OCWEN LOAN SERVICING LLC v. JANA JENA NORRIS (2026)

In this suit on a promissory note secured by a mortgage, plaintiff-mortgagee appeals the trial court's final judgment granting a directed verdict in favor of defendant, who is an heir of the mortgagor. Plaintiff-mortgagee also appeals the trial court's interlocutory judgment denying its motion for summary judgment. For the reasons that follow, we affirm the judgment denying plaintiff-mortgagee's motion for summary judgment; vacate the judgment dismissing plaintiff-mortgagee's claims; and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On December 21, 2007, Jay Frank Norris executed a promissory note in the principal amount of $142,500.00 and a mortgage. Under the terms of the mortgage, Mr. Norris granted Homecomings Financial, LLC, a mortgage over the property located at 1320 West Fairview Drive, Baton Rouge, Louisiana 70816. The note was endorsed by Homecomings Financial, LLC, and made payable to GMAC Bank. GMAC Bank later endorsed the Note and made it payable to GMAC Mortgage, LLC (GMAC). GMAC later endorsed the note in blank and transferred it to Ocwen Loan Servicing, LLC (Ocwen) on February 16, 2013.

Mr. Norris passed away on November 6, 2009. By court order dated March 22, 2010, Mr. Norris’ three children, Jarmeca Norris Berry, Janae Norris, and Brian Norris, were placed into ownership and possession of the property. On May 7, 2010, Jarmeca Norris Berry and Brian Norris executed a Donation Inter Vivos, conveying their interest in the property to their sister, Janae Norris.

On or about October 12, 2012, Ms. Norris mailed GMAC a check in the amount of $41,991.60, which included a note that it was her “final payment.” Ms. Norris testified that she made this payment because the house was in foreclosure and “the attorney” told her this was the amount she needed to pay to obtain the deed to the house. When she did not receive the deed, Ms. Norris testified that she and her attorney tried to call Ocwen but “[Ocwen] wouldn't give [her] any information because [she] didn't sign the loan papers[.]” A protracted dispute between Ocwen and Ms. Norris ensued.

On December 23, 2013, Ocwen filed a petition for executory process against Ms. Norris (“defendant”), averring that she failed to pay the monthly installments that were due since January 1, 2013, and because of this default, the entire unpaid principal balance in the amount of $16,895.36, plus interest and reasonable attorney's fees, was due. Ocwen prayed for an order of executory process and a writ directing the seizure and sale of the property to enforce its claim for the amounts due under the note. The sheriff's sale of the property was subsequently set for April 2, 2014. However, on the eve of the scheduled sale, defendant, admitting that she owned the property, filed a motion requesting injunctive relief to halt the sale. On April 8, 2014, the trial court issued a temporary restraining order enjoining Ocwen and the East Baton Rouge Parish Sheriff's Office from proceeding with the April 2nd sale of the property.

On or about June 11, 2014, defendant sent Ocwen a letter requesting that the company recalculate the amount owed under the loan and sought a “breakdown of all outstanding fees, late charges, curtailments, corporate advances, [and] property inspection.” On or about September 19, 2014, defendant sent Ocwen another letter, dated September 19, 2014, requesting a recalculation of the loan because she believed the loan had been paid in full and she disputed Ocwen's assessment of charges for hazard insurance and other fees. In her letter, defendant requested expedited consideration because she believed the property was scheduled to be foreclosed upon the following month.

The sheriff's sale was ultimately re-scheduled for March 25, 2015, but the scheduled sale was cancelled when the trial court issued another temporary restraining order enjoining the sale of the property. Ocwen subsequently filed a motion for summary judgment on February 28, 2018. In its motion, Ocwen prayed for a summary judgment denying defendant's request for injunctive relief and allowing it to proceed with the sale of the property. Defendant filed an opposition, and on July 10, 2018, the trial court denied the motion for summary judgment. According to Ocwen, the matter was subsequently converted to an ordinary proceeding.¹ On or about June 1, 2019, Ocwen merged with PHH Mortgage Corporation, doing business as PHH Mortgage Services, and Ocwen transferred the loan, including the note and mortgage, to PHH.

On July 26, 2024, PHH Mortgage Services, as Ocwen's successor, filed a motion for summary judgment. The motion sought a personal judgment against defendant in the amount of $122,863.05, plus interest and reasonable attorney's fees. The motion also sought recognition of the mortgage; dismissal of defendant's motion for injunctive relief; permission to sell the property; and costs. Multiple exhibits were attached to the motion, including the promissory note signed by defendant's father.² The motion was set to be heard on September 16, 2024.

On or about September 9, 2024, defendant fax-filed exceptions raising the objections of no cause of action, no right of action, and res judicata to the motion. In light of the fax-filed exceptions, counsel made a joint motion to re-set the hearing, which the trial court granted. On the new date of the hearing, October 28, 2024, the trial court heard arguments on the exceptions and motion for summary judgment and then rendered a judgment overruling defendant's exception raising the objection of no cause of action and denying PHH's summary judgment motion in a judgment signed November 8, 2024.³ PHH filed a writ application challenging the judgment, which this Court denied. See Ocwen Loan Servicing, LLC v. Norris, 2024-1069 (La. App. 1 Cir. 11/14/24), 2024 WL 4789921 (unpubiisbed writ action).

The matter proceeded to a bench trial on November 19, 2024. The parties stipulated that Ocwen merged with PHH Mortgage Corporation on June 1, 2019, and transferred the loan to PHH. PHH called its corporate representative and defendant to testify at trial. During the trial, defendant's counsel objected to the testimony of PHH's corporate representative due to the witness’ testimony that he was not actually employed by PHH. The trial court sustained the objection. PHH thereupon proffered Mr. Bankston's testimony regarding PHH's loan and business records. The note and mortgage were introduced into evidence at trial. After PHH finished the presentation of its case, defendant moved for a directed verdict, which the trial court granted. The judgment in favor of defendant was signed January 16, 2025, and later amended on February 24, 2025, following a Joint Motion for New Trial. The judgment granted defendant's motion for directed verdict and dismissed all claims asserted by Ocwen in the matter. PHH timely appealed the judgment.

On appeal, PHH challenges the February 24, 2025 judgment granting defendant's motion for directed verdict and the November 8, 2024 judgment denying its Motion for Summary Judgment.⁴ Specifically, PHH contends the trial court erred by: (1) considering defendant's unfiled, untimely opposition to PHH's summary judgment motion and denying the motion based on that opposition; (2) excluding the qualified witness designated by PHH to testify at trial regarding Ocwen's business records because the witness was not employed by PHH; (3) disallowing the introduction of PHH's business records although the witness laid a proper foundation for the records’ admission; and (4) granting defendant's directed verdict based on the erroneously excluded evidence.

DISCUSSION

Motion for Summary Judgment on a Promissory Note

Assignment of Error No. 1

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). If the party moving for summary judgment will bear the burden of persuasion on the subject issue at trial, that party must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 766 (per curiam). The directed verdict standard is met when, after considering all evidentiary inferences in the light most favorable to the party opposing the motion, it is clear the facts and inferences are so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. See McNeely v. Ford Motor Co., Inc., 98-2139 (La. App. 1 Cir. 12/28/99), 763 So.2d 659, 664, writ denied, 2000-0780 (La. 4/28/00), 760 So.2d 1182. Such an affirmative showing shifts the burden of proof to the party opposing the motion for summary judgment and requires that party to produce evidentiary materials that demonstrate the existence of a genuine issue for trial. Town of Sorrento v. East Ascension Consolidated Gravity Drainage District No. 1, 2021-1220 (La. App. 1 Cir. 4/12/22), 342 So.3d 89, 95. However, if there is any evidence in the record from any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party simply cannot obtain a summary judgment. Id.

Summary judgments are generally reviewed on appeal de novo.⁵ See Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. An appellate court asks the same questions as the trial court to determine whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3). See also Smith, 639 So.2d at 750. Even in the absence of formal opposition, the moving party must show that it is entitled to summary judgment. James as Co-Trustees of Addison Family Trust v. Strobel, 2019-0787 (La. App. 1 Cir. 6/24/20), 2020 WL 3446635, *4. The burden of proof rests with the mover. See La. C.C.P. art. 966(D)(1).

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Smith, 639 So.2d at 751. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Thompson v. Center for Pediatric and Adolescent Medicine, LLC, 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 445, writ denied, 2018-0583 (La. 6/1/18), 243 So.3d 1062.

To enforce a promissory note, a plaintiff must: 1) produce and present the note into evidence; 2) show that it was signed by the defendant; 3) show that the defendant has defaulted; and 4) as to an assignee, present evidence of a chain of assignments. Hebert v. Torbert, 2017-1628 (La. App. 1 Cir. 1/7/19), 2019 WL 126337, *3. Once the plaintiff in an action to recover on a promissory note submits sufficient evidence, the summary judgment burden then shifts to the defendant to submit evidence establishing the existence of a triable issue of fact with respect to a bona fide defense. Id.

On appeal, PHH contends the trial court erred in denying its motion for summary judgment because the trial court relied upon defendant's unfiled opposition as its basis for denying PHH's motion. PHH is correct that defendant failed to file its opposition into the record. PHH is also correct that this Court cannot consider an unfiled opposition even if the opposition was actually received by the trial court. See, e.g., Auricchio v. Harriston, 2020-01167 (La. 12/10/21), 332 So.3d 660, 663 (“The clear and unambiguous language of [La. C.C.P. art. 966(B)(2)] says that, absent the consent of the parties and the court, an opposition shall be filed within the fifteen-day deadline established by the article. ․ [P]rejudice is irrelevant.”). However, PHH's argument falters when it suggests the failure to file an opposition means PHH's motion for summary judgment must be granted vet non. As the mover, PHH still bears the initial burden of proof. La. C.C.P. art. 966(D)(1).

PHH failed to satisfy its initial burden of proof because it failed to introduce documentary evidence that defendant signed the note, as required in an action to enforce a promissory note.⁶ See Hebert, 2019 WL 126337, *3. The note produced by PHH was signed by defendant's father, who is deceased. PHH also failed to show that it is entitled to judgment as a matter of law against defendant, personally, as PHH failed to set forth the law that governs claims against the heir of a mortgagor, as is present in this case.⁷ The cases PHH relies upon to contend that it is entitled to judgment as a matter of law involved defendants who incurred the debt themselves. See Dugas v. Modular Quarters, Inc., 561 So.2d 192 (La. App. 3 Cir. 1990); Citizens Bank & Trust Co. v. Consolidated Terminal Warehouse, Inc., 460 So.2d 663 (La. App. 1 Cir. 1984); Humphrey v. Humbrecht, 427 So.2d 461 (La. App. 5 Cir. 1983), writ denied, 433 So.2d 1052 (La. 1983); Fontenot v. LaFleur, 281 So.2d 868 (La. App. 3 Cir. 1973), writ not considered, 284 So.2d 336 (La. 1973). (R. 300; appellant brief, p. 18). None of the cases cited by PHH involved a suit against the heir of the person who signed the note. Because PHH failed to produce evidence that the note was signed by defendant and also failed to show that it was entitled to judgment as a matter of law, PHH failed to sustain its initial burden of proof as mover. See James, 2020 WL 3446635, *4.⁸ ,⁹ Accordingly, we find no error in the trial court's November 8, 2024 judgment denying PHH's motion for summary judgment.

Judgment Granting Defendant's Motion for Directed Verdict

Assignments of Error Nos. 2 through 4

Next, PHH challenges the February 24, 2025 judgment granting defendant's motion for directed verdict and the evidentiary rulings that led to the directed verdict. We begin by pointing out that defendant's motion for directed verdict was procedurally improper because directed verdicts are only appropriate in jury trials. See La. C.C.P. art. 1810. See also Andersen v. Succession of Bergeron, 2016-0922 (La. App. 1 Cir. 4/12/17), 217 So.3d 1248, 1253, n. 8. In a case tried by a judge only, the appropriate remedy for dismissal was a motion for involuntary dismissal. See La. C.C.P. art. 1672(B). See also Andersen, 217 So.3d at 1253, n. 8. Because misdesignation of a motion is an error of form over substance, we consider them the same motion. Id. We will however refer to defendant's motion as a motion for involuntary dismissal.

On appeal, PHH challenges the exclusion of certain testimony by its corporate witness and its business records, contending these evidentiary rulings constitute prejudicial errors of law that warrant vacating the trial court's involuntary dismissal of its claims. We agree.

The challenged evidentiary rulings pertain to testimony from the witness PHH called to testify as its corporate representative, Cedric Bankston. Mr. Bankston testified that he was an employee of Onity Group, LLC (“Onity”); that Onity was the successor to PHH; and that he had reviewed PHH's business records including the loan at issue in this case. After Mr. Bankston testified that he was employed by Onity, defendant's counsel objected to his testimony, contending he lacked personal knowledge of PHH and its business records. The trial court sustained the objection. After PHH finished the presentation of its case, defendant moved for an involuntary dismissal, which the trial court granted because it found PHH failed to satisfy its burden of demonstrating there was an outstanding balance due under the note.

As oral reasons for judgment, the trial court stated:

I don't have the payment or the balance that the plaintiff is arguing ․ is owed on the note. They brought Mr. Bankston to testify, but Mr. Bankston is not an employee of PHH. I know counsel and Mr. Bankston were saying that PHH is a subsidiary of ․ Onity -- but there's no documentation that has been presented to the court to show that relationship between the two entities for this court to accept the testimony of Mr. Bankston or allow the documents in which Mr. Bankston was to testify. So therefore, the court finds that the plaintiff has not carried [its] burden to show that there is an outstanding balance as it relates to the property of 1320 W. Fairview Dr. Therefore, the court rules in favor of the defense.

Generally, the trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Emery v. Owens-Corporation, 2000-2144 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 448, writ denied, 2002-0635 (5/10/02), 815 So.2d 842. However, we find the exclusion of Mr. Bankston's testimony and PHH's business records was an abuse of discretion under the facts of this case.

Under La. C.E. art. 803(6), “[r]ecords of regularly conducted business activity” are admissible hearsay if the proponent can establish the record was (1) made at or near the time by, or from information transmitted by, (2) a person with knowledge, (3) made and kept in the course of a regularly conducted business activity, and (4) that it was the regular practice of that business activity to make and to keep the information. Finch v. ATC/Vancom Mgmt. Servs. Ltd. P'ship, 09-483 (La. App. 5 Cir. 1/26/10), 33 So.3d 215, 220. Louisiana jurisprudence has held that the wording of La. C.C art. 803(6) does not preclude the introduction of incorporated business records originally generated by another business, if properly authenticated and determined to be trustworthy by the trial court. Velocity Investments, LLC v. Pasqua, 2022-0626 (La. App. 1 Cir. 1/10/23), 361 So.3d 23, 29. The party who seeks to introduce written hearsay evidence pursuant to La. C.E. art. 803(6) must authenticate it by a qualified witness. Velocity Investments, 361 So.3d at 29.

The witness laying the foundation for admissibility of business records need not have been the preparer of the records; rather, La. C.E. art. 803(6) permits the custodian of the record “or other qualified witness” to establish the essential foundational predicate. Larios v. Martinez, 2017-514 (La. App. 5 Cir. 2/21/18), 239 So.3d 1041, 1046. A qualified witness need only “have familiarity with the record-keeping system” of the entity whose business records are sought to be introduced. Id. A qualified witness who testimonially explains the record-keeping procedures of the business lays the foundation for the admissibility of the records. See State v. Juniors, 2003-2425 (La. 6/29/05), 915 So.2d 291, 327, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669. The witness laying the foundation for admissibility of the business records does not have to be the preparer of the records. Velocity, 361 So.3d at 29.

In this case, Mr. Bankston explained the record-keeping procedures of PHH, stating as follows in his proffered testimony:

Q: Are you familiar with the type of records that PHH maintains in the course of its business as a loan servicer?

A: I am.

Q: Does PHH keep the note - this note in the ordinary course of its regularly conducted activities?

A: We do.

․ Q: And does PHH keep a copy of the mortgage in the ordinary course of its regularly conducted business activities?

A: We do.

․

Q: When PHH acquires a loan from another lender or another loan servicer, what type of documents does PHH receive from that prior servicer or lender?

A: ․ [I]n general, all documents or any correspondence or any paper documents that are associated with the loan file is transferred to a new owner.

Q: Would PHH also receive documentation related to the payment histories or transaction histories on the - for the loan?

A: Correct.

․

Q: ․ Based on your review of the loan file, when Ocwen acquired this loan from GMAC Mortgage, did it also receive similar records from GMAC related to the loan?

A: Correct. ․

․

Q: And does PHH keep the records that were belonging to GMAC and then Ocwen in the regular course of its business activities?

A: Yes, it does.

Mr. Bankston further testified that he has had the same employer since 2006 - beginning his employment with Homecoming Financial, which became GMAC Mortgage, which became Ocwen Financial Corporation, which became PHH, which became Onity. He also testified that he had personal knowledge based on his review of the records relating to the mortgage at issue in this case.

This testimony sufficiently establishes that Mr. Bankston is a qualified witness with personal knowledge and competency to testify regarding PHH and its business records. See Midland Funding LLC v. Stack, 2020-1310 (La. App. 1 Cir. 10/21/21), 2021 WL 4901976, *3, writ denied, 2022-00038 (La. 3/2/22), 333 So.3d 833. See also PNC Bank, National Association v. Ruiz, 2023 WL 3340078, *3 (U.S. 5th Cir. 2023). The trial court abused its discretion by excluding Mr. Bankston's testimony and the PHH business records. See Larios, 239 So.3d at 1046. We furthermore find that the erroneous exclusion of the PHH business records was a consequential error that indicted the factual findings, thereby prejudicing or tainting the judgment rendered. See Roberts v. Rudzis, 2013-0538 (La. App. 1 Cir. 5/28/14), 146 So.3d 602, 605-606, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797. After all, the trial court stated that defendant's motion for an involuntary dismissal was granted because there was no evidence of the payments made or the balance due on the loan. The trial court did not have that evidence because PHH's business records had been excluded.

Having determined that the trial court erred in excluding evidence offered in support of the plaintiff's case, we must next determine whether to conduct de novo review or remand for further proceedings. See Gorman v. Miller, 2012-0412 (La. App. 1 Cir. 11/13/13), 136 So.3d 834, 841. As a general rule, when the trial court makes evidentiary errors that are prejudicial, such that they materially affect the outcome of the trial and deprive a party of substantial rights, the appellate court will conduct its own de novo review of the record if the record is otherwise complete. See La. C.E. art. 103(A); see also Gorman, 136 So.3d at 841. However, the Louisiana Supreme Court has also recognized that in limited circumstances, when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court should remand the case to the trial court under the authority of Louisiana Code of Civil Procedure article 2164, rather than undertaking de novo review. Gorman, 136 So.3d at 841, citing Wegener v. Lafayette Ins. Co., 2010-0810 (La. 3/15/11), 60 So.3d 1220, 1233. We find that remanding this case, rather than conducting de novo review, is just, legal, and proper under the facts of this case. See La. C.C.P. art. 2164. Specifically, we find that remand is warranted in this case because the record is not otherwise complete; the trial court granted the involuntary dismissal before the presentation of defendant's case. See Gorman, 136 So.3d at 842. We thus vacate the trial court's involuntary dismissal of plaintiff's case and we remand for a new trial. See Wegener, 60 So.3d at 1234.

CONCLUSION

For the foregoing reasons, we affirm the trial court's November 8, 2024 judgment denying the motion for summary judgment filed by PHH Mortgage Loan Servicing, Successor by Merger to Ocwen Loan Servicing, LLC; we vacate the trial court's February 24, 2025 judgment granting Janae Norris’ motion for involuntary dismissal; and we remand to the trial court for a new trial. We assess costs of this appeal equally to PHH Mortgage Loan Servicing, Successor by Merger to Ocwen Loan Servicing, LLC, and Janae Norris.

NOVEMBER 8, 2024 JUDGMENT DENYING MOTION FOR SUMMARY JUDGMENT AFFIRMED; FEBRUARY 24, 2025 JUDGMENT VACATED; REMANDED FOR NEW TRIAL.

Respectfully, I find the majority errs in determining that Hopkins v. American Cyanamid Company, 95-1088 (La. 1/16/96), 666 So.2d 615, and McGregor v. Hospice Care of Louisiana in Baton Rouge, Inc., 2008-2029 (La.App. 1 Cir. 3/27/09), 2009 WL 838621, do not apply in this case. In McGregor, this court applied Hopkins to a case in the same procedural posture as the case before this court, i.e., the plaintiffs were seeking appellate review of (1) the dismissal of their suit on the defendants’ motion for involuntary dismissal, and (2) the denial of plaintiffs’ motion for partial summary judgment. In finding that Hopkins was applicable in McGregor, this court wrote:

In the instant case, we note that the matter was not fully tried below, in that plaintiffs’ suit was dismissed on defendants’ motion for involuntary dismissal. However, because the dismissal came at the close of plaintiffs’ case, plaintiffs had a full opportunity at trial to establish their claims. As such, and in light of the pronouncements in Hopkins, we conclude that any review at this juncture of the denial of plaintiffs’ motion for partial summary judgment should likewise be based on the entire record. See Hopkins, 666 So.2d at 624.

The majority finds this matter to be distinguishable from McGregor, asserting that the plaintiffs in McGregor had a “full opportunity at trial to establish their claims,” whereas PHH was denied a full opportunity at trial to establish its claims by the trial court's erroneous exclusion of evidence. However, this reasoning overlooks the fact that the erroneously excluded evidence was proffered, and therefore, the entirety of PHH's evidence was preserved and available for this court's review on appeal. Accordingly, I disagree with the majority's de novo review of the denial of PHH's motion for summary judgment, finding it inappropriate to simply disregard the additional evidence that was offered at trial in light of the Louisiana Supreme Court's ruling in Hopkins and this court's ruling in McGregor.

In all other respects, I concur with the result reached by the majority.

FOOTNOTES

1.   We note that the record does not contain an amending petition converting the matter from executory process to an ordinary proceeding. Louisiana Code of Civil Procedure article 2644, entitled “Conversion to ordinary proceeding,” states in pertinent part: “The plaintiff in an executory proceeding may convert it into an ordinary proceeding by amending his petition so as to pray that the defendant be cited and for judgment against him on the obligation secured by the mortgage or privilege.”

2.   The motion for summary judgment also attached an Affidavit of Benjamin Verdooren, a senior loan analyst for Onity Group, Inc.; a certified copy of the mortgage; a certified copy of the Judgment of Possession; a Certified Copy of the Donation Inter Vivos; excerpts from the deposition of defendant; and filings from an earlier lawsuit brought by GMAC Mortgage against defendant.

3.   The November 8, 2024 judgment does not contain a ruling on defendant's exceptions raising the objections of res Judicata and no right of action.

4.   This Court may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. Songy v. Bayou Bridge Pipeline, LLC, 2020-0860 (La. App. 1 Cir. 2/19/21), 320 So.3d 434, 439 n. 7, writ denied, 2021-00412 (La. 5/11/21), 315 So.3d 869.

5.   However, the de novo standard of review does not apply when an appellate court reviews the denial of a motion for summary judgment after there has been a full trial on the merits. See Browne v. State ex rel. Dept. of Transp. and Development, 2015-0667 (La. App. 1 Cir. 2/4/16), 2016 WL 455938, at *3-4, writ denied, 2016-0442 (La. 4/22/16), 191 So.3d 1044. According to the Louisiana Supreme Court, “once a case is fully tried,” the affidavits and other limited evidence presented with a motion for summary judgment -- later denied by the district court are of little or no value. Hopkins v. American Cyanamid Co., 1995-1088 (La. 1/16/96), 666 So.2d 615, 624. In that situation, appellate courts should review the entire record. Hopkins, 666 So.2d at 624. The de novo standard of review is no longer pertinent then. Browne, 2016 WL 455938, at *4.--While PHH seeks review of a judgment denying its motion for summary judgment, the heightened standard of review set forth in Hopkins and Browne does not apply to this Court's review of that judgment because this case was not fully tried and the trial court excluded evidence that was material and essential to the presentation of PHH's case. Cf. McGregor v. Hospice Care of Louisiana in Baton Rouge, Inc., 2008-2029 (La. App. 1 Cir. 3/27/09), 2009 WL 838621, at *9-10 (where this Court considered the entire record when reviewing the denial of a motion for summary judgment in a case where the trial court involuntarily dismissed plaintiffs’ suit, finding the plaintiffs had a “full opportunity at trial to establish their claims.”). The unique circumstances of this case distinguish this case from Hopkins and McGregor because PHH did not have a full opportunity at trial to establish its claims. We thus find that the standard of review set forth in Smith, supra, governs our review of the judgment denying PHH's motion for summary judgment. See Hopkins, 666 So.2d at 624; McGregor, 2009 WL 838621, at *10.

6.   We also note that PHH's motion for summary judgment seeks a personal judgment against the defendant although there is no petition or amended petition praying for this relief. Louisiana Code of Civil Procedure article 966(A) provides that a party may move for a summary judgment for all or part of the relief for which he has prayed. PHH's motion for summary judgment thus appears problematic for the additional reason that it sought relief beyond the scope of relief Ocwen prayed for in its petition.

7.   PHH also failed to show the basis in law for rendering a judgment in its favor, when the named plaintiff in this matter is Ocwen.

8.   The motion for summary judgment also appears to be premature because the record does not reflect that defendant ever filed an answer. See La. C.C.P. art. 966(A)(1). See also Deutsche Bank National Trust Co. v. Thomas, 2010-1453 (La. App. 1 Cir. 2/11/11), 57 So.3d 1185, 1187-1188 (where this Court vacated a summary judgment granted in favor of a plaintiff because the plaintiff filed its motion for summary judgment before defendant filed an answer).

9.   This opinion does not purport to decide whether the law ultimately permits a mortgagee like PHH to obtain a personal judgment against the heir of a mortgagor like defendant. Our holding is limited to finding that PHH failed to satisfy its burden of proving that it was entitled to summary judgment.

GREENE, J.

McClendon, J. dissenting in part and concurring in part for the reasons assigned.