not dispute the attestations in Mr. Davis's affidavit—i.e., that Mr. Davis's office received the note, marked paid.

While the exhibits presented in support of Citi's motion for summary judgment tend to show that the mortgage may have been cancelled by error or mistake, the evidence presented does not show that it was done so without Citi's consent or knowledge. Rather, if Mr. Davis was employed by or an agent of Citi and/or if the mortgage was cancelled due to Citi's own error or mistake, Citi may not be able to benefit using the exception to the Louisiana Public Records Doctrine. See e.g., Schudmak v. Prince Phillip Partnership, 573 So.2d 547, 551 (La.App. 5 Cir. 1991)(“In this case, however, Schudmak knew of the cancellation of his mortgage; in fact, it was he who filed to have the vendor's lien cancelled. The fact that he may have been fraudulently induced to cancel his vendor's lien is of no moment to and cannot affect the rights of innocent third parties.”) There is simply no evidence presented in support of or in opposition to the motions for summary judgment that address this issue. Citi urges that despite lack of specific evidence addressing this issue, this court should infer that Citi did not consent or have knowledge of the cancellation, especially given that Citi included the original mortgage note in the record and the note is not marked paid. However, such speculation falls short of Citi's burden on its motion for summary judgment. Accordingly, given that genuine issues of material fact exist, we must reverse that portion of the trial court's judgment that granted summary judgment in favor of Citi.

The trial court also denied the motion for summary judgment filed by the Sheffields and Performance (hereinafter collectively “the Sheffields”). The Sheffields seek review of that ruling in this appeal.⁴ On appeal, the Sheffields aver that they were innocent third-party purchasers.⁵ The Sheffields suggest that even if Citi's mortgage was erroneously cancelled (and assuming it was cancelled without Citi's consent or knowledge), they would be entitled to summary judgment due to Citi's actions or lack thereof herein.

Specifically, the Sheffields aver that Citi took no steps to address the purported mistaken cancellation of its mortgage by seeking to enjoin the sheriff's sale, rank liens prior to the sheriff's sale, or seek to unravel the sheriff's sale once held to resolve its dispute with PHH over whether the alleged mistaken cancellation should be addressed and Citi's 2003 mortgage reinstated. The Sheffields maintain that had it done so, Citi could have kept the dispute within one that only PHH and Citi were involved. Rather, the Sheffields contend that Citi allowed the sheriff's sale to take place and took no action to avoid the inevitable third parties becoming involved beginning with Mr. Feduccia and trickling down to the Sheffields. Moreover, the Sheffields assert that Performance provided the Sheffields with a valid mortgage in reliance on the public records.

In this regard, we recognize that LSA-C.C.P. art. 1092 provides that a third party “claiming ownership of, or a mortgage or a privilege on, property seized may assert his claim by intervention.” (emphasis added). Such an intervention is an optional procedure which, if not exercised, does not always operate as a release of the mortgage or privilege. See Halley v. Buckley, 37,254 (La.App. 2 Cir. 6/25/03), 850 So.2d 950, 953, writ denied, 2003-2109 (La. 11/7/03), 857 So.2d 500, and Davis-Wood Lumber Company, 200 So.2d at 920 (“The holder of a materialman's lien is not required to intervene in the foreclosure proceedings of an inferior mortgage. His rights are not lost by alienation at public sale,” despite his lien being erroneously cancelled.)

Although intervention under Article 1092 is optional for a mortgage or lien holder, some cases appear to carve out exceptions to this general rule. In Central Bank v. Frost, 552 So.2d 508 (La.App. 2 Cir. 1989), writ denied, 556 So.2d 59 (La. 1990), cert. denied, 498 U.S. 827, 111 S.Ct. 83, 112 L.Ed.2d 55 (1990), the court indicated that if a mortgage holder has remedies to protect itself prior to a judicial sale, then the fraudulent or erroneous cancellation exception might not apply, stating:

Cases involving fraudulent or erroneous cancellations, in which the exception to the public records doctrine has been applied, involve mortgage holders who did not know or consent to the cancellation and who had no way of knowing of the wrongful cancellation of the mortgage and no means of protecting their security interests in the property. In many of these cases, the mortgage holder becomes aware of the cancellation only after a sale of the property to a third party. In such cases, mortgage holders are limited in the methods available to correct the wrongful cancellations and to protect their security interests. Therefore, the exception to the public records doctrine is necessary in the interest of justice.

552 So.2d at 512. As such, because the security interest holder was a party to initial litigation that caused his mortgages to be cancelled from the public record and he was aware of the judgment cancelling his mortgages, he “had available to him the protection afforded by a suspensive appeal,” and because he had such a remedy available, the “fraud, error, and mistake” exception to the public records doctrine was inapplicable. Id. at 512-13. See also Schudmak, 573 at 550-51, and Neeb v. Graffagnino, 2013-687 (La.App. 5 Cir. 2/26/14), 136 So.3d 353, 358, which track the Central Bank language in their opinions. However, we refrain from applying this principle of Central Bank too liberally, as we are aware that a mortgage company that pleads its mortgage was cancelled without its consent and knowledge has stated a case of action. See Deutsche Bank Nat'l Trust Co. v. McNamara, 2017-1073 (La.App. 4 Cir. 10/18/17), 316 So.3d 881, 887, writ denied, 2017-1918 (La. 2/2/18), 235 So.3d 1111 (“In short, neither the Supreme Court nor this court has adopted as a bright-line rule, the loose language used in Central Bank, Schudmak, and Neeb [and] [w]e decline to do so now” such that a mortgage company that pleads that its mortgage was cancelled without its consent and knowledge has stated a cause of action.)

While the evidence indicates that Citi filed a notice of lis pendens in the public record and eventually obtained the funds placed into the registry of the court after PHH's foreclosure proceedings, there was no other evidence submitted in support of the motion for summary judgment to show if and when Citi became aware of PHH's foreclosure proceedings and whether such notice was at a time Citi could potentially take steps to otherwise protect its security interest in the property.⁶ Further, while the Sheffields aver that Citi ratified and acquiesced in the sheriff's sale by accepting the proceeds placed into the registry of the court, such could possibly be deemed reasonable if Citi had no other recourse at the time the funds became available to it. Moreover, we note that the Sheffields urge that Citi could have done more, outside of PHH's foreclosure proceedings, to protect its interests, especially given that the mortgage was cancelled in 2008 and reinscription was not sought until 2021. However, very little evidence has been provided by the parties in connection with the motions for summary judgment. As such, given the scant evidence, we can make no determination as to whether Citi was required to take any additional steps to protect its interests, whether in PHH's foreclosure proceedings or otherwise. Further, we do not address the breadth of the Central Bank, Schudmak, and Neeb decisions herein and whether such rationale could apply to preclude application of the erroneous cancellation exception. Given the foregoing, we conclude that the trial court did not err in denying the motion for summary judgment filed by the Sheffields and Performance.

In addition, the appellants, Mr. Feduccia, the Sheffields, and Performance, assert that the trial court erred in denying the motion for new trial because the default judgment was improperly rendered in favor of Citi and against the Basses, without any notice provided to any of the appellees and without benefit of a hearing.

On appeal, the appellants maintain that while a “suit on a promissory note” can be accomplished via summary process without an open court hearing, the judgment rendered by the trial court went much further, given that it reinstated a cancelled mortgage without notice to the appellants. The appellants maintain that such a judgment could not be rendered outside of an open court hearing and notice to appellants.

The appellants note that LSA-C.C.P. art. 1702.1 addresses default judgments without hearings in open court, and provides:

A. When the plaintiff seeks a default judgment without appearing for a hearing in open court as provided in Article 1702(B)(1) and (C), the plaintiff shall file a written request for default judgment containing a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached, along with any proof required by law and a proposed default judgment. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and the fact that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed since demand was made upon the defendant.

B. The certification shall indicate the type of service made on the defendant and the date of service and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other pleading has been filed within the time prescribed by law or by the court.

The appellants also note that the certification made by Citi as required by LSA-C.C.P. art. 1702.1 provides that this matter is a “suit on promissory note.” Despite being a suit on a promissory note, the appellants further note that the judgment rendered by the district court ordered the clerk to reinstate the mortgage that was erroneously cancelled in 2008 “with the same rank and priority as the original inscription of the mortgage[.]” Appellants aver that this judgment went well beyond a confirmation of a default judgment on a promissory note as contemplated in Article 1702.1. The appellants aver that the default judgment clearly affects the rights of all the appellants herein and places a cloud on a title when the appellants were not provided notice or an opportunity to be heard.

In response, Citi avers that it properly sought a default judgment as allowed under LSA-C.C.P. art. 1702.1, and it complied with the requirements of the article. Citi maintains that in connection with its executory process suit filed on July 6, 2020, a sheriff's sale was initially scheduled for March 10, 2021. In preparation of the sheriff's sale, however, Citi alleges that it learned that its mortgage had been erroneously cancelled without Citi's consent, and as such, Citi filed a Petition to Reinstate the Mortgage in 2021.

Citi avers that while appellants correctly cite Article 1702.1, they are mistaken as to the basis for this action. Rather, Citi maintains that the action was initiated to enforce a note, and pursuant to Article 1702.1(A), a default judgment may be obtained without appearing for a hearing in open court. The motion seeking the default judgment contained an affidavit of the undersigned counsel that certifies that the suit is on a promissory note and said original note was attached to the executory petition. The affidavit also included the service on the Bass defendants and a certification by the clerk of court attesting that the record was examined and no answer or opposition had been filed. Further, Citi avers that the Basses were provided notice before the default was sought against them as required by law. Accordingly, Citi concludes that it complied with the requirements of Article 1702.1 and, therefore, this court should find that the trial court did not err in denying the motion for new trial.

While the parties cite nothing that would require notice to all defendants with regard to obtaining a default judgment against the Basses solely, we cannot agree that the trial court had authority, without notice and an opportunity to be heard by the appellants, to order the mortgage reinstated on the property. The February 20, 2024 default judgment did not specifically order the Basses to pay any sums purportedly due Citi after Citi had received the proceeds from the court registry following the sheriff's sale. Rather, the judgment only “declared enforceable in accordance with law, entitled to payment, with preference and priority, over all inferior encumbrances” Citi's mortgage with the Basses “with the same rank and priority as the original inscription” and ordered the clerk to reinstate the mortgage. However, the Basses did not own the property at issue when the default judgment was entered, and the property is currently owned by the Sheffields. Moreover, the judgment allows Citi's mortgage to prime Performance's mortgage with the Sheffields when neither the Sheffields, Performance, or any other defendant had been provided notice and been afforded an opportunity to be heard. Whether the mortgage should be reinstated is the primary dispute at issue herein, and we have specifically found that genuine issues remain as to whether Citi's mortgage should be reinstated. As such, we find that the trial court erred in denying the motion for new trial, vacate the February 24, 2024 default judgment, and remand the matter to the trial court for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the July 22, 2024 judgment to the extent it granted summary judgment in favor of CitiMortgage, Inc., but we affirm the July 22, 2024 judgment to the extent it denied the motions for summary judgment filed by Performance Mortgage, LLC, Brandon Sheffield, and Katelyn Gautreaux Sheffield. Further, we reverse the trial court's ruling on the motion for new trial, vacate the February 24, 2024 default judgment, and remand for further proceedings. Costs of this appeal are assessed against CitiMortgage, LLC.

JULY 22, 2024 JUDGMENT REVERSED IN PART AND AFFIRMED IN PART; FEBRUARY 20, 2024 DEFAULT JUDGMENT VACATED; MATTER REMANDED.

FOOTNOTES

1.   In the petition, Ms. Bass is named as “Willie Mae Nette Bass a/k/a Willie Mae Niette Bass a/k/a Willie Mae Nette Procell Bass.”

2.   Citi asserted that the Basses were indebted to Citi in the “[p]rincipal of $85,308.74 and second principal of $2,271.71 with interest thereon at 8.380% per annum from November 13, 2018, until paid[.]”

3.   Citi does not maintain that any of the defendants herein committed fraud.

4.   The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where there are cross-motions for summary judgment raising the same issues, this court will review the denial of a summary judgment in addressing the appeal of the granting of the cross-motion for summary judgment. Harris v. Imperial Fire and Casualty Ins. Co., 2020-1323 (La.App. 1 Cir. 7/21/21), 328 So.3d 1208, 1213 n.3, writ denied, 2021-01282 (La. 11/17/21), 327 So.3d 994.

5.   Similarly, Mr. Feduccia also avers that he is an innocent third-party purchaser. The Sheffields and Mr. Feduccia point out that both the “Sheriff's Act of Sale of Immovables” and “Sheriff's Return,” which are both dated January 21, 2022 and which Performance introduced in opposition to Citi's motion for summary judgment, expressly ordered the Clerk of Court “to cancel and erase from the records of his office all mortgages, liens, and judgments insofar as they affect the [immovable] property [at issue].” They note that the sheriff's actions are consistent with a sheriff's duty to cancel inferior security interests, mortgages, liens, and privileges. See LSA-C.C.P. art. 2376. Accordingly, the Sheffields and Mr. Feduccia conclude that the notice of lis pendens was cancelled and erased from the public records by the Sheriffs Act of Sale and Return, and Mr. Feduccia (and subsequently the Sheffields) acquired title to the property free and clear of any alleged interest claimed by Citi.

6.   Citi asserts that it was never provided with notice of the sheriff's sale.

McCLENDON, C.J.