187 So. 3d 91
La. Ct. App.2016Background
- NCSL sued Phillip Kuzma seeking recovery on a student loan, alleging $80,213.98 principal and $5,718.10 accrued interest, plus additional interest and attorney’s fees.
- NCSL served process via a special serving agent after attempting service through the university; personal service occurred May 10, 2014.
- Kuzma did not answer; a preliminary default was entered September 30, 2014, and judgment without a hearing was entered March 4, 2015 for $35,932.08 plus 4% interest and 25% attorney’s fees.
- The trial-court record did not contain NCSL’s motion to confirm the default judgment, account statements, business records, or an affidavit of correctness—only the petition’s allegations.
- Kuzma appealed, arguing NCSL failed to make a prima facie case under La. Code Civ. Proc. art. 1702; the appellate court agreed and vacated and remanded the default judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether record contains prima facie proof to confirm a default judgment under La. Code Civ. Proc. art. 1702 | NCSL argued the petition and court’s recital that proof was made sufficed to confirm the default judgment | Kuzma argued NCSL failed to produce account statements and an affidavit of correctness as required, and failed Article 1702.1 certifications | Court held NCSL failed to establish a prima facie case; vacated and remanded |
| Whether affidavit of correctness or account statements are required for open-account claims | NCSL implied procedural recitals and judgment language were adequate post-judgment | Kuzma contended Sessions & Fishman requires account evidence plus affidavit/testimony to prove existence and correctness | Court reaffirmed that both account evidence and an affidavit (or testimony) are required to prove the account’s existence and correctness |
| Whether Article 1702.1 certifications can be omitted when confirming default without an open-court hearing | NCSL did not file the certifications required by Article 1702.1 | Kuzma asserted failure to file the mandatory 1702.1 certifications is fatal | Court held absence of 1702.1 certifications is fatal to confirmation; prior practice allowing mere recital in judgment is no longer valid |
Key Cases Cited
- Gresham v. Prod. Mgmt., Inc., 868 So.2d 171 (La. App. 4 Cir. 2004) (appellate review of default-judgment confirmation limited to prima facie sufficiency)
- Arias v. Stolthaven New Orleans, L.L.C., 9 So.3d 815 (La. 2009) (prima facie determination is factual and reviewed for manifest error)
- Parker v. Schneider, 151 So.3d 679 (La. App. 4 Cir. 2014) (discussing appellate scope in default-judgment confirmation)
- McIntyre v. Sussman, 76 So.3d 1257 (La. App. 4 Cir. 2011) (standards for appellate review of default confirmations)
- Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La. 1993) (an affidavit of correctness plus account statement or invoices required to establish existence and validity of open-account demand)
- Habitat, Inc. v. Commons Condominiums, L.L.C., 97 So.3d 1126 (La. App. 4 Cir. 2012) (failure to file Article 1702.1 certificate is fatal to confirmation)