Monday, October 19, 2015

No Duty To Adversary

An attorney for a bank that had initiated foreclosure proceedings against a homeowner was entitled to summary judgment when sued by the opposing party, according to a decision of the Louisiana Supreme Court.

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.

Holding

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, 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.

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 attorneywith 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).

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/10/an-attorney-for-a-bank-that-had-initiated-foreclosure-proceedings-against-a-homeowner-was-entitled-to-summary-judgment-when-s.html

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