Guillory v. Carrington Mortgage Services LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JENNIFER GUILLORY

CIVIL ACTION

VERSUS

NO. 22-192-JWD-SDJ

CARRINGTON MORTGAGE

SERVICES, LLC

RULING AND ORDER

This matter comes before the Court on two motions: (1) the Motion to for [sic] Summary

Judgment (Doc. 39) (“Def. MSJ”) filed by Defendant, Carrington Mortgage Services, LLC,

(“Carrington” or “Defendant”), and (2) Plaintiff’s Motion for Partial Summary Judgment (Doc.

40) (“Pl. MPSJ”) filed by Jennifer Guillory (“Guillory” or “Plaintiff”). Both motions are opposed,

(Docs. 42, 45), and each party filed a reply, (Docs. 46, 48). Oral argument is not necessary. The

Court has carefully considered the law, the facts in the record, and the arguments and submissions

of the parties and is prepared to rule. For the following reasons, the Pl. MPSJ is denied, and Def.

MSJ is granted in part and denied in part. More specifically, Plaintiff’s claims for breach of an

implied contract, for breach of fiduciary duty, and for unjust enrichment will be dismissed. But,

Plaintiff’s other claims (for breach of contract and for conversion) will survive to trial.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Guillory owned certain property in Lake Charles, Louisiana (the “Property”). (See Def.’s

Statement of Undisputed Material Facts (“DSUMF”) ¶ 1, Doc. 39-2; Pl.’s Resp. to [DSUMF]

(“PRSUMF”) ¶ 1, Doc. 42-1; Russell Decl. ¶ 6, Doc. 39-3.)1 The Property was damaged by

Hurricane Laura. (DSUMF ¶ 9, Doc. 39-2.)

Before that, Guillory had executed a Promissory Note secured by a Mortgage on the

Property. (DSUMF ¶¶ 1–3, Doc. 39-2.) Carrington eventually became the Holder of the Note.

(DSUMF ¶¶ 4–5, Doc. 39-2; Russell Decl. ¶ 5, Doc. 39-3.)

Under the Mortgage, any insurance proceeds had to be applied to the restoration or repair

of the Property, if restoration was economically feasible. (DSUMF ¶ 6, Doc. 39-2.) Further, the

Mortgage provided the following, which is at the heart of this dispute:

During such repair and restoration period, [Carrington] shall have

the right to hold such insurance proceeds until [Carrington] has had

an opportunity to inspect such Property to ensure the work has been

completed to [Carrington’s] satisfaction, provided that such

inspection shall be undertaken promptly. Lender may disburse

proceeds for the repairs and restoration in a single payment or in a

series of progress payments as the work is completed.

(Id. (emphasis added).)

The central issue in this case is whether Carrington undertook the inspections “promptly.”

Plaintiff maintains that it did not. Specifically, for reasons discussed in more detail below, Plaintiff

contends that Carrington failed to “promptly” conduct the inspections and distribute the insurance

proceeds by waiting, inter alia, (a) for most inspections, between two and four weeks between

when Plaintiff requested the inspection and when Carrington scheduled the inspection; (b) for the

final inspection, between 65 and 94 days; and (c) nearly two years from the hurricane to make the

final payment.

1 When the DSUMF is cited alone, then that fact has either been admitted in the PRSUMF or been qualified or denied

in such a way as to have it be deemed admitted as not properly controverted. See M.D. La. Civ. R. 56(c), (f).

As a result, Plaintiff brings claims for (1) breach of an express and implied contract, (2)

breach of fiduciary duty, (3) conversion, and (4) unjust enrichment. (Doc. 15 at 6–10.) Def. MSJ

seeks dismissal of each of these claims. (Doc. 39.)

Pl. MPSJ, on the other hand, deals with a discrete part of Plaintiff’s breach of contract

claim. (See Doc. 40.) Specifically, Guillory received a Claims Procedures Packet, which said:

How are insurance funds released? . . .

Claims greater than $40,000:

• Upon receipt of required documents (refer to Loss Draft

Checklist), we will issue an initial disbursement payable to

you and your contractor equal to the greater of $40,000, 33%

of the insurance loss proceeds, or the amount by which the

claim funds exceed the payoff amount of your loan.

• Subsequent disbursements will be issued based upon the

progress of repair work as determined by a property

inspection.

(Doc. 40-5 at 3.) As will be more fully discussed below, Plaintiff maintains that Defendant

breached its express and implied contractual duties by receiving the required documents but not

making the initial disbursement of the greater of $40,000.00 or 33% of the insurance loss proceeds.

(Doc. 40 at 1.)

II. SUMMARY JUDGMENT STANDARDS

A. Rule 56 Standard Generally

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . .

. [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)

(internal citations omitted). The non-mover’s burden is not satisfied by “conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted).

Additionally, “[w]hen evidence exists in the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion for summary judgment, that evidence is not

properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (citing

Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins,

Inc., 953 F.2d 909, 916 (5th Cir. 1992)). “Rule 56 does not impose upon the district court a duty

to sift through the record in search of evidence to support a party's opposition to summary

judgment.” Id. (citing, inter alia, Ragas, 136 F.3d at 458). See also Nissho–Iwai Am. Corp. v.

Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case .

. . be searched and found bereft of a genuine issue of material fact before summary judgment may

be properly entered”); cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are

not like pigs, hunting for truffles buried in briefs.”).

Ultimately, “where the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). As a general rule:

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a

reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations omitted).

But, this matter is proceeding to a bench trial, so the Court has more flexibility and

discretion in deciding these motions. “Ordinarily, ‘[c]redibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences are jury functions, not those of a judge.’ ”

Fleming v. Bayou Steel BD Holdings II L.L.C., 83 F.4th 278, 293 (5th Cir. 2023) (first quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); and then citing Guzman v. Allstate

Assurance Co., 18 F.4th 157 (5th Cir. 2021) (At summary judgment, the court usually may not

invade the province of the jury by “evaluat[ing] the credibility of witnesses, weigh[ing] the

evidence, or resolv[ing] factual disputes.”) (citations omitted))). “But in a bench trial, the judge

acts as ‘trier of fact’ in place of the jury. Id. (quoting In re Placid Oil Co., 932 F.2d 394, 398 (5th

Cir. 1991)). “In view of that, ‘the district court has somewhat greater discretion to consider what

weight it will accord the evidence’ when considering summary judgment.” Id. (quoting Placid Oil,

932 F.2d at 397). Granted, “[a]s always, a district court must be aware that assessments of

credibility come into sharper focus once live witnesses are heard[.]” Placid Oil, 932 F.2d at 398.

But, “even at the summary judgment stage a judge in a bench trial has the limited discretion to

decide that the same evidence, presented to him or her as trier of fact in a plenary trial, could not

possibly lead to a different result.’ ” Fleming, 83 F.4th at 293–94 (quoting Placid Oil, 932 F.2d at

398). “And ‘the court may conclude on the basis of the affidavits, depositions, and stipulations

before it, that there are no genuine issues of material fact, even though decision may depend on

inferences to be drawn from what has been incontrovertibly proved.’ ” Id. at 294 (quoting Placid

Oil, 932 F.2d at 397 (emphasis omitted).

Also important here, “if the movant bears the burden of proof on an issue, either because

he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond

peradventure [(that is, beyond doubt)] all of the essential elements of the claim or defense to

warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986);

peradventure, Merriam-Webster's Dictionary, https://www.merriam-

webster.com/dictionary/peradventure (last visited Feb. 14, 2024). See also Universal Sav. Ass'n v.

McConnell, 14 F.3d 52 (5th Cir. 1993) (unreported) (“Where the summary judgment movant bears

the burden of proof at trial, the summary judgment evidence must affirmatively establish the

movant's entitlement to prevail as a matter of law.”). That is,

In contrast, if the movant bears the burden of proof on a claim at

trial, then its burden of production is greater. It must lay out the

elements of its claim, citing the facts it believes satisfies those

elements, and demonstrating why the record is so one-sided as to

rule out the prospect of the nonmovant prevailing. If the movant fails

to make that initial showing, the court must deny the motion, even

if the opposing party has not introduced contradictory evidence in

response.

10A Mary Kay Kane, Federal Practice and Procedure (Wright & Miller) § 2727.1 (4th ed. 2022).

See also Imani v. City of Baton Rouge, 614 F. Supp. 3d 306, 334–35 (M.D. La. 2022) (deGravelles,

J.) (same) (quoting Kane, § 2727.1, supra).

Additionally, “cross-motions [for summary judgment] must be considered separately and

should not be interpreted necessarily to mean that judgment should be entered on one of them[.]”

10A Mary Kay Kane, Federal Practice and Procedure (Wright & Miller) § 2720 (4th ed. 2022).

This is because “each party, as a movant for summary judgment, bears the burden of establishing

that no genuine dispute of material fact exists and that the movant is entitled to a judgment as a

matter of law.” Id.

The fact that one party fails to satisfy that burden on his own Rule

56 motion does not automatically indicate that the opposing party

has satisfied its burden and should be granted summary judgment on

the other motion. The court must rule on each party's motion on an

individual and separate basis, determining, for each side, whether a

judgment may be entered in accordance with the Rule 56 standard.

Both motions must be denied if the court finds that there is a genuine

dispute of material fact. But if there is no genuine dispute and one

or the other party is entitled to prevail as a matter of law, the court

will render judgment.

Id. See also Imani, 614 F. Supp. 3d at 335 (same) (quoting Kane, § 2720, supra)).

B. Evidentiary Standards for Summary Judgment Motions

Plaintiff objects on several occasions that DSUMF is deficient because it fails to provide a

pinpoint cite in violation of this Court’s Local Rule 56. (Doc. 42 at 2–3.) Defendant, on the other

hand, objects to many of Plaintiff’s exhibits on the grounds that they are not authenticated and are

otherwise hearsay. (Doc. 46 at 1–2.) Consequently, before turning to the merits of these motions,

the Court will address these objections.

Local Civil Rule 56 requires that a motion for summary judgment “be supported by a

separate, short, and concise statement of material facts, each set[ting] forth in separately numbered

paragraphs, as to which the moving party contends there is no genuine issue of material fact to be

tried.” M.D. La. Civ. R. 56(b)(1). A party opposing the motion shall submit its own statement

which must “admit, deny or qualify the facts by reference to each numbered paragraph of the

moving party’s statement of material facts and unless a fact is admitted, shall support each denial

or qualification by a record citation as required by this rule.” Id. R. 56(c).

Facts contained in a supporting or opposing statement of material

facts, if supported by record citations as required by this rule, shall

be deemed admitted unless properly controverted. An assertion of

fact set forth in a statement of material facts shall be followed by a

citation to the specific page or paragraph of identified record

material supporting the assertion. The court may disregard any

statement of fact not supported by a specific citation to record

material properly considered on summary judgment.

Id. R. 56(f). Thus, Defendant’s failure to cite to the specific page or paragraph number in its

evidence is a technical violation of this local rule and the general standards articulated above

governing Federal Rule of Civil Procedure 56. See Malacara, 353 F.3d at 405; Ragas 136 F.3d at

458; Kline, 845 F.2d at 1307; Dunkel, 927 F.2d at 956.

However, even where a party fails to properly controvert a fact in an opposing statement

of material fact, as required by Local Rule 56(c), the Court is not required to deem the fact admitted

under Local Rule 56(f). See Sanford v. Kirst, No. 21-347, 2023 WL 4052957, at *2 (M.D. La. June

16, 2023) (deGravelles, J.). Rather, “case law recognizes that the Court can still consider record

evidence to determine if there is a factual dispute.” Id. (quoting Braud v. Wal-Mart Stores, Inc.,

No. 17-320, 2019 WL 3364320, at *4 (M.D. La. July 25, 2019) (deGravelles, J.) (first citing Smith

v. Brenoettsy, 158 F.3d 908, 910 (5th Cir. 1998) (citation omitted) (holding, where plaintiff failed

to oppose the motion for summary judgment, that facts in “Statement of Undisputed Facts” were

admitted, “except to the extent that the ‘facts’ in the ‘Statement of Undisputed Facts’ are

contradicted by ‘facts’ in other materials attached to his motion for summary judgment”); then

citing Porter v. Dauthier, No. 14-41, 2015 WL 5611647, at *8, *13 (M.D. La. Sept. 23, 2015)

(deGravelles, J.))). Consequently, even though Carrington acted improperly, the Court will still,

in its discretion, review the evidence to determine if there is a genuine issue of fact. Guillory’s

objection is thus overruled.2

2 The Court pauses here to express its frustration with Carrington’s counsel on a related issue. Carrington’s entire

opposition to Pl. MSJ was filed into the record as a single 200-page file (Doc. 45), and no exhibit stickers were

included in this submission to aid the Court in locating the relevant documents. For instance, Guillory’s Letter of

Carrington’s objection will be overruled as well. “Rule 56(c)(4) provides that when

affidavits are used to support or oppose a summary-judgment motion, they ‘must be made on

personal knowledge, set out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.” Barnett v. Louisiana Dep't of Health,

No. 17-1793, 2023 WL 2467876, at *1 (M.D. La. Mar. 10, 2023) (deGravelles, J.) (citing 10B

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (4th ed.)

(quoting Fed. R. Civ. P. 56(c)(4))).

But, Rule 56(c)(2) states: “A party may object that the material cited to support or dispute

a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2)

(emphasis added). “Although the substance or content of the evidence submitted to support or

dispute a fact on summary judgment must be admissible . . . , the material may be presented in a

form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical & Transp., L.L.C.,

859 F.3d 353, 355 (5th Cir. 2017), as revised (July 5, 2017)) (quoting 11 Moore's Federal Practice–

Civil ¶ 56.91 (2017); and then citing Fraternal Order of Police, Lodge 1 v. City of Camden, 842

F.3d 231, 238 (3d Cir. 2016) (holding that a “proponent need only ‘explain the admissible form

that is anticipated” (quoting Fed. R. Civ. P. 56 advisory committee's note to 2010 amendment));

and then citing Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538

(4th Cir. 2015) (recognizing that a “court may consider . . . the content or substance of otherwise

inadmissible materials where [ ] ‘the party submitting the evidence show[s] that it will be possible

Financial Responsibility, included as Exhibit F to Russell’s Declaration (which is Def. Ex. 1), is buried in the record

as Doc. 45 at 95, but neither were marked. This is a gross violation of the Court’s rules and guidelines on filing

exhibits. See Administrative Procedures for Filing Electronic Documents for Civil and Criminal Cases, § III.A (M.D.

La. 2022), available at https://www.lamd.uscourts.gov/administrative-procedures (last visited Feb. 14, 2024) (“Do not

submit in globo exhibits. Each exhibit should be submitted individually in CM/ECF with an exhibit number and short

description (e.g., Ex.1 Plaintiff Depo).”). Under the above authorities, the Court was under no obligation to sift through

these documents in an effort to rule on the instant motions, but it did so anyway for the sake of judicial economy and

fairness to the parties.

to put the information . . . into an admissible form.” (alteration in original) (quoting 11 James Wm.

Moore et al., Moore's Federal Practice–Civil ¶ 56.91[2] (3d ed. 2015))); and then citing Jones v.

UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012) (determining that a district court

may consider a statement “if the statement could be reduced to admissible evidence at trial or

reduced to admissible form.” (citation omitted))).

Several district courts have applied this standard to reject challenges to authenticity and

hearsay at the summary judgment stage. As one stated:

Whether the statements as made by the declarant are hearsay is not

relevant in the summary judgment context, because at this stage

“materials cited to support or dispute a fact need only be capable of

being ‘presented in a form that would be admissible in evidence.’ ”

LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534

(5th Cir. 2016) (quoting Fed. R. Civ. P. 56(c)(2)). And Plaintiff

asserts the substance of the relevant statements can be presented at

trial in admissible form either through the declarant's testimony, the

testimony of TEA members, or the testimony of Comptroller

personnel. . . . Moreover, Defendant's objections here are more

properly suited to the trial context where the disputed evidence in

the precise form sought to be admitted can by analyzed in its full

context. For evidence to be proper at the summary judgment stage it

does not need to be admissible in the exact form presented, but

merely capable of being “presented in a form that would be

admissible.” Fed R. Civ. P. 56(c)(2).

Texas Ent. Ass'n, Inc. v. Hegar, No. 17-594, 2019 WL 13036162, at *11 n.12 (W.D. Tex. Feb. 27,

2019), aff'd, 10 F.4th 495 (5th Cir. 2021); see also Humphrey v. Tidewater GOM, Inc., 616 F.

Supp. 3d 538, 548 (M.D. La. 2022) (deGravelles, J.) (considering hearsay evidence for summary

judgment purposes); In re TK Boat Rentals, LLC, 411 F. Supp. 3d 351, 374 (E.D. La. 2019)

(allowing emails between counsel and a declaration confirming the authenticity and content of the

emails to be admitted as evidence in ruling on summary judgment motion, holding that “[b]ecause

the content of the emails may be presented in a form admissible at trial, [the] declaration and the

emails are competent summary judgment evidence.”); Ali v. Dist. Dir., 209 F. Supp. 3d 1268, 1276

(S.D. Fla. 2016) (“Nevertheless, a district court may consider a hearsay statement in passing on a

motion for summary judgment if the statement could be reduced to admissible evidence at trial or

reduced to admissible form. . . . The most obvious way that hearsay testimony can be reduced to

admissible form is to have the hearsay declarant testify directly to the matter at trial.”) (citations

and internal quotations omitted).

In sum, for our purposes here, it is only necessary to consider whether the disputed

evidence can be presented in a form admissible at trial. In re TK Boat Rentals, LLC, 411 F. Supp.

3d at 374; see also Barnett, 2023 WL 2467876, at *2 (same). And, as stated by the court in Ali v.

District Director: “[t]he most obvious way that hearsay testimony can be reduced to admissible

form is to have the hearsay declarant testify directly to the matter at trial.” 209 F. Supp. 3d at 1276

(citations omitted); see also Barnett, 2023 WL 2467876, at *2 (same).

Accordingly, Defendant’s objections that the various emails and documents Plaintiff relies

upon are not properly authenticated or that they impermissibly contain hearsay is misplaced. As a

result, Defendant’s objections to these documents are overruled.

C. Rule 56(d)

Plaintiff argues in the alternative that the Court defer ruling on Def. MSJ under Federal

Rule of Civil Procedure 56(d). (Doc. 42 at 2.) Plaintiff states that such a delay would allow the

Court an opportunity to decide her motion to compel (Doc. 32) and for the plaintiff to then

supplement her opposition with any additional evidence. (Doc. 42 at 2.) Plaintiff attaches a

declaration in support of the Rule 56(d) motion, wherein Plaintiff’s counsel outlines how he is

seeking Carrington’s policies and procedures as additional evidence of how Carrington interprets

its contractual obligations. (Bergeron Decl., Doc. 42-3.)

Defendant opposes any delay. (Doc. 46 at 2.) Defendant maintains that Plaintiff has not

satisfied the requirements of Rule 56(d) because the policies are not necessary for Plaintiff’s

defense. (See id.) As Defendant argues below, the policies and procedures do not create a contract

between the parties. (Id. (citations omitted).)

Under Rule 56(d),

If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the

court may: (1) defer considering the motion or deny it; (2) allow

time to obtain affidavits or declarations or to take discovery; or (3)

issue any other appropriate order.

Fed. R. Civ. P. 56(d). “Thus Rule 56(d) allows a party who has no specific material contradicting

its adversary's presentation to survive a summary-judgment motion by presenting valid reasons

justifying his failure of proof.” 10B Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 2740 (4th ed. 2023.)

The purpose of subdivision (d) is to provide an additional safeguard

against an improvident or premature grant of summary judgment

and the rule generally has been applied to achieve that objective.

Consistent with this purpose, courts have stated that the provision

should be applied with a spirit of liberality. Thus, in certain

circumstances courts have indicated that continuances would be

proper even though Rule 56(d) had not been formally complied with

when the court concluded that the party opposing summary

judgment had been diligent and had acted in good faith.

Id.

But, “while Rule 56(d) motions for additional discovery are broadly favored and should be

liberally granted, the party filing the motion must demonstrate how additional discovery will create

a genuine issue of material fact.” Smith v. Reg'l Transit Auth., 827 F.3d 412, 422–23 (5th Cir.

2016) (cleaned up). Thus, “the non-moving party must ‘set forth a plausible basis for believing

that specified facts, susceptible of collection within a reasonable time frame, probably exist and

indicate how the emergent facts, if adduced, will influence the outcome of the pending summary

judgment motion.’ ” Id. at 423 (quoting Am. Family Life Assurance Co. of Columbus v. Biles, 714

F.3d 887, 894 (5th Cir. 2013)). “The nonmovant may not simply rely on vague assertions that

discovery will produce needed, but unspecified, facts.” Id. (quoting Washington v. Allstate Ins.

Co., 901 F.2d 1281, 1285 (5th Cir. 1990)).

Additionally, “the rule will not be applied to aid a party who has been lazy or dilatory.

Thus, . . . a request for relief under Rule 56(d) is extremely unlikely to succeed when the party

seeking the delay has failed to take advantage of discovery.” Wright & Miller, supra, at § 2741.

Here, the central basis for the Rule 56(d) motion was Plaintiff’s desire to obtain documents

that were the subject of the motion to compel. (See Bergeron Decl. ¶¶ 9–12, Doc. 42-3.) However,

Plaintiff filed her opposition on April 4, 2023, (Doc. 42), and, on July 21, 2023, the magistrate

judge partially granted Plaintiff’s motion and compelled the production of certain policies and

procedures in Carrington’s possession. (Doc. 55 at 3, 8–9.) Despite obtaining these documents,

Plaintiff has not supplemented her opposition in any way.

“In evaluating district courts’ rulings on Rule 56(d) motions, [the Fifth Circuit] generally

assesses whether the evidence requested would affect the outcome of a summary judgment

motion.” Smith, 827 F.3d at 422–23 (citing Biles, 714 F.3d at 895). The Fifth Circuit “has found

an abuse of discretion where it can identify a specific piece of evidence that would likely create a

material fact issue.” Id. (citing Hinojosa v. Johnson, 277 F. App’x 370, 378 (5th Cir. 2008)).

Here, that is not the case. Given Plaintiff’s delay in supplementing her opposition, this

Court is left with the conclusion that there were either no additional documents which could have

supported Plaintiff’s opposition (in which case the Rule 56(d) request can be denied under Smith)

or that Plaintiff has been dilatory in supplementing (in which case it should be denied for that

reason, see Wright & Miller, supra). Either way, Plaintiff is not entitled to relief under Rule 56(d),

and the Court will proceed to rule on the merits of Def. MSJ.

III. DISCUSSION

A. Breach of Contract Claim

1. Parties’ Arguments

Carrington contends that it is entitled to judgment as a matter of law on Guillory’s breach

of contract claim. Specifically, Carrington argues there was no breach of contract because (a) it

promptly inspected the Property and released the funds; (b) Carrington’s holding and disbursement

of the insurance proceeds did not cause Guillory damages; and (c) there was no implied contract

because, here, there was an express contract on the same subject matter. (Doc. 39-1 at 11–17.)

Guillory responds that there are questions of fact precluding summary judgment. (Doc. 42

at 9.) Specifically, Guillory asserts that Carrington’s motion should be denied because: (a) there

are disputes of fact on whether Carrington breached its duty to “promptly” inspect the repairs to

the Property; (b) there are disputes of fact concerning the existence of an implied contract based

on representations made to Guillory in Carrington’s Claims Procedures Packet; and (c)

Carrington’s caselaw is distinguishable because none deal with its duty to “promptly” inspect.

(Doc. 42 at 9–19.)

Carrington replies that (a) all inspections were requested and conducted within a reasonable

time; (b) the inspections were also consistent with Carrington’s internal procedures, which “are

business decisions which the Court should not interfere [with] or second-guess;” (c) those internal

procedures do not make a contract with Guillory, as they do not satisfy the requirements of a credit

agreement under La. R.S. § 6:1122; (d) Carrington’s initial distribution was consistent with the

terms of the Mortgage; (e) any inspector error did not result in a breach; and (f) no implied contract

existed as a matter of law. (Doc. 46 at 3–8.)

Plaintiff also moves for partial summary judgment on part of her breach of contract claim

because (a) Carrington failed to initially disburse the greater of $40,000 or 33% of the insurance

proceeds, despite having all required documentation, and (b) Carrington paid the initial

disbursement in two checks rather than one single payment. (Doc. 40-1 at 1–4.) Plaintiff argues

the Mortgage is ambiguous on this point and that her interpretation is supported by (a) the Claims

Procedures Packet sent to Guillory; (b) Carrington’s internal policies and procedures, as expressed

by Carrington’s corporate deponent; and (c) Fannie Mae guidelines to which Carrington adheres.

(Id. at 6–14.)

Carrington opposes Pl. MPSJ. (Doc. 45.) Carrington argues: (a) certain of Plaintiff’s

evidence is inadmissible; (b) the Claims Procedures Packet (also known as the Loss Draft

Procedures) are not a contract; (c) even if this packet was a part of the mortgage, there was no

breach because (i) the Mortgage is not ambiguous; (ii) Carrington satisfied its obligations under

the Mortgage; and (iii) there are questions of fact as to whether Plaintiff submitted all required

documentation. (Id. at 2–12.)

Guillory responds that (a) Carrington relies on outdated law in its evidentiary objections;

(b) Carrington’s Loss Draft policies are evidence of its contractual intent under the Mortgage; (c)

the Mortgage is ambiguous, so extrinsic evidence can be used; and (d) Carrington breached the

Mortgage and attempted to impose on Guillory alleged documentation requirements that are not

contained in the Mortgage. (Doc. 48 at 2–10.)

2. Applicable Law

a. Louisiana Law on Contracts Generally

“When reviewing a state law contract claim, a federal court in Louisiana is bound by the

state's choice-of-law rules.” IberiaBank v. Broussard, 907 F.3d 826, 835 (5th Cir. 2018) (citing

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). “Louisiana rules provide that

where, as here, a contract includes a choice-of-law provision, the provision ‘is presumed valid

until it is proved invalid.’ ” Id. (citing Daniels v. Int'l Paper Co., 245 So.3d 180, 184 (La. App. 2

Cir. 2017)). Here, the Mortgage provides that it is governed by the “law of the jurisdiction in which

the Property is located,” (Mortgage ¶ 16, Doc. 39-3 at 26), so “Louisiana law governs this breach-

of-contract claim.” IberiaBank, 907 F.3d at 835.

“A contract is an agreement by two or more parties whereby obligations are created,

modified, or extinguished.” La. Civ. Code art. 1906. “In Louisiana, a breach-of-contract claim has

three ‘essential” elements: ‘(1) the obligor's undertaking an obligation to perform, (2) the obligor

failed to perform the obligation (the breach), and (3) the failure to perform resulted in damages to

the obligee.’ ” IberiaBank, 907 F.3d at 835 (quoting Favrot v. Favrot, 68 So.3d 1099, 1108–09

(La. App. 4 Cir. 2011)). “The first two elements of a breach-of-contract claim, obligation and

breach, ‘involve[ ] issues of both contractual interpretation as a matter of law, as well as questions

of fact regarding whether the actions of the parties actually constituted the alleged breach under

the applicable contractual terms.’ ” Id. (citing Mobil Expl. & Producing U.S. Inc. v. Certain

Underwriters Subscribing to Cover Note 95-3317(A), 837 So.2d 11, 26 (La. App. 1 Cir. 2002)).

b. Interpretation of these Mortgage Provisions

Carrington points to several cases involving mortgage contracts with purportedly similar

clauses to Section 5 of the instant Mortgage. As Defendant argues, these cases generally support

the enforceability of these provisions. See Dabney v. Countrywide Home Loans, Inc., 428 F. App'x

474, 476 (5th Cir. 2011) (affirming granting of summary judgment because deed gave mortgagee

the right to “disburse proceeds for the repairs and restoration . . . in a series of progress payments

as the work is completed” and to “withhold the ‘insurance proceeds until’ the company had been

afforded ‘an opportunity to inspect . . . to ensure that the work has been completed . . .” and because

the inspection revealed that only fifteen percent of the required work was completed, so mortgagee

“was fully justified in refusing to disburse additional proceeds.”); Harney v. Select Portfolio

Servicing, Inc., No. 16-1998, 2018 WL 1182407, at *6–8 (E.D. La. Mar. 7, 2018) (Barbier, J.)

(relying on Dabney and dismissing breach of contract claim based on mortgage with language

nearly identical to this case because “the mortgage agreement clearly grants [the mortgagee] the

authority to withhold insurance proceeds subject to its satisfaction of the performed repairs” and

because the mortgagee “was not obligated to make any additional disbursements to Plaintiffs in

the absence of Plaintiffs engaging in any self-funded repair.”). But, neither of these cases involved

the interpretation of the term “prompt,” so they provide little guidance to the instant dispute.

Two cases cited by Carrington—Suffern v. Countrywide Home Loans, Inc., No. 06-0358,

2006 WL 1999204 (E.D. La. July 14, 2006) and Orrill v. Mortg. Elec. Registration Sys., Inc., No.

06-10012, 2010 WL 2696965 (E.D. La. July 1, 2010)—did address this term, but not in a

dispositive way. As will be discussed below, both cases are not binding and distinguishable. Thus,

the Court must rely on general principles of contract interpretation to explicate the Mortgage’s

meaning.

c. Interpretation of Ambiguous Contracts

“Interpreting a contract is a matter of determining the parties’ common intent.” Brock

Servs., L.L.C. v. Rogillio, 936 F.3d 290, 298 (5th Cir. 2019) (citing La. Civ. Code art. 2045).

“When a contract is unambiguous, [courts] look only to the four corners of the contract to interpret

it.” Id. (citing La. Civ. Code art. 2046). “A contract is ambiguous, however, ‘when it is uncertain

as to the parties’ intentions and susceptible to more than one reasonable meaning under the

circumstances and after applying established rules of construction.’ ” Guidry v. Am. Pub. Life Ins.

Co., 512 F.3d 177, 181 (5th Cir. 2007) (quoting Lloyds of London v. Transcon. Gas Pipe Line

Corp., 101 F.3d 425, 429 (5th Cir. 1996)).

“[W]hen the terms of a written agreement are susceptible to more than one interpretation,

or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be

ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or

to show the intention of the parties.” Brock Servs., 936 F.3d at 298 (citing Condrey v. SunTrust

Bank of Ga., 429 F.3d 556, 563 (5th Cir. 2005)). See also Scafidi v. Johnson, 420 So. 2d 1113,

1115 (La. 1982) (“Between the parties to an instrument, parol evidence is admissible . . . to explain

an ambiguity when such explanation is not inconsistent with the written terms. . . .” (quotation

omitted) (cited with approval by Brock Servs.)).

“A doubtful provision must be interpreted ‘in light of the nature of the contract, equity,

usages, the conduct of the parties before and after the formation of the contract, and of other

contracts of a like nature between the same parties.’ ” Greenwood 950, L.L.C. v. Chesapeake La.,

L.P., 683 F.3d 666, 669 (5th Cir. 2012) (quoting La. Civ. Code art. 2053). “According to the Civil

Code, equity ‘is based on the principles that no one is allowed to take unfair advantage of another

and that no one is allowed to enrich himself unjustly at the expense of another,’ and usage is ‘a

practice regularly observed in affairs of a nature identical or similar to the object of a contract

subject to interpretation.’ ” Id. at 669 n.13 (quoting La. Civ. Code art. 2055).

Additionally, “[n]ontechnical words in a contract must be given their generally prevailing

meaning, and each contract provision must be interpreted in light of the other provisions so that

each is given the meaning suggested by the contract as a whole.” Id. at 669 (citing La. Civ. Code

arts. 2047, 2050).

“If an ambiguity remains after applying the other general rules of construction, then the

ambiguous contractual provision is to be construed against the drafter.” Brock Servs., 936 F.3d at

298 (quoting Chinook USA, L.L.C. v. Duck Commander, Inc., 721 F. App'x 361, 366 (5th Cir.

2018)) (citing La. Civ. Code art. 2056 (“In case of doubt that cannot otherwise be resolved, a

provision in a contract must be interpreted against the party who furnished its text.” (emphasis

added by Brock Servs.))).

Ultimately, because “[i]ntent is an issue of fact which is to be inferred from all of the

surrounding circumstances,” Guidry, 512 F.3d at 181 (citations omitted), “when a contract is

ambiguous, the trier of fact must resolve the factual issue of intent, and judgment on the pleadings

or summary judgment is improper,” id. (citing Invs. Syndicate of Am., Inc. v. City of Indian Rocks

Beach, 434 F.2d 871, 877–78 (5th Cir. 1970) (finding that dismissal on the pleadings was error

when the contract at issue was ambiguous); Gertler v. City of New Orleans, 2003-2131 (La. App.

4 Cir. 9/1/04), 881 So. 2d 792, 796 (“If the language of [a contract] is ambiguous or susceptible to

multiple interpretations, the intent of the parties must be determined and summary judgment is

inappropriate.”)); see also Liberty Mut. Ins. Co. v. Pine Bluff Sand & Gravel Co., 89 F.3d 243, 246

(5th Cir. 1996) (“[A]mbiguity in the terms of a contract gives rise to a fact question concerning

the intent of the parties.” (cited with approval by Guidry)); Delaware Valley Fish Co. v. 3South

LLC, No. 21-141, 2023 WL 2416372, at *9–10 (M.D. La. Mar. 8, 2023) (deGravelles, J.) (denying

summary judgment based on ambiguous contract). “Granting summary judgment on an ambiguous

contract may be appropriate only in the very rare circumstance where ‘there is no issue of material

fact concerning the pertinent intent’ of the parties.” Guidry, 512 F.3d at 181 n.5 (quoting Sanders

v. Ashland Oil, Inc., 96-1751 (La. App. 1 Cir. 6/20/97), 696 So. 2d 1031, 1035).

3. Analysis

a. Did Carrington breach the Mortgage by failing to inspect

“promptly”?

Having carefully considered the matter, the Court will largely deny the Def. MSJ on this

claim. Again, the relevant section of the Mortgage provides:

During such repair and restoration period, [Carrington] shall have

the right to hold such insurance proceeds until [Carrington] has had

an opportunity to inspect such Property to ensure the work has been

completed to [Carrington’s] satisfaction, provided that such

inspection shall be undertaken promptly. Lender may disburse

proceeds for the repairs and restoration in a single payment or in a

series of progress payments as the work is completed.

(DSUMF ¶ 6, Doc. 39-2 (emphasis added).)

The Court first finds that this provision is ambiguous. As Plaintiff contends, it does not

define the term “promptly” or describe what “opportunity” or “satisfaction” mean. One reasonable

interpretation is that taken by Suffern: that “prompt” can mean anywhere from three weeks to a

month. See Suffern, 2006 WL 1999204, at *3. But, another reasonable interpretation was expressed

by Carrington’s corporate deponent; she was asked what the typical timeframe between a request

for an inspection and the order of the inspection, and she replied, within “[a]bout seven business

days we would expect that there [would] be movement.” (Rule 30(b)(6) Dep. 82, Doc. 42-9 at 4.)

Because both interpretations are reasonable, there is ambiguity, and summary judgment is

inappropriate. See Delaware Valley, 2023 WL 2416372, at *9–10.

Given this ambiguity, parol evidence is admissible to clarify the parties’ intent. See Brock

Servs., 936 F.3d at 298. Construing the evidence in a light most favorable to the Plaintiff, the parol

evidence—namely, the corporate deponent’s testimony—shows that roughly seven days

constitutes a “prompt” inspection.

Under that interpretation, a reasonable factfinder could easily conclude, when construing

the evidence in a light most favorable to Guillory and drawing reasonable inferences in her favor,

that Carrington breached the Mortgage by failing to inspect “promptly.” That evidence shows the

following delays between Guillory’s request for an inspection and when the actual inspection took

place:

Plaintiff’s Request for Carrington’s Inspection Delay Between Request and

Inspection Made Inspection

December 5, 2020 (Doc. 42- December 15, 2020 (DSUMF 10 days

19 ¶ 15, Doc. 39-2)

March 26, 2021 (DSUMF ¶ April 8, 2021 (DSUMF ¶ 17) 13 days

16)

May 13, 2021 (DSUMF ¶ 20) May 28, 2021 (rescheduled to 15 days from when inspection

June 13, 2021, at Plaintiff’s was first scheduled

request) (DSUMF ¶¶ 21–23)

October 19, 2021 (Doc. 42- November 11, 2021 (DSUMF 13 or 23 days

21) or October 29, 2021 ¶ 25)

(DSUMF ¶ 24; Doc. 42 at 11)

January 14, 2022 (Doc. 42 at February 10, 2022 (DSUMF ¶ 27 days

11; Doc. 42-20) 29)

June 28, 2022 (Doc. 42-16 at Unclear from the record; final At least 42 days and up to 93

1) (and reiterated on July 12, payment was made at some

2022 (id. at 2); August 9, 2022 point in October 2022

(id. at 3) (DSUMF ¶¶ 54–58; Doc. 42-

18.)

Thus, a reasonable factfinder could side with Guillory on this claim.

Carrington advances a number of arguments in support of summary judgment, but each

fails. First, Defendant points to different testimony in which its corporate deponent states that some

delays were caused by “hurdles” created when Guillory’s attorney refused to speak to an advocate

and instead wanted to talk to one of Carrington’s attorneys. (Rule 30(b)(6) Dep. 22, Doc. 46-1 at

3.) But this merely highlights the existence of questions of fact as to whether Carrington acted

“promptly” under the circumstances.

Second, Carrington objects to Plaintiff’s evidence about when she requested the

inspections, arguing (a) that the various letters are unauthenticated and (b) that there are reasonable

justifications for the delays, such as a letter being sent in the mail and one letter being received the

Friday before a holiday weekend. (Doc. 46 at 3–4.) As to complaint (a), for the reasons stated

above, these evidentiary objections are overruled. See Fed. R. Civ. P. 56(c)(2); Lee, 859 F.3d at

355 (quoting 11 Moore's Federal Practice–Civil ¶ 56.91 (2017)); Barnett, 2023 WL 2467876, at

*1–2 (collecting authorities); Section II.B, supra. As to complaint (b), Carrington’s hypothesis that

any delay was caused by the mail is (i) speculative; (ii) ignores the other substantial delays

highlighted above; and (iii) again underscores the existence of questions of fact.

Third, Carrington maintains that even if it breached the Mortgage, any breach was not the

cause of Plaintiff’s damages since (a) Guillory agreed in the Mortgage that Carrington had the

right to “disburse proceeds for the repairs and restoration in a single payment or in a series of

progress payments as the work is completed,” (DSUMF ¶ 6, Doc. 39-2); and (b) Guillory obligated

herself in a Letter of Financial Responsibility to pay for the costs of the repairs, (Doc. 39-3 at 79).

(Doc. 39-1 at 14–16.) But the Court rejects both of these arguments. As to the former, when

construing the Mortgage in a light most favorable to Guillory and drawing reasonable inferences

in her favor, Carrington’s right to disburse must be read in conjunction with its obligation to inspect

“promptly” “so that each is given the meaning suggested by the contract as a whole,” Greenwood,

683 F.3d at 669, and Carrington’s breach of this duty would still subject Carrington to damages

for delay, La. Civ. Code art. 1989. Similarly, Guillory’s decision to pay for the repairs herself does

not exonerate Carrington of any breach of its obligation to reimburse Guillory after prompt

inspections.

Fourth, Defendant’s authority is distinguishable. In Suffern, Judge Lemelle determined for

purposes of a Rule 12(c) motion that, “given the number of inspections required following

Hurricane Katrina, three weeks to conduct such inspection may actually be ‘prompt.’” Suffern,

2006 WL 1999204, at *3. Moreover, “even if the delay was not ‘prompt,’ [the mortgagee]

remedied the potential delay by providing Plaintiffs with $15,000 dollars . . . prior to conducting

any inspection” and by providing the “full amount due three weeks after conducting” an inspection

which occurred a month after Plaintiff’s written request. Id.

However, Suffern’s scant analysis does not provide much guidance on how it arrived at its

conclusion about the meaning of the term “prompt,” and this Court is left with the conclusion that

Suffern should be limited to the facts of that case—facts which, as shown above, are considerably

different than the instant one, involving a much less severe event than Hurricane Katriana and

substantially shorter delays.

Likewise, in Orrill, another case cited by Carrington, the court granted summary judgment

to a mortgagor where the back-and-forth between the mortgagee and homeowner began on

November 9, 2005, and was fully resolved by March 30, 2006. 2010 WL 2696965, at *3. The court

concluded that the “evidence adduced in support of defendants' motion depicts nothing more than

a good-faith dialogue regarding the amount of insurance payments that should have been disbursed

at any time.” Id. Plaintiff had received $63,000 less than a month after initially receiving the

insurance checks, and that was “well over half of the $96,000 in repair costs and slightly less than

half of the total amount of the insurance proceeds.” Id. “Defendants then disbursed the remainder

of the funds over the next few months in accordance with their estimates of the progress that had

been made on the repairs. The entire sum of the insurance proceeds had been disbursed within five

months of [plaintiff’s] receipt of the checks.” Id. Relying on Suffern, the court noted that

“Defendants made significant advance payments to [plaintiff] before they had conducted any

inspections,” and “[t]hey made additional payments that were commensurate with the level of

progress that had been made on the repairs . . .” Id. at *4.

But Orrill is different than the instant case. Specifically, Orrill is distinguishable and not

persuasive because: (a) like Suffern, Orrill took place in the generational aftermath of Hurricane

Katrina, so a five-month delay in that case may be justified there but not here; (b) Guillory had to

wait two months, not one month, before receiving the initial $40,000, and this payment did not

represent “well over half” of the repair costs, (see Russell Decl. ¶¶ 16, 21, 28, Doc. 39-3); and (c)

most importantly, Carrington’s entire process took not five months but two years—from first

reporting the loss on September 10, 2020, to receiving the final lump payment on April 26, 2022,

and the final interest payment on October 18, 2022, (id. ¶¶ 8, 62–63)—so the delays here were

significantly greater that in Orrill and Suffern.

For all these reasons, the Court finds summary judgment on this issue is inappropriate.

Consequently, the Court denies Def. MSJ as to this claim.

b. Did Carrington breach any obligation to initially disburse the funds?

The next issue is whether Carrington breached any obligation related to its initial

disbursement to Plaintiff. Again, both sides move for summary judgment on this issue.

By way of factual background, Guillory received her first insurance payments for damage

to her Property in October 2020, in the form of two checks in the amount of $41,292.55 and

$4,491.24, for a total of $45,783.79. (Pl.’s Statement of Undisputed Material Facts in Support of

[Pl. MPSJ] (“PSUMF”) ¶ 3, Doc. 40-2; Def.’s Response to [PSUMF] (“DRSUMF”) ¶ 1, Doc. 45

at 15.)° Carrington got the two checks on December 8, 2020, and returned them to Guillory for

endorsement. (PSUMF 4¥ 4—5, Doc. 40-2.) Carrington got the endorsed checks on January 7, 2021,

and deposited them on January 11. (/d. § 6.)

Guillory claims that Carrington’s conduct thereafter constituted a breach of its contract.

Specifically, Guillory received a Claims Procedures Packet, which said:

How are insurance funds released? . . .

Claims greater than $40,000:

e Upon receipt of required documents (refer to Loss Draft

Checklist), we will issue an initial disbursement payable to

you and your contractor equal to the greater of $40,000, 33%

of the insurance loss proceeds, or the amount by which the

claim funds exceed the payoff amount of your loan.

e Subsequent disbursements will be issued based upon the

progress of repair work as determined by a property

inspection.

(Doc. 40-5 at 3; PSUMF 4 7-8, Doc. 40-2.) Accordingly, in general, Carrington’s policy is that

when a claim exceeds $40,000, Carrington will make an initial disbursement of the greater of

$40,0000.00, or 33% of the insurance loss proceeds, or the amount by which the claim funds

exceeded the payoff amount of the loan. (PSUMF 4 9, Doc. 40-2.) Thus, says Plaintiff, because

Carrington advised Guillory on January 7, 2021, that it received all required documents,’ and

3 When PSUMF is cited by itself, the fact has either been admitted in the DRSUMF or been qualified or denied in such

a way as to have it be deemed admitted because it was not properly controverted. See M.D. La. Civ. R. 56(c), (f).

+ Specifically, the Servicing Notes from that day provide:

01/07/2021 JENNIFER GUILLORY 337-764-9517 borrower called in wanting to know why she received

25

because Carrington did not make an initial payment until February 11, 2021 (and then only in the

amount of $12,565.13), (PSUMF 4§ 10-11, Doc. 40-2), Carrington breached its contract. When

construing this evidence in a light most favorable to Plaintiff and drawing reasonable inferences

in her favor, the Court can easily deny Def MS/J on this issue.

But, Carrington also presents evidence—namely, the language of the Mortgage,

Carrington’s policies, and the timeline of events—which makes partial summary judgment on

MPSJ inappropriate. The Mortgage itself grants Carrington the nght to “disburse proceeds for the

repairs . . . in a single payment or in a series of progress payments as the work is completed,”

(DSUMF 6, Doc. 39-2.) Carrington submits evidence that it “holds insurance proceeds and makes

periodic disbursements as work is completed in order to protect [Carrington’s] interest in

preserving its collateral, to prevent misuse of funds intended to repair the collateral, and to make

sure repairs are completed in a workmanlike manner.” (Russell Decl. § 11, Doc. 39-3.) Construing

that language and its intent in a light most favorable to Carrington and drawing reasonable

inferences in its favor, Carrington was well within its rights to make the initial disbursements in

multiple payments as the work progressed rather than a single lump sum.

11:46 AM another claim packet; i advised that another claim packet was emailed to her on 1/6/2021 but

was not needed because we already have all the required documents from her; borrower also

advised that inspection had been complete and inspector had advised that she sent inspection

results to us in December; i did check inspection website and advised to borrower that

inspection results are at 30%; borrower advised that she did have to hire an attorney for the

insurance claim and that she should be receiving more funds for the claim; borrower advised

that she is not going te have contractor start work until some funds are released and would like

for funds te be released as soon as possible; borrower also advised that she has spent all of

her savings of $30,000 on the repairs for the home and would like to have funds sent out as

soon as possible; i did schedule a follow up with file owner to reach out to borrower once

inspection results are updated to the claim; NEXT STEP: pending inspection results; follow up

with borrower

(Doc. 40-6 at 3-4.)

26

Likewise, Carrington had certain policies dealing with the distribution of the proceeds,

including the initial payment. Candace Russell, a Carrington Vice President and its corporate

deponent, testified that, for monitored claims (i.e., claims exceeding $40,000, like this one),

Carrington will issue an initial disbursement payable to the borrower and the borrower’s contractor

equal to the greater of $40,000, 33% of the insurance loss proceeds, or the amount by which the

claim funds exceed the payoff of the loan. (Russell Decl. ¶¶ 10, 12, Doc. 39-3.) But, Carrington

does so “upon receipt of the required documents.” (Id. ¶ 12.) Additionally, Carrington has another

option: when people choose to do the work before the funds have been released (like in this case),

Carrington can also require a third of the work to be done before releasing the funds. (Rule 30(b)(6)

Dep. 179–80, Doc. 39-5 at 18.) Thus, Carrington’s policy also allowed it to pay upon request of

paid receipts considered. (Id. at 96, Doc. 45 at 176.) So, in order to determine whether to release

to the borrower only, Carrington typically needed, inter alia, signed paid receipts of payments,

lien releases, and waivers. (Rule 30(b)(6) Dep. Resumed 89–90, Doc. 45 at 197; see also Rule

30(b)(6) Dep. at 110, Doc. 39-5 at 12 (stating that disbursements were based on “the results of loss

draft inspections, including insurance estimate and borrower’s intent to repair and other

documentation.”); Rule 30(b)(6) Dep. 97–98, 104, Doc. 45 at 178–79 (describing how certain

documents were needed); (id. at 104–05, Doc. 45 at 179–80 (describing how Carrington needed to

know that the contractor was licensed and how it needed a lien waiver so that Carrington would

not be held responsible if the borrower did not pay the contractor); Loss Draft Checklist, Doc. 39-

3 at 57 (stating how the mortgagor should provide Carrington with (a) endorsed insurance claim

checks; (b) an insurance adjuster’s estimate; (c) a mortgagor’s declaration of intent to repair; (d)

any contracts for repair, including a schedule of payments and itemization of repairs that matches

the insurance adjuster’s estimate; (e) a contractor’s certification showing, inter alia, that he is

licensed and insured; (f) IRS Form W-9 for each contractor; and (g) conditional waivers and

release of liens); Russell Decl. ¶¶ 14–15, Doc. 39-3 (describing above documents as required for

claims exceeding $20,000).

Carrington presents evidence that the initial distributions were consistent with those

policies and the Mortgage because Guillory in fact did not provide Carrington with the required

documentation timely. Specifically, on December 7, 2020, Carrington received an estimate from

Midas Painting estimating the cost to repair the Property at $126,081.00. (Russell Decl. ¶ 16, Doc.

39-3.) According to Russell, Guillory advised that the repairs on her roof were complete and

requested an inspection on December 10, 2020. (Id. ¶ 17.) The Property was inspected on

December 15, 2020, based on information and photographs provided by Guillory5 and determined

to be 30% complete, and, on December 30, 2020, another copy of the claims packet was emailed

to Guillory. (Id. ¶¶19–20.) Again, Carrington received two fully endorsed checks on January 11,

2021—one in the amount of $41,292.55, and the other for $4,491.24. (Id. ¶ 21.) On January 21,

Guillory called Carrington and asked for reimbursement for the Easy Roof Remodeling invoices

she paid for the roof repairs. (Id. ¶ 22.) Carrington confirmed the invoices were paid in full but

advised Guillory that it could not release additional funds because Carrington did not have an

estimate from the insurer on file or confirmation that the other invoices she submitted were paid

in full. (Id.) On January 29, 2021, Carrington received Guillory’s insurance estimate from

Guillory’s attorney’s office. (Id. ¶ 24.) On February 10, 2021, a disbursement in the amount of

$12,565.13 was approved as reimbursement for the roof repairs, and the check was mailed to

Guillory by letter dated February 18, 2021. (Id. ¶ 25.) A day before, on February 17, 2021,

Carrington received an unsigned Letter of Financial Responsibility from Guillory, and Carrington

5 At this time, due to Covid restrictions, Carrington accepted property inspections based on photographs submitted by

the borrower in lieu of in person inspections. (Russell Decl. ¶ 18, Doc. 39-3.)

did not receive the signed copy until February 23, 2021. (Id. ¶ 27, Doc. 45 at 21; see also Rule

30(b)(6) Dep. 106–07, Doc. 45 at 181–82 (describing this as the last document shown in the

payment history for the initial disbursements.) According to the letter, that document reflected that

Guillory had “chosen contractors’ estimates [which were] higher than what the estimate provided

by the insurance company for repairs to [her] home,” so she had to agree to “pay the contractor if

the insurance company [did] not reimburse [her] for the remaining balance.” (Doc. 45 at 95.) On

March 10, 2021, a disbursement in the amount of $27,434.87 was approved, and the check was

mailed on March 15, 2021. (Russell Decl. ¶ 28, Doc. 39-3.)

Considering these facts (construed in a light most favorable to Carrington with reasonable

inferences drawn in its favor), the Court cannot conclude that all reasonable factfinders would

decide, beyond debate, that Carrington breached the Mortgage in its initial disbursements.

Questions of fact exist as to whether Guillory submitted the necessary documents and whether

Carrington acted appropriately. Plaintiff contends that she never agreed to these documentation

requirements (particularly the need for a Letter of Responsibility) and is thus not subject to them,

but that is grist for the mill of trial; and though it appears at this point that Plaintiff has the much

stronger argument on all the breach of contract claims addressed above, and though the Court has

more latitude at the summary judgment stage before bench trials, the Court remains “aware that

assessments of credibility come into sharper focus once live witnesses are heard[.]” Placid Oil,

932 F.2d at 398. Consequently, Pl. MPSJ will be denied.

c. Did Carrington breach any implied contract between the parties?

Guillory next argues that, while Carrington’s failure to follow its Claims Procedure Packet,

policies, and procedures constitutes evidence of a breach of a written contract between the parties,

it also constitutes breach of an implied contract. (Doc. 42 at 16.) Carrington contends there is no

implied contract between it and Guillory with respect to the insurance proceeds because implied

contracts cannot exist where there is an express contract between the parties on the same subject

matter. (Doc. 39-1 at 16–17.) Guillory responds that these issues do not involve the same “subject

matter” and that, in any event, the existence of a contract is a question of fact inappropriate for

summary judgment. (Doc. 42 at 16.) Carrington replies that the Claims Procedure Packet is a

“guide” or “checklist,” not a contract of any kind, and certainly not an implied contract since it

concerns the same subject matter as the Mortgage. (Doc. 46 at 5–8.)

Having carefully considered the matter, the Court agrees with Carrington that the Claims

Procedure Packet does not create an implied contract. “An implied in fact contract rests upon

consent implied from facts and circumstances showing a mutual intention to contract. Consent to

an obligation may be implied from action only when circumstances unequivocally indicate an

agreement or when the law presumes it.” Okuarume v. S. Univ. of New Orleans, 2017-0897 (La.

App. 4 Cir. 4/25/18), 245 So. 3d 1260, 1265 (quoting Union Tex. Petrol. Corp. v. Mid La. Gas

Co., (La. App. 4 Cir. 2/12/1987), 503 So. 2d 159, 165 (internal citations omitted)). “Furthermore

. . . there can be no implied contract where there is an express contract between the same parties

in reference to the same subject matter.” Id. (citing Mazureau & Hennen v. Morgan, 25 La. Ann.

281 (La. 1873)).

Here, all reasonable factfinders would conclude that the Claims Procedures Packet and

Mortgage involve “the same subject matter.” Again, the Mortgage specifically provides:

During such repair and restoration period, [Carrington] shall have

the right to hold such insurance proceeds until [Carrington] has had

an opportunity to inspect such Property to ensure the work has been

completed to [Carrington’s] satisfaction, provided that such

inspection shall be undertaken promptly. Lender may disburse

proceeds for the repairs and restoration in a single payment or in a

series of progress payments as the work is completed.

(DSUMF ¶ 6, Doc. 39-2 (emphasis added).) The relevant portion of the Claims Procedures Packet

is specifically entitled, “How are insurance funds released?” (Doc. 39-3 at 55; Doc. 40-5 at 3.) The

only reasonable interpretation of these two documents is that they involve the same subject

matter—namely, disbursement of insurance proceeds.

Indeed, this conclusion is bolstered by Plaintiff’s own deposition testimony. Guillory was

shown her Note, the Mortgage, and the Loan Modification Agreement6 and was then asked if she

had any other written or oral agreements related to her mortgage loan, and she responded that she

could not recall any. (Guillory Dep. 13–17, Doc. 39-4.)

Additionally, courts have recognized that a mortgagee’s internal policies do not impose

legal duties on it or otherwise establish a contract with the mortgagor. See Shamrock Associated

Indus., L.L.C. v. Fid. Nat. Prop. & Cas. Ins. Co., No. 06-4093, 2006 WL 6927866, at *3 (E.D. La.

Nov. 2, 2006) (finding no breach of contract claim against mortgagee despite plaintiff’s reliance

on internal policies, and stating in reference to the negligence claim, “The internal corporate policy

does not inure to the benefit of the mortgagor, but is designed to protect the investment of the

mortgagee.”); Hinton v. Fed. Nat. Mortg. Ass'n, 945 F. Supp. 1052, 1054 (S.D. Tex. 1996), aff'd,

137 F.3d 1350 (5th Cir. 1998) (unreported) (“A homeowner sued the current holder of his

mortgage because it and its contract service agent required him to pay for private mortgage

insurance when its internal guidelines said that it might have been waived. The homeowner's

obligations are in the mortgage instruments he signed, not the mortgage lender's service guide.”).

For all these reasons, the Court finds that the Claims Procedure Packet does not create an

implied contract. So, Def. MSJ will be granted on this issue.

6The January 24, 2020, Loan Modification Agreement affirmed the terms of the Note and Mortgage, as modified, and

did not modify Section 5 of the Mortgage. (DSUMF ¶¶ 7–8, Doc. 39-2.).

Nevertheless, Guillory is correct about the role the Claims Procedures Packet, policies, and

procedures play in this case. This Court already determined that Section 5 of the Mortgage is

ambiguous, and all of the documents and testimony related to Carrington’s policies and

procedures—including the Claims Procedures Packet—play a critical role in interpreting that

ambiguity. Thus, in that respect, Def. MSJ is again denied.

B. Breach of Fiduciary Duty Claim

Carrington next argues there was no breach of fiduciary duty claim because Carrington had

no fiduciary relationship with Guillory; rather, their relationship was that of a financial institution

and customer. (Doc. 39-1 at 17–20.) Guillory responds that there are questions of fact on this issue

(a) because Carrington was entrusted with her insurance funds and so Carrington had to act in her

interest, and (b) because of the same facts highlighted above in the breach of contract section.

(Doc. 42 at 19–21.) Carrington replies (a) that Guillory’s efforts to distinguish its authority fail;

(b) that no entrustment happened, as Guillory was contractually obligated to tender the insurance

proceeds to Carrington; and (c) Carrington did not act in Guillory’s interest but in its own in order

to protect the insurance proceeds until repairs could be completed. (Doc. 46 at 8–10.)

In short, the Court will grant Def. MSJ on this issue. “In Louisiana, it is clear that a financial

institution only owes to a borrower the duty of complying with the contract between the institution

and the borrower. However, no fiduciary duty of loyalty exists between the financial institution

and the borrower.” Landreneau v. Fleet Fin. Grp., 197 F. Supp. 2d 551, 557 (M.D. La. 2002).

“[U]nless expressly set forth in a written agency or trust agreement, no fiduciary responsibilities

of a financial institution arise toward customers or third parties.” Id. (quoting Ultra Fabricators,

Inc. v. M C Bank & Tr. Co., 724 So. 2d 210, 214 (La. App. 1 Cir. 1998)).

This is because Louisiana Revised Statute § 6:1124 provides in relevant part:

No financial institution or officer or employee thereof shall be

deemed or implied to be acting as a fiduciary, or have a fiduciary

obligation or responsibility to its customers or to third parties other

than shareholders of the institution, unless there is a written agency

or trust agreement under which the financial institution specifically

agrees to act and perform in the capacity of a fiduciary. The

fiduciary responsibility and liability of a financial institution or any

officer or employee thereof shall be limited solely to performance

under such a contract and shall not extend beyond the scope thereof.

. . . This Section is not limited to credit agreements and shall apply

to all types of relationships to which a financial institution may be a

party.

La. R.S. § 6:1124. Thus, this statute “maintains that there can be no implied fiduciary obligations

for a financial institution.” AGEM Mgmt. Servs., LLC v. First Tennessee Bank Nat. Ass'n, 942 F.

Supp. 2d 611, 621 (E.D. La. 2013).

Numerous cases have applied La. R.S. § 6:1124 to dismiss a breach of fiduciary duty claim

and/or find that no fiduciary relationship existed. See Landreneau, 197 F. Supp. 2d at 558 (granting

summary judgment because plaintiffs presented no evidence “to establish that there was a contract

. . . wherein [defendant] expressly obligated itself as a fiduciary on behalf of the

cardholders/customers”); Crumes v. Gen. Ins. Co. of Am., No. 06-6890, 2007 WL 4257067, at *3

(E.D. La. Nov. 30, 2007) (Barbier, J.) (granting summary judgment and finding that mortgage

bank owed no fiduciary duty when it purchased insurance to protect its interest in collateral

because plaintiffs failed to show there was a written agreement establishing a fiduciary duty

between the parties); Grubaugh v. Cent. Progressive Bank, No. 13-3045, 2014 WL 794141, at *5

(E.D. La. Feb. 27, 2014) (Barbier, J.) (granting summary judgment on breach of fiduciary duty

claim because plaintiff failed to present evidence that he entered into a “written agency or trust

agreement under which” defendant bank “agreed to act as a fiduciary,” so plaintiff “failed to prove

that a fiduciary relationship existed.”); Grodner & Assocs., APLLC v. Regions Bank, 338 F. Supp.

3d 488, 502 (M.D. La. 2018) (Dick, C.J.) (finding law firm had “no claim against the Bank for

breach of fiduciary duty because it has failed to offer summary judgment evidence to support the

conclusion that a fiduciary relationship existed” when there was “no evidence that the Bank

assumed any fiduciary duties . . . outside of the Deposit Agreements” and when there was no

evidence of “any written policy” requiring bank to take various actions).

The Court finds that similar reasoning applies in this case. The clear and unambiguous

language of La. R.S. § 6:1124 precludes a finding of an implied fiduciary duty; any such obligation

must be express. Here, Guillory can point to no provision of any contract between the parties

expressly imposing a fiduciary relationship. Consequently, the breach of fiduciary duty claim fails

as a matter of law.

Plaintiff points to a few state appellate decisions recognizing certain duties that La. R.S. §

6:1124 does not foreclose. See Simmons, Morris & Carroll, LLC v. Cap. One, N.A., 49,005 (La.

App. 2 Cir. 6/27/14), 144 So. 3d 1207, 1216 (recognizing that a bank owes a duty of reasonable

care for a negligent misrepresentation claim when advising a customer on a matter within its

particular area of expertise, though finding that situation not present under the facts of the case

(citing In re Succession of McKnight, 33,802 (La. App. 2d Cir.10/4/00), 768 So. 2d 794, 797–98));

Guimmo v. Albarado, 99-286 (La. App. 5 Cir. 7/27/99), 739 So. 2d 973, 975–76 (stating that,

“under certain circumstances, such as where a fiduciary relationship is manifest, [an independent

duty of care] to the borrower may arise,” but (a) making no mention of § 6:1124, (b) providing no

definition of what “manifest” means, and (c) finding that “there are simply no special

circumstances here which would give rise to an additional duty on the part of the lender to protect

the borrowers from this unfortunate purchase”); Duplessis Buick-GMC Truck, Inc. v. Chauncey,

2020-0914 (La. App. 1 Cir. 2/24/21), 322 So. 3d 262, 268 (stating that “under certain

circumstances, employees owe a fiduciary duty to their employer,” and finding that relationship

here because sales manager had been “transacting business, not for his own benefit, but for the

benefit of [his employer], where there was ‘a relation implying and necessitating great confidence

and trust on the one part and a high degree of good faith on the other.’). The Court finds each of

these cases distinguishable for the reasons given above.

Moreover, even if these appellate decisions had some bearing (which they don’t), they

would not trump the clear and unambiguous statutory text of La. R.S. § 6:1124. This is because

“Louisiana's ‘civilian methodology’ means the pecking order of . . . sources [of law] is different

than it is for a common law state.” Jorge-Chavelas v. Louisiana Farm Bureau Cas. Ins. Co., 917

F.3d 847, 851 (5th Cir. 2019) (citing Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014)).

“Louisiana's ‘Constitution, codes, and statutes’ are of paramount importance to its judges.” Id.

(quoting Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003)).

Thus, La. R.S. § 6:1124 controls.

In sum, “in Louisiana, the only duty a financial institution owes a borrower is the duty to

comply with the contract between the institution and the borrower.” Obioha v. Proctor Fin. Ins.

Co., No. 06-5364, 2007 WL 2903227, at *3 (E.D. La. Oct. 2, 2007) (citing La. R.S. § 6:1124). As

shown above, Carrington may be liable for breaching its obligations under the Mortgage. But no

reasonable factfinder could conclude that the Mortgage and other agreements expressly imposed

a fiduciary duty on Carrington. As a result, Def. MSJ will be granted on this claim, and it will be

dismissed.

C. Conversion

Next, Carrington asserts that it did not convert Guillory’s insurance proceeds because (a)

Carrington had a right to hold the funds and disburse them as work progressed under the Mortgage

and (b) in any event, Carrington distributed interest on the money quarterly. (Doc. 39-1 at 20–21.)

Guillory responds that there are questions of fact on this claim because (a) even if Carrington had

an initial right to retain the insurance proceeds, it is liable for its failure to timely and properly

disburse them, and (b) even if Carrington paid interest, it is liable for the emotional damages it

caused (Doc. 42 at 21–22.) In reply, Carrington reiterates that, under the Mortgage, Carrington had

the right to disburse payments either in a single payment or a series as the work was completed.

(Doc. 46 at 10.)

“Conversion is defined as an act in derogation of the plaintiff's possessory rights or any

wrongful exercise or assumption of authority over another's goods, depriving him of the

possession, permanently, or for an indefinite time.” Jones v. Administrators of Tulane Educ. Fund,

51 F.4th 101, 119 (5th Cir. 2022) (quoting Chrysler Credit Corp. v. Whitney Nat'l Bank, 51 F.3d

553, 557 (5th Cir. 1995)). Critically, “under Louisiana law, ‘[a]lthough a party may have rightfully

come into possession of another's goods, the subsequent refusal to surrender the goods to one who

is entitled to them may constitute conversion.’ ” Id. (quoting Kinchen v. Louie Dabdoub Sell Cars,

Inc., 05-218 (La. App. 5 Cir. 10/6/05), 912 So. 2d 715, 718).

Having carefully considered the matter, the Court finds summary judgment on this claim

to be inappropriate. On the one hand, as Carrington argues, it had the right under the Mortgage to

“disburse proceeds for the repairs and restoration in a single payment or in a series of progress

payments as the work is completed.” (DSUMF ¶ 6, Doc. 39-2.) But, on the other hand, for all the

reasons given above in the breach of contract section, when construing the evidence in a light most

favorable to Plaintiff and drawing reasonable inferences in her favor, a reasonable factfinder could

also conclude (a) that Carrington refused to surrender the initial disbursements to Guillory, despite

its obligations to do so, (b) that Carrington unreasonably and improperly delayed inspecting the

property, and (c) all of this conduct constituted a “refusal to surrender [money] to one who is

entitled to [it].” Jones, 51 F.4th at 119. As a result, genuine issues of material fact preclude

summary judgment on the conversion claim, and Def. MSJ on this issue will be denied.

Carrington’s argument about damages is also misplaced. “In Louisiana, ‘[t]he traditional

damages for conversion consist of the return of the property itself, or if the property cannot be

returned, the value of the property at the time of the conversion.’ ” Louisiana Specialty Hosp., LLC

v. Adams, No. 10-1513, 2010 WL 3211077, at *2 (E.D. La. Aug. 13, 2010) (Feldman, J.) (citing

Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So. 2d 756, 761 (La. 1985)). “A defendant

may also be liable for mental anguish and inconvenience arising from the lost use of the property

converted.” Id. (citing Broussard, Bolton, Halcomb & Vizzier v. Williams, 796 So. 2d 791, 796

(La. Ct. App. 3 Cir. 2001)); see also 1 Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort

Law § 2.09 (2d. ed. 2023) (“In addition to recovering the value of the chattel, the plaintiff is entitled

to recover for inconvenience, embarrassment, and mental anguish. . . . A court also may fashion

different, more appropriate remedies.” (collecting cases)). “Indeed, ‘[t]he purpose of tort damages

is to make the victim whole.’ ” Adams, 2010 WL 3211077, at *2 (first citing Bellard v. Am. Cent.

Ins. Co., 2007-1335 (La. 4/18/08), 980 So. 2d 654, 668; and then citing Quealy, 475 So. 2d at 762).

Here, as Guillory argues, if she successfully proves her conversion claim at trial, she will

be entitled to other damages beyond the insurance proceeds themselves. For this additional reason,

Def. MSJ on this claim is denied.

D. Unjust Enrichment

Lastly, Carrington argues there is no unjust enrichment claim because (a) Carrington did

not retain the insurance proceeds for itself and, again, paid interest; (b) any enrichment was not

without cause but was rather specifically provided for in the contract; and (c) Guillory alleged

other theories and thus has another remedy available at law. (Doc. 39-1. at 21–22.)

Guillory responds that (a) factual questions exist as to whether Carrington was unjustly

enriched by enjoying the benefits of the insurance proceeds; (b) Carrington’s enrichment was

without cause or justification; and (c) Carrington takes inconsistent positions, arguing

simultaneously that she has no adequate remedy at law while also trying to dismiss her other

claims. (Doc. 42 at 23-25.)

Louisiana Civil Code article 2298 sets out the cause of action for unjust enrichment:

A person who has been enriched without cause at the expense of

another person is bound to compensate that person. The term

“without cause” is used in this context to exclude cases in which the

enrichment results from a valid juridical act or the law. The remedy

declared here is subsidiary and shall not be available if the law

provides another remedy for the impoverishment or declares a

contrary rule.

La. Civ. Code art. 2298.

To establish a claim for unjust enrichment under Louisiana law, a

claimant must prove: “(1) an enrichment, (2) an impoverishment,

(3) a connection between the enrichment and the resulting

impoverishment, (4) an absence of ‘justification’ or ‘cause’ for the

enrichment and impoverishment, and (5) no other remedy at law.”

Brown v. Coleman Investments, Inc., 993 F. Supp. 432, 439 (M.D.

La. 1998) (citing Baker v. Maclay Properties Co., 648 So. 2d 888,

897 (La. 1995) (citations omitted)). Courts may “ ‘resort to equity

only in cases of unjust enrichment for which there is no justification

in law or contract.’ ” Id., citing SMP Sales Mgt., Inc. v. Fleet Credit

Corp., 960 F.2d 557, 560 (5th Cir. 1992) (citations omitted). Stated

simply, “ ‘[q]uasi-contractual remedies may not supplant a contract

between the parties.’ ” Id. (quoting Marple v. Kurzweg, 902 F.2d

397, 401 (5th Cir. 1990) (citations omitted) (emphasis added)).

JMF Med., LLC v. Team Health, LLC, 490 F. Supp. 3d 947, 979-80 (M.D. La. 2020) (deGravelles,

J.).

Here, Guillory asserts a breach of contract claim, and this precludes any claim for unjust

enrichment. Id. at 980 (“[B]oth the state and federal courts hold that the existence of a contract

between the parties alone defeats a claim for unjust enrichment.”); Williams v. Chesapeake

Operating, Inc., No. 10-1906, 2011 WL 13160764, at *2 (W.D. La. Sept. 14, 2011) (“It is well-

established that the absence of an available remedy at law is a threshold requirement, as the unjust

enrichment remedy is available only to fill a gap in the law where no express remedy is provided.”

(cleaned up)); Liberty Mut. Fire Ins. Co. v. Shaw Grp., Inc., No. 20-871, 2022 WL 896804, at *23

(M.D. La. Mar. 25, 2022) (deGravelles, J.) (“The existence of these two claims [for breach of

contract and bad faith] necessarily precludes Shaw's ability to recover for unjust enrichment.”).

While an unjust enrichment claim can be pled alongside a breach of contract claim if there

is some question as to the validity or existence of the contract, see Liberty Mut., 2022 WL 896804,

at *24 (citing United States ex rel. Sun Coast Contracting Servs., LLC v. DQSI, LLC, No. 13-568,

2014 WL 7246936, at *5 (M.D. La. Dec. 17, 2014) (Jackson, J.)), here that is not the case. “It is

the availability of the remedy at law, not its success, that precludes the unjust enrichment claim.”

Id. As Judge Jackson stated in Sun Coast:

A plaintiff need not ultimately prevail on another claim for a court

to find that it was available. “The existence of a ‘remedy’ which

precludes application of unjust enrichment does not connote the

ability to recoup your impoverishment . . . It merely connotes the

ability to bring the action or seek the remedy.” Carriere v. Bank of

La., 702 So. 2d 648, 672 (La. 1996). For example, courts have found

remedies at law available even when claims based in law were time-

barred or never advanced. See, e.g., Walters v. MedSouth Record

Mgmt., LLC, 38 So. 3d 241, 242 (La. 2010); JP Mack Indus. LLC v.

Mosaic Fertilizer, LLC, 970 F. Supp. 2d 516, 520–23 (E.D. La.

2013).

2014 WL 7246936, at *4.

In sum, Def. MSJ will be granted on this issue; because Guillory has another remedy

available at law, her unjust enrichment claim must be dismissed. See JMF Med., 490 F. Supp. 3d

at 980; Liberty Mut., 2022 WL 896804, at *24; Andretti Sports Mktg. Louisiana, LLC v. NOLA

Motorsports Host Comm., Inc., No. 15-2167, 2015 WL 13540096, at *7–8 (E.D. La. Dec. 2, 2015)

(“The existence of another remedy at law will preclude an unjust enrichment claim.”); Reel Pipe,

LLC v. USA Comserv, Inc., No. 18-6646, 2019 WL 127055, at *4 (E.D. La. Jan. 8, 2019) (“USA

Comserv cannot state a claim for unjust enrichment because other remedies are available at law.”

(citation omitted)); Cf. Schott, Tr. for Est. of InforMD, LLC v. Massengale, No. 18-759, 2019 WL

4741811, at *17 (M.D. La. Sept. 27, 2019) (declining to dismiss unjust enrichment claim because,

inter alia, “the validity of the other claims in the Complaint [was] still in question.”).

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion to for [sic] Summary Judgment (Doc. 39) filed by

Defendant, Carrington Mortgage Services, LLC, is GRANTED IN PART and DENIED IN

PART. With respect to Plaintiff’s claims for (1) breach of an implied contract, (2) breach of

fiduciary duty, and (3) unjust enrichment, Def. MSJ is GRANTED, and these claims are

DISMISSED WITH PREJUDICE. With respect to Plaintiff’s claims for (1) breach of an express

contract and (2) conversion, the Def. MSJ is DENIED, and these claims will proceed to trial.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial Summary Judgment

(Doc. 40) filed by Jennifer Guillory is DENIED.

Signed in Baton Rouge, Louisiana, on March 8, 2024.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA