289 So.3d 1200
La. Ct. App.2020Background
- Bank of America sued Michael A. Alexander, Sr. and Roxann Franklin Alexander on June 28, 2018 to enforce a promissory note and mortgage on property in Harvey, LA; personal service on Michael occurred July 11, 2018.
- A preliminary default against Michael was entered September 27, 2018; Bank moved to confirm final default judgment, which was entered January 25, 2019.
- Bank attached the original note (and later assignments), recorded mortgage instruments, loan modifications, and affidavits including one from a servicer representative stating Bank of America was last holder for value and the original note was lost.
- Michael filed a motion to vacate the default judgment on February 25, 2019 (citing insufficient evidence and excusable neglect); the trial court denied the motion the same day without a hearing.
- Michael appealed, asserting (1) defective certifications, (2) lack of evidentiary support/standing, (3) judgment should have included co‑defendant, and (4) denial of his motion to vacate without a hearing violated due process; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the attorney and clerk certifications required by La. C.C.P. art. 1702.1 deficient? | Certifications attached to the confirmation motion complied with Article 1702.1 (attorney described service and exhibits; clerk certified record review). | Certifications were legally deficient and therefore confirmation was improper. | Certifications complied with Article 1702.1; assignment without merit. |
| Did the record contain sufficient evidence to establish a prima facie case and Bank's standing as last holder of the note? | Attachments (note, assignments, mortgage, affidavits, publication re: lost note) were admissible and self‑authenticating under art. 1702(B) and established prima facie proof. | Exhibits were uncertified/irrelevant to Bank and affidavits (including servicer rep) were improper; Bank lacked standing. | Exhibits and affidavit were sufficient to show Bank was last holder and to support confirmation of default. |
| Is a default judgment against only one of multiple defendants "different in kind" from relief demanded? | The petition sought judgment against each defendant; judgment against one defendant awards the same kind of relief as to that defendant. | Judgment is void because it did not adjudicate the co‑defendant and thus differed from the petition. | A default against fewer than all defendants is not "different in kind"; judgment against Michael was proper. |
| Did denial of Michael's motion to vacate without a hearing violate due process or require relief for "excusable neglect"? | Michael was personally served, had ample time to answer, and did not plead nullity grounds; insufficiency of proof is remedied by appeal or new trial, not nullity. | Denial without hearing deprived him of an opportunity to be heard; excusable neglect (family deaths) justified vacatur. | No due process violation: Michael had notice and opportunity to respond, did not assert proper nullity grounds, and excusable neglect was insufficient to void the judgment; denial without hearing was not erroneous. |
Key Cases Cited
- Arias v. Stolthaven New Orleans, L.L.C., 9 So.3d 815 (La. 2009) (standard of review for appellate review of trial findings and sufficiency of evidence)
- Charia v. Mungoven, 550 So.2d 939 (La. App. 5th Cir. 1989) (documents and affidavits attached to petition may be admissible and self‑authenticating under art. 1702)
- ASI Fed. Credit Union v. Leotran Armored Sec., LLC, 259 So.3d 1141 (La. App. 5th Cir. 2018) (affidavit proof can suffice to confirm default on conventional obligations)
- Green Tree Servicing, LLC v. Edwards, 232 So.3d 688 (La. App. 5th Cir. 2017) (default judgment principles and defendant’s duty to respond after service)
- Mooring Fin. Corp. 401(K) Profit Sharing Plan v. Mitchell, 15 So.3d 311 (La. App. 4th Cir. 2009) (requirements for setting aside default and nullity principles)
- National Income Realty Trust v. Paddie, 737 So.2d 1270 (La. 1999) (failure of proof is not a vice of form; remedy is new trial or appeal, not nullity)