                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 14th day of October, 2015, are as follows:




PER CURIAMS:


2015-C -0530      THE BANK OF NEW YORK MELLON, ET AL. v. WHITNEY BLAINE SMITH, ET
                  UX. (Parish of Grant)

                  For the reasons assigned, the judgment of the court of appeal is
                  reversed.   The judgment of the district court granting summary
                  judgment in favor of George Dean, Jr. and Dean Morris, L.L.P. is
                  reinstated.




                  .
10/14/15

                            SUPREME COURT OF LOUISIANA

                                         NO. 2015-C-0530

                    THE BANK OF NEW YORK MELLON, ET AL.

                                              VERSUS

                            WHITNEY BLAINE SMITH, ET UX.

            ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                    THIRD CIRCUIT, PARISH OF GRANT

PER CURIAM

        We granted certiorari to determine whether private attorneys for a lender which

improperly seized a home are entitled to judgment as a matter of law on the ground

their actions did not violate 42 U.S.C. § 1983. For the reasons that follow, we find

the district court properly granted summary judgment, and the court of appeal erred

in reversing that judgment.



                        FACTS AND PROCEDURAL HISTORY

        Whitney Blaine Smith and Pamela Smith entered into a residential mortgage

contract with Saxon Mortgage Services (“Saxon”), which was secured with a

promissory note on the Smiths’ home in Grant Parish. The Smiths later failed to

make their installment payments beginning June 1, 2004. Two months later, Mr.

Smith died in an automobile accident.1

        On November 4, 2004, J.P. Morgan Chase Bank (“Chase”), as trustee for

Saxon, filed suit for executory process against the Smiths, seeking to deliver a notice

of seizure to Ms. Smith. The petition alleged it attached certified copies of the

promissory note and mortgage in support of executory process.                             Chase was


        1
          Ms. Smith takes the position that there was a life insurance policy which should have paid
off the loan upon Mr. Smith’s death. This issue is not before the court, but is the subject of litigation
in federal court.
represented by attorney George Dean, Jr. and the law firm Dean Morris, L.L.P. in the

executory proceedings.

      On November 10, 2004, Dean Morris, L.L.P. received a copy of the original

promissory note and mortgage. The promissory note contained an unsigned stamp

stating “PAID AND CANCELLED JP MORGAN CHASE BANK” and includes a

handwritten “X” over the stamp, with the date November 8, 2004.

      On November 11, 2004, Ms. Smith, through her counsel, sent a letter via

certified mail to Kathy Larson, a Saxon employee, indicating the executory

foreclosure was improperly supported.                 On November 18, 2004, Ms. Larson

forwarded copies of the November 11, 2004 letter to an attorney at Dean Morris,

L.L.P., advising “[a]s you can see, he [Ms. Smith’s attorney] believes that Saxon

cannot proceed by executory process. . . .” However, Dean Morris, L.L.P. did not

stop the seizure.

      On December 8, 2004, the Grant Parish Sheriff’s Office delivered a notice of

seizure to Ms. Smith. The seizure under executory process was constructive,

allowing the debtor thirty days to defend against the actual seizure of the

collateralized property.

      Ms. Smith, fearing that she would be evicted from her home over the holidays,

moved her children out of the house and sought an injunction to stop the seizure by

executory process. In support, she argued the foreclosure documents (i.e., the

mortgage and promissory note) were not in authentic form pursuant to the

requirements set forth in La. Code Civ. P. art. 2635(A)(2)2 because they were

      2
          La. Code Civ. P. art. 2635 provides:

                A. In order for a plaintiff to prove his right to use executory process
                to enforce the mortgage, security agreement, or privilege, it is
                necessary only for the plaintiff to submit with his petition authentic
                evidence of:
                                                                                          (continued...)

                                                  2
executed in front of only one witness. Ms. Smith also filed a reconventional and third

party demands against Chase, alleging wrongful seizure, conversion, and federal due

process violations pursuant to 42 U.S.C. § 1983 (hereinafter referred to as “section

1983”).3

      The district court granted Ms. Smith’s request for a preliminary injunction,

reserved her other claims, and ordered Chase to convert the matter to an ordinary

proceeding. Chase converted the matter to an ordinary proceeding and Ms. Smith re-

filed her reconventional and third party demands against Chase. The district court

ultimately dismissed the entire suit.

      The Bank of New York Mellon (“Mellon”) later filed the instant suit against

Ms. Smith, seeking to enforce a note and mortgage by ordinary proceeding. Ms.

Smith answered Mellon's suit, asserting an exception of no right of action and a

reconventional demand against Mellon, and asserting third party demands against



      2
          (...continued)

                 (1) The note, bond, or other instrument evidencing the obligation
                 secured by the mortgage, security agreement, or privilege.

                 (2) The authentic act of mortgage or privilege on immovable property
                 importing a confession of judgment.

                 (3) The act of mortgage or privilege on movable property importing
                 a confession of judgment whether by authentic act or by private
                 signature duly acknowledged.

                 B. This requirement of authentic evidence is necessary only in those
                 cases, and to the extent, provided by law. A variance between the
                 recitals of the note and of the mortgage or security agreement
                 regarding the obligation to pay attorney's fees shall not preclude the
                 use of executory process.
      3
          42 U.S.C. §1983 provides in pertinent part:

                 Every person who, under color of any statute, ordinance, regulation,
                 custom, or usage of any State or Territory or the District of Columbia,
                 subjects or causes to be subjected, any citizen of the United States or
                 other person within the jurisdiction thereof to the deprivation of any
                 rights, privileges, or immunities secured by the Constitution and laws,
                 shall be liable to the party injured in an action at law, suit in equity,
                 or other proper proceeding for redress . . . .

                                                    3
Chase and Dean Morris, L.L.P. Mellon, Chase, and Dean Morris, L.L.P. filed

numerous exceptions to Ms. Smith's reconventional and third party demands.

Although the district court granted these exceptions, the court of appeal reversed,

finding the facts alleged by Ms. Smith were sufficient to state a cause of action under

state law and under section 1983 for the alleged wrongful seizure of Ms. Smith's

home. Specifically, the court of appeal found Ms. Smith's allegations were sufficient

to establish that the seizing creditor and its counsel, Dean Morris, L.L.P., were state

actors subject to liability for the seizure of Smith's home under section 1983. Bank

of New York Mellon v. Smith, 11-60 (La. App. 3 Cir. 6/29/11), 71 So.3d 1034, writ

denied, 11-2080 (La. 11/18/11), 75 So.3d 462.

      On remand, Ms. Smith amended her incidental demands to allege the legal

insufficiency of the confession of judgment language in the mortgage as a basis of

liability. She also amended her incidental demands to assert a claim under section

1983 against attorney George Dean, Jr.

      Subsequently, Ms. Smith reached a settlement with Mellon and Chase, and

these parties were dismissed. However, she reserved her claims against Dean Morris,

L.L.P. and George Dean, Jr.

      Thereafter, Dean Morris, L.L.P. and Mr. Dean (collectively referred to

hereinafter as “Dean Morris”) filed a motion for summary judgment, arguing Ms.

Smith cannot establish a claim under section 1983 because she failed to challenge the

constitutionality of a state statute or a claim for the statute’s erroneous application.

Dean Morris maintained the misapplication of a constitutional statute does not

support a cause of action under section 1983.

      The district court granted the motion for summary judgment and dismissed Ms.

Smith’s claims for wrongful seizure, conversion, and section 1983 violations. In



                                           4
written reasons for judgment, the district court acknowledged that Chase failed to

obtain two witnesses when executing the promissory note and mortgage, but noted

this failure is not attributable to Dean Morris for the purposes of a section 1983 claim:

                    The root of the problem arising from the original
             “Petition to Enforce Security Interest by Executory
             Process” filed November 4, 2004, in Docket No. 16,928.
             Attached to the petition was a copy of the note executed
             October 18, 1999 and the note was certified to be a true
             and correct copy of the original by Gary K. Hayes, the
             notary before whom the original note was signed [Exhibit
             A of the suit record]. Also attached to the original Petition
             for Executory Process was a certified copy of the mortgage
             as exhibit B. This certificate was executed by Deputy
             Clerk and Ex-officio Recorder B. Woodard on October 26,
             2004 over the title, J. ElRay Lemoine. Also attached was
             a document marked “Notarial Endorsement and
             Assignment of Mortgage” #64030, Bk 213, pg 497 being
             “Exhibit C” and this was certified to be a true and correct
             copy on the 26th day of October 2004 over the title J. ElRay
             Lemoine, Deputy Clerk and Ex-Officio Recorder, B.
             Woodard.

                    A “Petition for Preliminary Injunction” was filed by
             Pamela Deann Lacour Smith and asserted the mortgage
             dated October 18, 1999 was executed before Gary K.
             Hayes, Notary Public, and a single witness. The said
             petition stated the mortgage was not in authentic form and
             did not satisfy the requirement of authentic evidence as
             required by Louisiana Code of Civil Procedure Article
             2635(A)(2). The hearing on the preliminary injunction was
             conducted on April 4, 2005. The transcript of this hearing
             is identified as Exhibit 10 in the record of the proceeding
             Docket # 20,282, Volume III and the evidence presented
             related only to the presence or absence of the witnesses.
             The Court stated “Executory process is an extraordinary
             remedy and requires us to follow everything, dot every “I”
             and cross every “T.” And it just wasn’t done in this case.”
             The District Judge found the mortgage was not in authentic
             form due to the absence of witnesses during the execution
             of the mortgage. This Court finds the physical absence of
             a witness in the execution of the act of mortgage is a latent
             defect not changeable to the attorney petitioning for
             executory process.

      Moreover, the district court explained that while Ms. Smith may not have

received the correct notice under the mortgage provisions, she still received adequate


                                           5
notice of the executory proceedings against her for due process purposes:

                   The failure to provide the required notice pursuant
            to the mortgage provisions may serve as a basis to claim
            misapplication of executory process. The record does not
            contain any notice of breach required by “Section 21.
            Acceleration, Remedies.”          This notice is deemed
            mandatory by virtue of the “shall” language. No written
            notice of breach was filed to satisfy the requirement of
            LSA-C.C.P. art. 2635(3). However in original petition for
            writ of seizure and sale stated in paragraph 5 that notice of
            breach was mailed prior to acceleration. Lack of notice of
            breach was cured by personal notice of executory process
            by sheriff.

                   The original petition for executory process had all of
            the proper documents except no other instruments
            necessary to complete proof of plaintiff’s right to use
            executory process, LSA-C.C.P. 2635(3). The sheriff’s
            return of service of the notice of executory process reflects
            that Pamela Dean Lacour Smith was notified on December
            8, 2004, that “a petition for executory process, a certified
            copy of which accompanies this notice has been filed
            against you.” This service of process does not reflect any
            seizure of the property. However, a return “Notice of
            Seizure” was filed to Grant Parish Clerk of Court. This
            notice reflected a Clerk’s filing date of December 6, 2004
            P.1:53 and was recorded at instrument no. 136,504, book
            385, page 803, book 278, page 153. This notice states
            “Notice is hereby given that I am this day seizing . . .” The
            Court finds as a fact Pamela Smith was personally served
            on December 8, 2004, with notice of the petition for
            executory process documents. The record does not reflect
            a notice of seizure was served on her. The Court finds the
            notice of the proceeding served upon her constituted due
            process notice whereby she had the opportunity to contest
            the proceeding which she did successfully obtain an
            injunction. The Bank of Mellon filed on July 30, 2009, a
            petition to enforce security interest by ordinary process,
            docketed as Civil Suit No. 20,282. The petition stated the
            proceeding shall be in rem and shall not seek personal
            liability. The note copy had a stamp to wit-paid and
            cancelled, J.P. Morgan Chase Bank, _____, Mary E. Kurtz,
            Assistant Treasurer, but was not signed. It had a without
            recourse assignment, signed to Chase Bank of Texas. This
            note copy was substantially different than the note copied
            and attached to the original executory process petition. A
            misplaced or lost note issue was litigated by the parties.

      Finally, the district court found Dean Morris did not act recklessly in the filing


                                           6
the executory proceeding:

             Louisiana law has recognized that an attorney owes no
             duty to a non-client third party absent a showing of actual
             malice or specific intent to harm. Pamela Smith claims
             Dean Morris was reckless. There is no factual basis to
             conclude the attorneys were acting with specific malice
             toward the Smiths or with any specific intent to harm.
             Even if it is a fact that no notice of breach was sent, the
             failure does not support an inference of actual malice or
             specific intent to harm. No sale or conversion took place,
             only notice of intended sale. This fact is not in dispute.
             The notice of breach merely informs the owner that a claim
             of breach of the mortgage obligation has occurred and the
             mortgage will be enforced.

                                         ***

                    Pamela Smith submitted the recent judgment of the
             federal court in Willie Lionel Key, et al vs. Dean Morris,
             LLP, et al, Civil Action No. 12-49-FJP-SCR. The facts
             involved in the Keys case reflect that the Keys never
             received notice of any kind as to the pending sheriff’s sale
             which they contended would have afforded them an
             opportunity to defend their property interest. The property
             was under a judicial mortgage and it was sold without a
             notice and the property owners were divested of their
             property interest without any opportunity for a hearing to
             contest and/or object to the sale. In the instant case, proper
             notice of seizure was provided and Pamela Smith was
             successful in enjoining the sale and the matter was
             converted to an ordinary proceeding for trial on the merits.
             In the Keys case, the property was seized and sold. The
             Court stated “clearly the seizure and sale occurred without
             the required notice to plaintiffs.”

      Ms. Smith appealed, and the court of appeal reversed on appeal. Bank of New

York Mellon v. Smith, 2014-924 (La. App. 3 Cir. 2/11/15), 159 So.3d 108. In its

opinion, the court of appeal found there were “genuine issues of material fact in the

record before us as to whether Dean Morris intentionally took measures which

resulted in an invasion of the plaintiff’s property interests, despite being put on notice

by Smith's attorneys that executory process foreclosure was improper.” Id. at pp. 15-

16, 159 So.3d at 1099-1100.



                                            7
      Upon application of Dean Morris, we granted certiorari to review the

correctness of this decision. Bank of New York Mellon v. Smith, 2015-0530 (La.

6/5/15), ___ So.3d ___.



                                    DISCUSSION

      A motion for summary judgment is a procedural device used when there is no

genuine issue of material fact for all or part of the relief prayed for by a litigant.

Duncan v. U.S.A.A. Ins. Co., 06-363 p. 3 (La.11/29/06), 950 So.2d 544, 546, see La.

Code Civ. P. art. 966. A summary judgment is reviewed on appeal de novo, with the

appellate court using the same criteria that govern the district court's determination

of whether summary judgment is appropriate; i.e., whether there is any genuine issue

of material fact, and whether the movant is entitled to judgment as a matter of law.

Wright v. Louisiana Power & Light, 06-1181, p. 17 (La.3/9/07), 951 So.2d 1058,

1070; King v. Parish National Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540,

545; Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

      To state a claim under section 1983, a plaintiff must allege the violation of a

right secured by the Constitution and laws of the United States and must show that

the alleged deprivation was committed by a person acting under color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 imposes liability for violation

of rights protected by the Constitution, not for violations of duties arising out of tort

law. Baker v. McCollan, 443 U.S. 137, 146 (1979); Patterson v. Allain, 12-1365, p.

4 (La. App. 1 Cir. 4/26/13), 116 So.3d 732, 735.

      In Lugar v. Edmonston Oil Co., 457 U.S. 922 (1982), the United States

Supreme Court explained that under certain circumstances, a private party can be

characterized as a state actor for purposes of section 1983 if the private party jointly



                                           8
participates with state officials in the seizure of the disputed property. However, the

Court made it clear that mere private misuse of a state statute does not fall within the

scope of conduct which can be attributed to the State:

               While private misuse of a state statute does not describe
               conduct that can be attributed to the State, the
               procedural scheme created by the statute obviously is
               the product of state action. This is subject to
               constitutional restraints and properly may be addressed in
               a § 1983 action, if the second element of the state-action
               requirement is met as well. As is clear from the discussion
               in Part II, we have consistently held that a private party's
               joint participation with state officials in the seizure of
               disputed property is sufficient to characterize that party as
               a "state actor" for purposes of the Fourteenth Amendment.

                                                ***

               In summary, petitioner was deprived of his property
               through state action; respondents were, therefore, acting
               under color of state law in participating in that deprivation.
               Petitioner did present a valid cause of action under § 1983
               insofar as he challenged the constitutionality of the
               Virginia statute; he did not insofar as he alleged only
               misuse or abuse of the statute.

               Id. at 941-942 [emphasis added].

       It is significant that in Lugar, the petitioner challenged the state statute as

procedurally defective under the Fourteenth Amendment. By contrast, the instant

claim suit does not involve a constitutional challenge to the validity of a state statute.

Indeed, Ms. Smith concedes in her brief to this court that she is not attacking the

constitutionality of the executory process provisions, but is instead alleging abuse or

misuse of the seizure provisions which resulted in an unconstitutional seizure of her

property.4




       4
          At page ten of her brief, Ms. Smith asserts she “can allege a misuse or abuse of a seizure
statute and refrain from challenging the constitutionality of that statute without pleading herself out
of court.”

                                                  9
      In Buckner v. Carmack, 272 So.2d 326, 331 (La. 1973), we upheld the

constitutionality of the Louisiana scheme of executory process, explaining “the debtor

has ample opportunity under our Code of Civil Procedure to assert any defenses and

objections that he may have both before and after the seizure, whether it be

constructive or actual.” Id. at. 331. Similarly, in Mitchell v. W.T. Grant Co., 416

U.S. 600 (1982), the United States Supreme Court rejected a procedural challenge to

Louisiana's pre-hearing sequestration process, both facially and as applied, because

judicial intervention is required before the property is sequestered and the debtor is

provided the opportunity for a hearing before final deprivation of his property.

      In the instant case, the district court acknowledged the failure to provide the

required notice pursuant to the mortgage provisions may serve as a basis to claim

misapplication of executory process mortgage. Nonetheless, the court found it was

undisputed that Ms. Smith was personally served on December 8, 2004 with notice

of the petition for executory process documents.

      Under these circumstances, we find no unconstitutional seizure of Ms. Smith’s

property occurred. Rather, she was given sufficient opportunity to contest the actual

seizure of her property. This conclusion is supported by the fact that Ms. Smith

successfully obtain an injunction to prevent the seizure of her property.

      Ms. Smith contends Dean Morris acted recklessly in proceeding with the

executory process after she sent a letter to Saxon (which was ultimately forwarded to

Dean Morris) advising that the executory foreclosure was not properly supported. We

acknowledge the mortgage was not in authentic form due to the absence of witnesses

during the execution of the mortgage. However, as explained by the district court,




                                         10
the physical absence of a witness in the execution of the act of mortgage is a latent

defect which is not chargeable to the attorney petitioning for executory process.5

       Louisiana subscribes to the traditional, majority view that an attorney does not

owe a legal duty to his client's adversary when acting on his client's behalf. Penalber

v. Blount, 550 So.2d 577, 581 (La. 1989). A non-client, therefore, generally cannot

hold his adversary's attorney personally liable for either malpractice or negligent

breach of a professional obligation. Id. However, intentionally tortious actions,

ostensibly performed for a client's benefit, will not shroud an attorney with immunity.

Id.

       There is no evidence Dean Morris acted with specific intent to harm Ms. Smith.

At most, its actions were negligent. Under the clear language of Penalber, such

negligence is not sufficient to make an attorney liable to a non-client such as Ms.

Smith.

       In summary, we conclude Ms. Smith has failed to produce any evidence

supporting her conclusion that Dean Morris violated her constitutional rights in

violation of section 1983. At most, Ms. Smith has shown Dean Morris misused the

executory process provisions. Such allegations are insufficient to support an action

against private attorneys under the parameters set forth in Lugar v. Edmonston Oil

Co., 457 U.S. 922 (1982).




       5
         See La. Civ. Code art. 1835 (“An authentic act constitutes full proof of the agreement it
contains, as against the parties, their heirs, and successors by universal or particular title.”). An
authentic act is clothed with a presumption of genuineness.” DiVincenti v. McIntyre, 611 So.2d 140,
141 (La.App. 1 Cir. 1992), writ denied, 614 So.2d 1264 (La. 1993), citing Perry v. Akin, 174 La.
472, 141 So. 32 (1932). It was not until after the executory process suit was filed that the mortgage
was determined not to be in authentic form because of a deficiency not obvious on its face. Thus,
when the executory process suit was filed the mortgage, as an authentic act, was presumed to valid.
As soon as its invalidity was established evidentially, the constructive seizure was terminated.

                                                 11
      The district court was correct in granting summary judgment in favor of Dean

Morris. Accordingly, we must reverse the judgment of the court of appeal and

reinstate the judgment of the district court.




                                      DECREE

      For the reasons assigned, the judgment of the court of appeal is reversed. The

judgment of the district court granting summary judgment in favor of George Dean,

Jr. and Dean Morris, L.L.P. is reinstated.




                                          12
