SPECIALIZED LOAN SERVICING LLC v. MONIQUE HIBBS MONIQUE HIBBS (2026)

This matter is before us on appeal by defendant, Monique L. Hibbs a/k/a Monique Hibbs, from a judgment of the trial court denying her exception of no right of action and granting summary judgment in favor of U.S. Bank Trust National Association in its capacity as Owner Trustee for VRMTG Asset Trust (“the Bank”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 12, 2006, Ms. Hibbs executed a promissory note (“the note”) for the principal sum of $199,900.00 payable to American Home Mortgage in monthly installments of $1,247.12. The note was secured by a mortgage executed that same day on property owned by Ms. Hibbs, located at 13527 Arnold Road in Walker, Louisiana, which was recorded with the Clerk of Court in Livingston Parish.

The note was subsequently endorsed ¹ by American Home Mortgage unto Wells Fargo Bank, N.A. (“Wells Fargo”) and then endorsed in blank by Wells Fargo, purportedly rendering the note “bearer paper,” which was transferable by possession. On January 29, 2011, Wells Fargo and Ms. Hibbs executed a Loan Modification Agreement modifying the repayment terms of the original note. On January 3, 2017, Wells Fargo filed a petition for foreclosure by executory process against Ms. Hibbs in Livingston Parish, assigned as suit number 154,220, alleging that the note was in default beginning with the payment due on December 1, 2015.²

On May 12, 2020, Wells Fargo assigned the note to Specialized Loan Servicing, LLC (“SLS”), pursuant to a “Corporate Assignment of Mortgage,” which was filed and recorded with the Clerk of Court for Livingston Parish. Following its assignment of the note to SLS, the trial court dismissed Wells Fargo's foreclosure suit by executory process (number 154,220) on July 1, 2020, on the grounds of abandonment pursuant to a motion by Ms. Hibbs.

As assignee and holder of the note, on August 5, 2020, SLS instituted the instant suit for executory process against Ms. Hibbs likewise averring that the note was in default beginning with the payment due December 1, 2015. SLS alleged that “directly or through an agent [it had] possession of the promissory note” with the original note being held by the Clerk of Court in Wells Fargo suit number 154,220 that was deemed abandoned. The trial court ordered that a writ of seizure and sale be issued and commanded the Sheriff to seize and sell the property affected by the mortgage with appraisal to satisfy the amounts prayed for.

Ms. Hibbs responded by filing a petition for preliminary and permanent injunctions to arrest the seizure and sale on the basis that, because the note remained filed in the Wells Fargo abandoned suit number 154,220, the holder of the note was the Clerk of Court for Livingston Parish - not SLS. Ms. Hibbs contended that SLS was thus not entitled to proceed by executory process. Ms. Hibbs further alleged that because SLS was not a party to the January 29, 2011 Loan Modification Agreement, it had no right to enforce it. Ms. Hibbs subsequently amended her petition for preliminary and permanent injunctive relief to further allege that SLS's suit should be dismissed on the basis of lis pendens, pursuant to La. C.C.P. art. 531, where the abandoned Wells Fargo suit number 154,220 and SLS's instant suit number 167,613 attempt to enforce the same promissory note, with both alleging a December 1, 2015 default date.

SLS filed an “Exception/Objection/Answer” contending that an exception of lis pendens was not a proper procedural device to arrest a seizure and sale and that Ms. Hibbs had failed to state a cause of action in her petition for injunctive relief.

Following a hearing, the trial court signed a judgment on May 10, 2021, granting the motion for a preliminary injunction and granting SLS leave of court to convert the executory proceedings to ordinary proceedings. Thereafter, SLS filed a motion to convert the matter to ordinary proceedings and to file a supplemental and amending petition, which was granted by the trial court. In its first supplemental and amending petition, SLS contended that the note was endorsed by the original holder, American Home Mortgage, unto Wells Fargo, and was then endorsed in blank by Wells Fargo, who then executed a Corporate Assignment of Mortgage to SLS. SLS reasserted all allegations set forth in its petition for executory process seeking a money judgment against Ms. Hibbs for all sums due under the terms of the note. On July 6, 2021, the trial court signed a consent order granting SLS's petition to convert to ordinary process; ordering that the preliminary injunction remain in full force and effect; reserving Ms. Hibbs’ objections and defenses; and ordering that the supplemental and amending petition of U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely as Owner Trustee for VRMTG Asset Trust (the Trustee) (referred to herein as “the Bank”) along with a certified copy of the petition for executory process be filed into the suit record and served on Ms. Hibbs.

SLS then filed a motion for leave to transfer the original promissory note from the dismissed Wells Fargo suit number 154,220 to the instant suit. Ms. Hibbs opposed the motion arguing that the Clerk of Court had custody of the note from the date it was filed on January 3, 2017, such that SLS never gained physical possession of the note; that the motion to transfer the note should have been filed in the dismissed Wells Fargo suit number 154,220 as the judge who presided over that case was the proper judge to hear the motion; and that Wells Fargo was the proper party to move to remove the note — not SLS. Following a hearing, the trial court signed an order on July 19, 2021, granting SLS's motion to transfer the note and ordering the Clerk of Court for Livingston Parish to transfer the original promissory note from suit number 154,220 to the instant suit number 167,613.

Ms. Hibbs filed a peremptory exception of no right of action alleging that the note was not bearer paper and that SLS never gained possession of the note. Ms. Hibbs averred that the note was never validly negotiated and delivered to SLS such that SLS has no right to enforce the note.

SLS opposed the exception contending that it was the only class of persons who possessed the right to enforce the note and there was no other person, firm, corporation, partnership, limited liability company, lender, or other entity that had any rights to asserts the claims brought by SLS in this litigation. SLS asserted that testimony by Wells Fargo and SLS representatives would establish that: (1) it was the holder in due course of the note; (2) the mortgage securing the note was assigned to it by the previous holder of the note, Wells Fargo; and (3) certain presumptions exist, which establish that SLS was the proper party to bring this action, including: (a) endorsement in blank of the note by Wells Fargo; (b) negotiation of the note by Wells Fargo to SLS; (c) transfer and delivery of the note by Wells Fargo to SLS; and (d) possession of the note by SLS after Wells Fargo negotiated, transferred, and delivered the note to SLS. SLS concluded that Ms. Hibbs cannot present any evidence that refutes the established presumptions.

Following a hearing, the trial court signed a judgment on October 26, 2021, denying the exception of no right of action. Ms. Hibbs filed a motion for new trial, which was subsequently denied by the trial court in a March 9, 2022 judgment. The March 9, 2022 judgment further ordered Ms. Hibbs to file an answer and deferred hearing a second exception of no right of action filed by Ms. Hibbs until the trial on the merits. Ms. Hibbs sought supervisory review of these rulings, which was denied. See Specialized Loan Servicing, LLC v. Hibbs, 2022-0326 (La. App. 1st Cir. 7/18/22), 2022 WL 2803274 (unpublished), writ denied, 2022-01165 (La. 11/1/22), 349 So. 3d 4.

Thereafter, Ms. Hibbs answered SLS's original and supplemental petitions, re-urged the exception of no right of action, and filed a reconventional demand seeking damages for the alleged wrongful seizure of her property. SLS again opposed her exception of no right of action and answered her reconventional demand.

On June 21, 2024, SLS and the Bank filed a joint motion to substitute contending that on January 4, 2024, SLS had negotiated, transferred, and assigned the note and mortgage to “U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely as Owner Trustee for VRMTG Asset Trust (the Trustee)” and requested that the Bank be substituted in the place of SLS as a proper party plaintiff. Ms. Hibbs opposed the motion contending that SLS circumvented the requirement that a substitution be by an amended petition and that SLS had made no showing that the note ever changed hands. Following a hearing, the trial court agreed, denying the motion to substitute, but granting SLS leave to file an ex parte supplemental and amending petition. SLS then filed a second supplemental and amending petition substituting the Bank as the proper party plaintiff, which was granted by the trial court and ultimately answered by Ms. Hibbs.

As the proper party plaintiff, on November 14, 2024, the Bank filed a motion for summary judgment contending that it was entitled to judgment as a matter of law where Ms. Hibbs “produced no evidence that negate[d] her obligations owed to [the] Bank under the promissory note and mortgage.” In support of its motion, the Bank attached copies of: (1) the note; (2) mortgage; (3) assignment of mortgage; (4) an affidavit by Robert Ortega, an employee of NewRez, LLC d/b/a Shellpoint Mortgage Servicing, attorney in fact for the Bank; (5 & 6) account payment of principal and interest histories; (7-13) property inspections; (14) flood hazard insurance; (15 & 16) default services fee; (17) property taxes and other property hazard insurance; and (18) attorney fees, court costs, and related charges.

Ms. Hibbs filed an opposition to the motion for summary judgment, which she supported with copies of: (1) the original petition in the Wells Fargo suit; (2) a certified copy of the note; (3) the original petition in the instant SLS suit; (4) a certified copy of the civil court ledger in the Wells Fargo suit; (5) the affidavit of Stefani Bendily, Deputy Clerk of Court, Livingston Parish; and (6) the Corporate Assignment of Mortgage from Wells Fargo to SLS.

Following the Bank's filing of a motion for summary judgment, Ms. Hibbs filed yet another exception of no right of action. Therein, she reasserted her position that since SLS never gained possession of the note from Wells Fargo, it had no right to institute these proceedings and transfer the note to the Bank. The Bank filed an opposition to the exception contending that the trial court signed an order substituting the Bank as the proper party plaintiff in this matter and that the Bank had the right to proceed with this action and obtain a money judgment with recognition of the mortgage in its own name. The Bank further contended that constructive possession of the note satisfied the Uniform Commercial Code's possession requirement, citing Ford Motor Credit Co. v. Soileau, 357 So. 2d 563, 567 (La. App. 3rd Cir. 1978).

Both matters, the Bank's motion for summary judgment and Ms. Hibbs’ exception of no right of action, were heard by the trial court on February 26, 2025. The trial court took up the exception first, which it denied noting, “I have gone through this and I have already ruled on this.”

The trial court then heard argument on the motion for summary judgment, after which it granted the motion, finding no genuine issue of material fact remained.³ On March 10, 2025, the trial court signed a judgment in conformity with its oral rulings, and rendered judgment against Ms. Hibbs for the following sums:

Principal: $201,415.45

Interest: $116,737.72 (accumulated from 11/1/15 to 12/4/24 and thereafter at the rate of 6.375% per annum until paid)

Escrow advances: $63,817.90

Insurance: $9,174.00

Corporate advances: $5,996.56

Unapplied balance: (-$720.00)

Total: $396,421.63

The judgment further awarded the Bank attorney fees and court costs and fully recognized the Bank's mortgage as encumbering the property located at 13527 Arnold Road in Walker, Louisiana.

Ms. Hibbs appealed, contending that the trial court erred in: (1) denying her exception of no right of action; (2) granting the Bank's motion for summary judgment without proving that her signature was on the note; and (3) granting the Bank's motion for summary judgment without producing the original note.⁴

DISCUSSION

At the outset, we note that the summary judgment granted in favor of the Bank granted all of the Bank's claims against Ms. Hibbs. Although the trial court retained jurisdiction over Ms. Hibbs’ reconventional demand (i.e., her claims for wrongful seizure), because the judgment before us on appeal resolves all of the issues in the principal demand, we conclude that it is a final judgment subject to an immediate appeal pursuant to La. C.C.P. art. 1915(A)(3). See Qasem v. Acadian Apartments, Inc., 2017-1591 (La. App. 1st Cir. 6/1/18), 252 So. 3d 1, 3.

Exception of No Right of Action 5

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The exception of no right of action assumes that the petitions state a valid cause of action and tests whether the plaintiff, as a matter of law, has an interest in judicially enforcing the right asserted. La. C.C.P. art. 927(A)(6); JP Morgan Chase Bank, N.A. v. Boohaker, 2014-0594 (La. App. 1st Cir. 11/20/14), 168 So. 3d 421, 426. The exception does not raise the question of the plaintiff's ability to prevail on the merits or whether the defendant may have a valid defense. Pearce v. Lagarde, 2020-1224 (La. App. 1st Cir. 10/7/21), 330 So. 3d 1160, 1167, writ denied, 2022-00010 (La. 2/22/22), 333 So. 3d 446.

The party raising a peremptory exception of no right of action bears the burden of proof. Thus, in order to prevail, the defendant, Ms. Hibbs, must show that the plaintiff, the Bank, does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. See Pearce, 330 So. 3d at 1167. Evidence supporting or controverting an exception of no right of action is admissible for the purpose of showing whether the plaintiff possesses the right claimed or whether the right does not exist. See La. C.C.P. art. 931; Pearce, 330 So. 3d at 1167. Where doubt exists regarding the appropriateness of an exception of no right of action, it is to be resolved in favor of the plaintiff. Pearce, 330 So. 3d at 1167.

Generally, the trial court's ruling sustaining an exception of no right of action is reviewed de novo on appeal, because it involves questions of law. Pearce, 330 So. 3d at 1167. However, when evidence is introduced to support or controvert an exception of no right of action, factual findings of the trial court are reviewed under the manifest error standard of review. Gulf Production Company, Inc. v. Halliburton Energy Services, Inc., 2023-1111 (La. App. 1st Cir. 8/6/24), 394 So. 3d 856, 863.

In a suit on a promissory note, the payee who produces the note sued upon makes out a prima facie case of its claim to enforce the note. JP Morgan Chase Bank, N.A., 168 So. 3d at 426. However, if the face of the instrument indicates that title is in any person other than the possessor of the note, the burden is on the possessor to prove his ownership. Failure to prove a valid transfer results in a loss of the right to sue on the note. JP Morgan Chase Bank, N.A., 168 So. 3d at 426.

Pursuant to La. R.S. 10:3-301, a “[p]erson entitled to enforce” an instrument includes:

(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to R.S. 10:3-309 or 10:3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Although La. R.S. 10:3-301 does not specify how a nonholder in possession of the instrument can obtain the rights of a holder, the Uniform Commercial Code Comment for the provision explains that such rights can be acquired by “subrogation or under Section 3-203(a).” The comment further provides that a nonholder with the rights of a holder includes “any other person who under applicable law is a successor to the holder or otherwise acquires the holder's rights.” See JP Morgan Chase Bank, N.A., 168 So. 3d at 426, quoting La. R.S. 10:3-301, Uniform Commercial Code Comment to La. R.S. 10:3-301.

Louisiana Revised Statutes 10:3-203, which provides for the transfer of an instrument and the rights acquired by such transfer, states in part:

(a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.

(b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.

As further explained in the Uniform Commercial Code Comment to La. R.S. 10:3-203, proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder. At that point, the transferee is entitled to the presumption under La. R.S. 10:3-308(a), that the signature is authentic and authorized unless its validity is denied in the pleadings. See JP Morgan Chase Bank, N.A., 168 So. 3d at 427.

Ms. Hibbs bore the burden herein of establishing that the Bank did not have an interest in the subject matter of the suit or the legal capacity to proceed with the suit. See Pearce, 330 So. 3d at 1167. Ms. Hibbs argues that because the Bank has failed to establish that it is a holder of the note it has no right to enforce it. Ms. Hibbs further contends that there is no evidence that Wells Fargo transferred possession of the note to SLS and that SLS and the Bank are “still” not in possession of the note, which she contends remains in the Wells Fargo suit record. In support of her exception of no right of action, Ms. Hibbs introduced: (1) the original petition in the Wells Fargo suit; (2) a certified copy of the promissory note held by the Clerk of Court for Livingston Parish; (3) the original petition in the proceedings by SLS; (4) a certified copy of the civil court ledger report in the Wells Fargo case showing that no motion and order was filed to remove the original note; (5) the affidavit of Stefani Bendily, Deputy Clerk of Livingston Parish; and (6) the corporate assignment of mortgage from Wells Fargo to SLS.⁶

The Bank contends that although the note is in the physical custody of the Clerk of Court for Livingston Parish, the clerk can never become the “holder” of the note. The Bank contends that it has maintained possession of the note from the moment it obtained all rights to it as evidenced by the testimony of witnesses, production of the note to the trial court during the trial of the exceptions of no right of action, presentation of the note to the trial court during the motion for summary judgment, and the blank endorsement found on the back of the note. The Bank contends that constructive possession satisfies the Uniform Commercial Code's requirements to be a holder, which has been recognized in the law.

In denying the exception, the trial court relied on Ford Motor Credit Co., 357 So. 2d at 567, citing Preferred Investment Corporation v. Denson, 251 So. 2d 455, 457 (La. App. 1st Cir. 1971), which held in commercial law, a note can be transferred from a holder to a transferee and that the transferee has at least the same rights as the transferor, citing La. R.S. 10:3-201, such that the transferee of the note is the proper party to enforce collection of the unpaid balance of the note. The trial court reasoned that “loans are assigned frequently, even during the course of judicial proceedings ․ [and that i]ndustry practices indicate, or dictate rather, that simply because a party doesn't ․ physically touch the note, it doesn't mean they weren't in possession of it.” The trial court acknowledged that underlying policy reasons supported the finding that creditors should be able to freely assign accounts during the course of judicial proceedings despite the fact that the clerk of court held the notes. The trial court additionally noted that at the trial on the motion to substitute, the original note was presented to the court by a witness who identified the note and testified as to the negotiation and transfer of the note.

In the petition from the Wells Fargo suit, Wells Fargo alleged that Ms. Hibbs signed a promissory note in the amount of $199,900.00 and defaulted on that note. Wells Fargo indicated American Home Mortgage was the initial holder of the note and that it indorsed the note to Wells Fargo who, in turn, indorsed the note in blank, making it bearer paper, meaning the note can be negotiated by transfer of possession alone. See La. R.S. 10:3-109. SLS alleged in its original petition that SLS “directly or through an agent” had possession of the promissory note. SLS averred in its first supplemental and amending petition that the note was endorsed by the original holder, American Home Mortgage, unto Wells Fargo, and was then endorsed in blank by Wells Fargo, who then executed a Corporate Assignment of Mortgage to SLS. In its second supplemental and amending petition, SLS averred that it “negotiated, transferred and assigned the promissory note and mortgage to” the Bank and that the Bank “is the current holder of the note secured by the mortgage.” SLS also asserted and reiterated all other allegations of fact contained in its previously filed petitions. The Bank alleges that on January 4, 2024, SLS negotiated, transferred, and assigned the note and mortgage to it pursuant to an assignment of mortgage and note. For purposes of the exception of no right of action, those allegations are accepted as true unless Ms. Hibbs, who has the burden of proof, introduced evidence that controverted the allegations. See JP Morgan Chase Bank, N.A., 168 So. 3d at 427.

It is undisputed that when SLS filed its petition on August 5, 2020, the original note was in the record of the Wells Fargo suit in the custody of the Clerk of Court of Livingston Parish. On July 19, 2021, however, the trial ordered that the note be transferred to the instant suit. No one disputes that the note showed an endorsement from American Home Mortgage to Wells Fargo. The record further establishes that the note was endorsed in blank on the backside by Wells Fargo.

Based on our review of the note, we find that the endorsement made by Wells Fargo on the backside of the note constitutes a blank endorsement and that the note was transferred upon delivery. “If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a ‘blank indorsement.’ When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.” La. R.S. 10:3-205(b).⁷

Apart from the writing on the note, the Corporate Assignment of Mortgage, signed on May 12, 2020,⁸ lists Wells Fargo as the assignor and SLS as the assignee, and provides as follows:

KNOW ALL MEN BY THESE PRESENTS, that for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the said Assignor hereby assigns unto the above-named Assignee, the said Mortgage having an original principal sum of $199,900.00 with interest, secured thereby, and the full benefit of all the powers and of all the covenants and provisos therein contained, and the said Assignor hereby grants and conveys unto the said Assignee, the Assignor's interest under the Mortgage.

We note that Wells Fargo filed the note with the Livingston Parish Clerk of Court to prove its right to executory process in the Wells Fargo suit, see La. C.C.P. art. 2635(A)(1), and the clerk retained possession for inclusion in the record as required by law for Wells Fargo, pursuant to La. C.C.P. art. 253(A). The Wells Fargo suit was subsequently dismissed as abandoned. While the Wells Fargo suit was still pending, Wells Fargo transferred the mortgage on Ms. Hibbs’ property to SLS via the May 12, 2020 Corporate Assignment of Mortgage. SLS then filed a petition for executory process to enforce the note. In SLS's petition, SLS alleged that it was in possession of the note directly or through an agent. SLS then negotiated, transferred, and assigned the note and mortgage to the Bank who the trial court subsequently substituted as the proper party plaintiff in these proceedings. At the trial of this matter, the Bank produced the original note, and therefore successfully made a prima facie case of its right to enforcement. See Consumer Solutions, LLC v. Thompson, 2020-01359 (La. 2/9/21), 309 So. 3d 730, 730-731 (per curiam). The mere fact that the Bank may not have had physical possession of the note when the suit was filed does not, in and of itself, defeat its claim to the right to enforce. See La. R.S. 10:3-301; Consumer Solutions, LLC, 309 So. 3d at 731. The Bank not only produced the original note, endorsed in blank, but produced assignments establishing transference of the note from the original maker to itself.

On review, we find that the trial court correctly determined that the Bank established its right to enforce the note at issue. See Consumer Solutions, LLC, 309 So. 3d at 731. We further find that the evidence set forth by Ms. Hibbs failed to refute that SLS was the transferee of the original note. Instead, Ms. Hibbs only points out that the note was not physically delivered to SLS because it remained in the custody of the Clerk of Court. The absence of supporting documentation does not refute that the transfer occurred as alleged, nor is such documentation an essential element of the alleged transfers. See JP Morgan Chase Bank, N.A., 168 So. 3d at 427, citing Maddox v. Robbert, 165 La. 694, 699, 115 So. 905, 906 (1928) (recognizing that “a note payable to order may be transferred without indorsement, and that the transfer can be proved by parol testimony”).⁹

Mindful that where doubt exists, an exception of no right of action is to be resolved in favor of the plaintiff, we find that Ms. Hibbs failed to establish that the Bank does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. See Pearce, 330 So. 3d at 1167. Thus, we find no error in the trial court's denial of Ms. Hibbs’ exception of no right of action.

Summary Judgment 10

In her next assignment of error, Ms. Hibbs contends that the trial court erred in granting the Bank's motion for summary judgment because the Bank cannot establish a prima facie case to prevail on summary judgment without producing the original note.

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. Cope v. Board of Supervisors of Louisiana State University & A&M College, 2025-0034 (La. App. 1st Cir. 8/4/25), 418 So. 3d 1035, 1038. A motion for summary judgment is properly granted if, after an opportunity for adequate discovery, the motion, memorandum, and supporting documents show 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); Cope, 418 So. 3d at 1038.

The party moving for summary judgment has the initial burden of proof. La. C.C.P. art. 966(D)(1). The movant can meet its burden by filing a motion, memorandum, and supporting documents proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3). The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection, which must be raised in a timely filed opposition or reply memorandum. La. C.C.P. art. 966(D)(2).

Nevertheless, if the movant will not bear the burden of proof at trial on the issue that is before the court on the motion, the movant's burden on the motion does not require it to negate all essential elements of the adverse party's claim, action, or defense, but rather to 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. La. C.C.P. art. 966(D)(1); Newton v. St. Tammany Fire District No. 12, 2024-0942 (La. App. 1st Cir. 2/28/25), 407 So. 3d 923, 925.

Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). In considering a motion for summary judgment, the trial court cannot make credibility determinations but must construe reasonable factual inferences in favor of the party opposing the motion, resolving all doubt in favor of the opponent. Williams v. Nautilus Insurance Company, 2025-1043 (La. App. 1st Cir. 4/17/26), __ So. 3d __, __, 2026 WL 1045165, *5.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could only reach one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Troncoso v. Point Carr Homeowners Association, 2022-0530 (La. App. 1st Cir. 1/10/23), 360 So. 3d 901, 914. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; 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. Evans v. Abubaker, Inc., 2023-00955 (La. 5/10/24), 384 So. 3d 853, 858. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Mills v. Cyntreniks Plaza, L.L.C., 2014-1115 (La. App. 1st Cir. 8/19/15), 182 So. 3d 80, 82, writ denied, 2015-1714 (La. 11/6/15), 180 So. 3d 308; Williams, __ So. 3d at __, 2026 WL 1045165 at *6.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that governs the trial court's determination of whether summary judgment is appropriate. Cope, 418 So. 3d at 1039.

Summary judgment is an appropriate procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement. First NBC Bank v. River Park Development, L.L.C., 2024-0270 (La. App. 1st Cir. 9/17/25), 421 So. 3d 284, 291. In a suit to collect on a promissory note, once the plaintiff, as holder of the note, proves the maker's signature, or the maker admits it, the holder has made out his prima facie case by mere production of the note and is entitled to recover in the absence of any further evidence. The burden then shifts to the maker to prove the existence of a triable issue of material fact and/or any affirmative defenses. Wachovia Mortgage Corporation v. Hoover, 2021-1035 (La. App. 1st Cir. 4/8/22), 342 So. 3d 1, 5, writ denied, 2022-00860 (La. 9/27/22), 347 So. 3d 156; see also Riedel v. Fenasci, 2018-0538 (La. App. 1st Cir. 12/28/18), 269 So. 3d 995, 999. Non-original documents can be used in support of a motion for summary judgment for enforcement of a promissory note, so long as the documents can be properly authenticated. First NBC Bank, 421 So. 3d at 291-292. Further, when, as here, the plaintiff is an assignee, the plaintiff must also present evidence of a chain of assignments. See DCR Mortgage 7 Sub 1, LLC v. Legends Square, LLC, 2024-0461 (La. App. 1st Cir. 11/20/24), 2024 WL 4833819, *7 (unpublished).

In support of its motion, the Bank offered a copy of the original note and mortgage and assignment of mortgage along with an affidavit of Mr. Ortega, who authenticated the loan documents and chain of assignments from Ms. Hibbs’ loan from American Home Mortgage to Wells Fargo, then from Wells Fargo to SLS, then from SLS to the Bank. Mr. Ortega further verified the itemized sums owed by Ms. Hibbs and attested that despite repeated amicable demand, the payment due for December 1, 2015, and all subsequent payments have not been made by Ms. Hibbs. Mr. Ortega attested that he reviewed and compared the certified copy of the note to the virtual image of the original note in the document database and that it was an exact copy of the original note.

The Bank further offered the testimony of Wells Fargo representative Joanne Thoma-Ball from an October 6, 2021 hearing before the trial court on an exception of no right of action by Ms. Hibbs who identified the note, verified the direct endorsement from American Home Mortgage to Wells Fargo, verified the blank or “open” endorsement on the back of the note from Wells Fargo signed by Lori K. Venegonia, an employee of Wells Fargo Bank, verified the mortgage for Ms. Hibbs’ loan and corporate assignment of mortgage from Wells Forgo to SLS. Ms. Thoma-Ball testified that the open or blank endorsement is put on the note when Wells Fargo purchases it so it can later sell the note with the endorsement already on it. Ms. Thoma-Ball further testified that Wells Fargo was no longer servicing this loan and that it had no rights to sue to enforce the note because it transferred its servicing rights to SLS.

The Bank also offered the testimony of SLS representative Lauren Haberlan, who performs servicing of mortgages, from the same hearing. Ms. Haberlan testified that SLS currently holds Ms. Hibbs’ note and that it “took over” the servicing rights from Wells Fargo pursuant to a servicing transfer from Wells Fargo, which was effectuated by the blank endorsement on the note and the assignment of mortgage. She testified that the note was transferred and delivered to SLS as part of the servicing transfer. Ms. Haberlan explained that in mortgage servicing, constructive possession of the note is “extremely everyday practice” and is a “very common practice.” She testified that notes are usually held with custodians and are in the process of being transferred to law firms or they are being held in court files. Following her testimony, the trial court held that the second endorsement on the back of the note was a blank endorsement by Wells Fargo.

As the holder of the note, we find that the Bank established a prima facie case by filing a copyof the authenticated note as evidence in support of its motion for summary judgment. See First NBC Bank, 421 So. 3d at 291-292; see also Bayview Loan Servicing, LLC v. Holden, 2023-1347 (La. App. 1st Cir. 6/7/24), 391 So. 3d 751, 760, writ denied, 2024-01032 (La. 11/14/24), 396 So. 3d 62 (Summary judgment was properly granted in favor of holder where “although the allonge was not authentic evidence of the assignment of the note to the bank, the indorsement in blank on the allonge rendered the note bearer paper, and where the note was bearer paper, authentic evidence of the transfer of the note was not required to enable the holder to foreclose by executory process. See La. R.S. 10:3-301; UMB Bank, National Association [v. Swafford, 2023-0245 (La. App. 4th Cir. 11/7/23), 377 So. 3d 347,] 353-354. Since the plaintiff became the holder of the note, it had the [right to proceed and the] ability to enforce it through executory process.”).

Ms. Hibbs’ only argument in opposition to the motion was that the Bank cannot establish a prima facie case without producing the original promissory note and thus, the burden does not shift to her. In support, Ms. Hibbs submitted an affidavit of a Deputy Clerk of Court dated February 5, 2025, who attested that the original note was still in the possession of the Livingston Parish Clerk of Court. Notably, Ms. Hibbs did not dispute the execution of the note or related mortgage documents, did not rebut the Bank's claim that she had defaulted on her payment obligations under the terms of the note, and did not offer any evidence to rebut the amounts the Bank contends are due.

As noted above, there is no evidentiary requirement that the Bank must furnish the original loan documents in this ordinary proceeding. See First NBC Bank, 421 So. 3d at 291-292 (affirming summary judgment in an ordinary proceeding in favor of holder of the note finding that by presenting an authenticated copy of the original note, it presented a prima facie case and was entitled to enforce the note),¹¹ citing Riedel, 269 So. 3d at 1000-1002 (affirming summary judgment in favor of the plaintiff who offered as exhibits a copy of the promissory note, a copy of the recorded credit deed, affidavits, and deposition testimony admitting signing the documents); Whitney Bank v. Garden Gate New Orleans, L.L.C., 2017-0362 (La. App. 5th Cir. 12/27/17), 236 So. 3d 774, 779, 884, writ denied, 2018-0174 (La. 3/23/18), 239 So. 3d 298 (affirming summary judgment in favor of a plaintiff who offered as exhibits a bank vice president affidavit, which included copies of promissory notes, guarantees, and other loan documents).

In its oral reasons for judgment, the trial court stated:

[Ms. Hibbs] has raised no affirmative defenses in this matter, [she] has raised nothing that would leave a genuine issue of material fact for trial or to show that the [Bank] could not meet its burden at trial on this particular matter. The Motion for Summary Judgment is properly supported, and the Court finds that the support is sufficient to show that there is no genuine issue of material fact, that [the] Bank is entitled to enforce the note as holder and transferee and there [are] no other defenses[.12]

After our thorough de novo review, we find that the Bank presented a prima facie case that it was entitled to enforcement of the note and that Ms. Hibbs failed to present any countervailing evidence to create a genuine issue of material fact. We find no error in the trial court's grant of summary judgment in favor of the Bank.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the above and foregoing reasons, the March 10, 2025 judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant/appellant, Monique L. Hibbs a/k/a Monique Hibbs.

AFFIRMED.

The May 12, 2006 promissory note (“the note”) at issue in this appeal was the subject of a prior lawsuit (“the Wells Fargo suit”), which was filed on January 3, 2017, and sought to enforce the note. The original promissory note was filed into the record of this case as an attachment to the Wells Fargo suit, as is required for executory process. The note was never withdrawn and remains in the Wells Fargo suit record to this day. In other words, U.S. Bank has never been in possession of the note. Therefore, I find U.S. Bank has no right of action to enforce the note.

I respectfully dissent from the portion of the majority's opinion affirming the trial court's judgment sustaining U.S. Bank Trust National Association in its capacity as Owner Trustee for VRMTG Asset Trust's motion for summary judgment. Summary judgment is an appropriate procedural device to enforce a promissory note when the defendant establishes no defense against enforcement. In a suit to collect on a promissory note, once the plaintiff, as holder of the note, proves the maker's signature, or the maker admits it, the holder has made out a prima facie case by mere production of the note. The burden then shifts to the defendant to prove the existence of a triable issue of material fact and/or any affirmative defenses. Small Town Developers II, LLC v. Cascade Logistics, LLC, 2023-1148 (La. App. 1st Cir. 4/19/24), 389 So.3d 866, 870.

In the instant case, U.S. Bank did not make out a prima face showing that it was the holder of the note as Specialized Loan Servicing, LLC did not produce the note at the inception of the instant civil proceedings. As noted by the majority, Specialized Loan Servicing, LLC filed a motion for leave to transfer the original promissory note from the dismissed Wells Fargo suit to the instant suit and the trial court granted the motion. Therefore, the record on appeal does not contain evidence that Specialized Loan Servicing, LLC was the holder of the note when it instituted the instant civil proceeding. For that reason, U.S. Bank has not demonstrated that Specialized Loan Servicing, LLC properly transferred the note to it.

Furthermore, the majority relies on improper summary judgment evidence—the transcript of the October 6, 2021 hearing—to reach its conclusion that summary judgment is proper. See La. Code Civ. P. art. 966(A)(4); AG Resource Management, LLC. v. Bunge North America, Inc., 53,417 (La. App. 2nd Cir. 3/4/20), 293 So.3d 1179, 1186. For these reasons, I must respectfully dissent in part.

FOOTNOTES

1.   “Endorse” and “Indorse” are used interchangeably throughout these proceedings and this opinion.

2.   Prior to instituting foreclosure proceedings, by correspondence dated January 15, 2016, Wells Fargo notified Ms. Hibbs that her loan was in default and that foreclosure proceedings would be initiated if she failed to pay the delinquent amount and late charges due under the terms of the note.

3.   At the hearing on the motion for summary judgment, counsel for the Bank attempted to “offer, file and introduce into evidence” all of the exhibits attached to its motion for summary judgment. We note, however, that only documents actually filed or referenced in support of or in opposition to the motion for summary judgment may be considered by the trial court on a motion for summary judgment and parties are not permitted to introduce summary judgment evidence at the hearing. See La. C.C.P. art. 966(A)(4) and (D)(2); Tillman v. Nationwide Mutual Insurance Company, 2020-0250 (La. App. 1st Cir. 2/22/21), 321 So. 3d 1017, 1022 n.5, writ denied, 2021-00429 (La. 5/25/21), 316 So. 3d 446. Accordingly, on review, we will only consider the exhibits that were filed or referenced in support of or in opposition to the motion.

4.   In her second assignment of error, Ms. Hibbs argues that the trial court erred in finding that the note bore her signature where no proof of same was submitted. As noted by the Bank, the authenticity of Ms. Hibbs’ signature was not raised or challenged by Ms. Hibbs in the underlying proceedings before the trial court.As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. BBI Architectural Services, Inc. v. Janney, 2024-0781 (La. App. 1st Cir. 3/24/26), 431 So. 3d 1212, 1224-1225, writ denied, 2026-00459 (La. 6/25/26), 434 So. 3d 173. Article 5, § 10 of the Louisiana Constitution affords courts of appeal broad supervisory jurisdiction; however, even with such broad power, this Court will not act on the merits of a claim not yet presented to and acted upon by the lower tribunal. Burniac v. Costner, 2018-1709 (La. App. 1st Cir. 5/31/19), 277 So. 3d 1204, 1210; see also Uniform Rules-Courts of Appeal, Rule 1-3. Accordingly, where this issue was not presented to the trial court, we decline to address the merits of this assignment of error.

6.   MS. Hibbs argues the civil case ledger report from the dismissed Wells Fargo suit and the affidavit of Deputy Clerk Bendily reflect that the original note is still in the Wells Fargo suit in spite of the fact that the trial court specifically ordered that the note be transferred to the instant suit.

7.   Louisiana Revised Statutes 10:3-205(a) provides in pertinent part that “[i]f an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a ‘special indorsement.’ ”

8.   The Corporate Assignment of Mortgage shows a “Date of Assignment” of May 11, 2020.

9.   In J.P. Morgan Chase Bank, this court recognized that when the subject suit is proceeding via ordinary process, the executory proceeding requirement of authentic evidence of an act of assignment is not applicable. See JP Morgan Chase Bank, N.A., 168 So. 3d at 427 n.2, citing La. C.C.P. art. 2635.

11.   In First NBC Bank, we distinguished the Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 2006-0766 (La. App. 1st Cir. 2/9/07), 959 So. 2d 914, case from this court, which held that the original loan documents must be furnished in order to establish a prima facie case, where Grevemberg involved the confirmation of a default judgment on a promissory note, not the granting of a motion for summary judgment in an ordinary proceeding. See First NBC Bank, 421 So. 3d at 292.

12.   See La. C.C.P. art. 966(C)(4)

MILLER, J.

Edwards, J. dissents w/ reason Fields, J Dissents in Part with reasons