### NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA 

### COURT OF APPEAL FIRST CIRCUIT 2021 CA 1456 

### WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF

STANWICH MORTGAGE LOAN TRUST A VERSUS 

### GWENDOLYN ANN DENDIGER DAVIS A/K/A GWENDOLYN ANN DENDIGER DAVIS PENNY AND CHARLES PENNY

DATE OF,JUDGMENT. 

### FJUL 2 9 2022
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT,

PARISH OF ST. TAMMANY, STATE OF LOUISIANA

NUMBER 2016- 13393, DIVISION H 

### HONORABLE ALAN A.ZAUNBRECHER,JUDGE



### Ashley L.Cutler Counsel for Plaintiff - Appellee Monroe, Louisiana. 

### Wilmington Savings Fund Society, FSB, as Trustee of Stanwich Mortgage Loan Trust A P. David Carollo Counsel for Defendants - Appellants Slidell, Louisiana Gwendolyn Ann Dendiger Davis 

### And Charles Penny

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. Disposition: APPEAL DISMISSED; REMANDED. 

# 64 f l 

# 0 fes kii'CHUTZ, J.



### In this suit to enforce a security interest, appellants - defendants, Gwendolyn 

### Ann Dendinger Davis' and Charles Penny (defendants), appeal asummaryjudgment 

## granted in favor ofappellee - plaintiff,Wilmington Savings Fund Society, FSB, as Trustee of Stanwich Mortgage Loan Trust A (FSB).

FACTS AND PROCEDURAL HISTORY 

### On November 17, 2004, defendants executed a home equity line of credit agreement in the principal amount of $50, 000.00 with Hibernia National Bank, 

### together with a mortgage on immovable property to secure the line of credit. Beginning on April 1, 2015, 

### defendants failed to make the required monthly payments. On August 15, 2016, Capital One, N.A.' filed a petition to enforce its 

### security interest (mortgage) by ordinary process. Capital One requested judgment in the unpaid principal amount of $48,248,36, plus interest as provided in the agreement, 

### and a declaration that the mortgage executed by defendants was
enforceable. 

### On January 25, 2019, Capital One filed an exparte motion to substitute FSB as party plaintiff in this matter. In its motion, Capital One averred that all of its rights under the line of credit and mortgage sought to be enforced herein had been 

### transferred to FSB by assignment. The district court signed an order on February 5, 2019, substituting FSB as party plaintiff in lieu of Capital One and ordering the caption in this matter to be changed to reflect the substitution. 

### Subsequently, FSB 

### filed a motion for summaryjudgment alleging there were no genuine issues offact and it was entitled to judgment as prayed for in the original petition. Defendants 

### opposed the motion for summaryjudgment, arguing that under La. C.C.P. art. 561,

I Ms. Davis is sometimes referred to as Gwendolyn Ann Dendinger Davis Penny. I Hibernia National Bank and Capital One, N.A.are not two separate entities. Rather, Capital One 

### asserted the name ofthe entitywas changed from HiberniaNational Bankto Capital One, N.A.on or about April 24, 2006. Pithe suit had been abandoned since no steps were taken in the prosecution of the

matter for over three years. 

### Atthe conclusion ofthe motion hearing,the districtcourtorallygranted FSBs motion for summaryjudgment. In its November24, 2020 writtenjudgment in favor of FSB and against defendants, the district court ordered that the mortgage on defendants' 

### immovable property securing the debt at issue was recognized and declared to be enforceable in accordance with law, with priority over all inferior

encumbrances. 

### Additionally, the district court ordered the defendants to pay the 

### following amounts to FSB: ( 1) principal of $ 48,248.36, with interest of $ 7, 565.41 

### through July 29, 2020, and thereon at variable rates, until paid; ( 

### 2) the following 

### amounts accrued through July 29, 2020: advances of $ 3,914.57 for the payment of taxes and insurance, inspections of $ 346,00, previous servicer fees of $ 796.36, and 

### any such additional amounts accruing thereafter through the date of sale; ( 3) all 

### expenses incurred in enforcing the note and mortgage including reasonable 

### attorney's fees as provided for by the note and mortgage; and (4) all taw charges, costs, fees, and expenses including sheriffs commission. 

### Defendants now appeal, arguing in asingle assignment oferrorthatthe district court erred in failing to find this matter was abandoned within the meaning of La. C. C.P. art. 561. DISCUSSION 

### Appellate courts have a duty to examine their subject matterjurisdiction and to determine sua sponte whether such subject matterjurisdiction exists, even when 

### the issue is not raised by the litigants. A valid judgment must be precise, definite,

and certain. 

### Advanced Leveling & 

### Concrete Sols. v. Lathan Company, Inc., 17- 

### 1250 (La. App. 1st Cir. 12/20/18), 268 So.3d 1044, 1046. 

### In addition to naming the 

### parties in favor of and against whom the ruling is ordered, a final judgment must state the reliefthat is granted or denied. Moreover, the specific reliefgranted should
9be determinable 

### from the judgment without reference to extrinsic sources.



### Advanced Leveling & Concrete Solutions, 268 So.3d at 1046. 

### To be legally enforceable as a validjudgment, a third person should be able to determine from the 

### judgment the specific nature and precise amount ofdamages owed without reference to other documents. Wachovia Mortgage Corporation v. Hoover, 19- 1520 ( La. 

### App. Ist Cir.9/21/20), 314 So.3d 42, 45; Id. In this matter, the judgment awards FSB $48,248.36 for the unpaid principal 

### owed by defendants, as well as specific amounts accrued through July29, 2020, for the payment oftaxes and insurance ($3, 914. 57), inspections ($346. 00) and previous servicer fees ($ 796. 36). 

### Additionally, the judgment also awards interest on the principal amount of $

48,248.36 from July 30, 2020, until paid " at variable rates," any such additional amounts accruing thereafter through the date of sale," " all 

### expenses incurred in enforcing the note and mortgage," and " all ... fees" without 

### delineating any specific amounts or interest rates to be applied. These awards for interest " at variable rates, 11 " any such additional amounts," " all expenses incurred,"

and " all ... fees" are not precise, definite, or certain. See U.S. Bank National 

### Association as Trusteefor RFMSI 200557 v. Dumas, 21- 0585 ( La. App. 1st Cir, 12/22/21), _ So.3d _, 2021 WL 6069038, at * 3 ( ajudgment that awards the costs of additional expenses yet to be calculated is not a final judgment subject to appellate jurisdiction); Wachovia Mortgage Corporation v. Hoover, 314 So.3d at 45 ( 

### the entire judgment was rendered non - appealable by indefinite awards for additional amounts accruing thereafter," " all expenses," and. "fees" that could not be determined from the judgment). The precise amount of the awards or the appliable interest rates cannot be determined from the judgment herein without reference to extrinsic sources. Ajudgment that awards a sum to which the costs of

additional expenses - yet to be fixed - must be added is not a final appealable judgment. See Id. 

### Accordingly, the judgment in the instant case is not a final

### judgment over which this court has appellate jurisdiction. Further, the judgment



## does notfall within anycategoryofpartialjudgments immediately appealable under La. C.C.P. art. 1915(A) 

## and also lacks a certification that it is immediately appealable pursuant to La. C. C. P. art. 1915( B).3 Thus, there is no final appealable judgment before us, and this court lacks subject matterjurisdiction.' CONCLUSION Forthese reasons, the defendants' appeal ofthe district court' s November 24, 2020judgment is dismissed, and this matter is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal are assessed to 

### defendants, Gwendolyn Ann Dendinger Davis and Charles Penny.

3 On March 11, 2022, this court issued an interim orderremandingthis matterto the district court for the limited purpose of inviting the district court to advise whether the judgment at issue warranted a La. C.C.P. art. 1915(13) designation, inviting the district courtto sign ajudgment with a La. C.C.P. art. 1915( B) designation, and/or inviting the district court to provide a per curiam 

### giving reasons for its determination in the event the district court signed ajudgment with a La. C. C. P. art. 1915( B) designation. In response to the interim order, the district court issued a per curiam on April 1, 2022, stating,withoutfurther reasons, that it had "determined thatthejudgment does not warrant or need the [ La. C.C.P.] article 1915( B) designation." Whilethis court has discretion to convert an appeal to an application forsupervisory writs, it may 

### do so only ifthe appeal would have been timely had it originally been filed as a supervisory writ application within the thirty - day period allowed under Uniform Rules --Courts ofAppeal, Rules 4- 2 and 4-3. U.S. Batik National Association as Trusteefor RFMSI 200557,2021 WL 6069038, at * 4. In this case, notice of the November 24, 2020 judgment was mailed to the parties on December 3, 2020, and the motion for appeal was filed on January 27, 2021. Because the motion 

### for appeal was not filed within thirty days ofthe notice ofjudgment, it cannot be considered a 

### timelyfiled application for supervisory writs under Uniform Rules -- Courts ofAppeal, Rule 4--3. Accordingly,we decline to convertthis appeal toan application for supervisory writs.