Bank of Colorado v. Schmidt

80 So. 3d 617, 2011 WL 5983298
CourtLouisiana Court of Appeal
DecidedNovember 29, 2011
DocketNo. 11-CA-325
StatusPublished

This text of 80 So. 3d 617 (Bank of Colorado v. Schmidt) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Colorado v. Schmidt, 80 So. 3d 617, 2011 WL 5983298 (La. Ct. App. 2011).

Opinion

WALTER J. ROTHSCHILD, Judge.

[^Defendant, Douglas Schmidt, appeals the trial court’s November 23, 2010 judgment, denying his Motion and Order to Nullify Judgment dated October 6, 2010. For the following reasons, we affirm.

STATEMENT OF THE CASE

On September 21, 2010, Bank of Colorado filed an Ex Parte Petition to Have Foreign Judgment Made Executory. In this motion, Bank of Colorado stated that it is the judgment creditor of Mr. Schmidt by virtue of a judgment rendered on June 24, 2010, by the District Court of Eagle County, Colorado. In its petition, Bank of Colorado asked “to have the Colorado judgment made executory and given full efficacy, the same as a judgment of this Court, for all purposes,” in accordance with the provisions of Louisiana Revised Statutes 13:4241, et seq. In support of its petition, Bank of Colorado submitted a copy of the Colorado | .judgment, a verification document certifying the authenticity of the Colorado judgment, and the affidavit of Troy Meissner, Assistant Vice President of Credit/Special Assets for Bank of Colorado, setting forth the address of Bank of Colorado and the last known address of Mr. Schmidt.

On October 6, 2010, the trial court rendered a judgment recognizing the Colorado judgment “as a judgment of this Court,” in favor of Bank of Colorado and against Douglas Schmidt, in the amount of $118,919.70, together with interest of [619]*619$24,262 per day from March 24, 2010, until paid, plus collection costs and attorney fees of $2,767.56, as well as additional collection costs and reasonable attorney fees incurred by Bank of Colorado. On October 20, 2010, Mr. Schmidt filed a Motion and Order to Nullify Judgment dated October 6, 2010, asserting that the trial court’s judgment was a nullity, because the copy of the Colorado judgment sought to be made executory was unsigned and undated, and the affidavit of the Deputy Clerk of the District Court of Eagle County certifying the judgment was unsigned. In his motion, Mr. Schmidt further argued that the affidavit of Mr. Meissner does not state that Bank of Colorado timely gave notice of these proceedings to Mr. Schmidt and the Jefferson Parish Clerk of Court did not file proof of mailing of notice to Mr. Schmidt, as required by LSA-R.S. 13:4243(B).

On October 21, 2010, Bank of Colorado filed the affidavit of Lori Graff, in which she indicated that she mailed copies of the Ex Parte Petition to Have Foreign Judgment Made Executory, with exhibits, and a copy of the proposed judgment, to Mr. Schmidt at two addresses by certified mail. Ms. Graff attached a copy of the delivery confirmation indicating that Mr. Schmidt received the letter on October 14, 2010. On November 12, 2010, Bank of Colorado filed an Opposition to Motion and Order to Nullify Judgment dated October 6, 2010.

14This matter came before the trial court for hearing on November 23, 2010.1 After a hearing, the trial judge denied the Motion to Nullify the Judgment dated October 6, 2010. Mr. Schmidt appeals.

LAW AND DISCUSSION

On appeal, Mr. Schmidt contends that the trial court improperly denied his Motion and Order to Nullify Judgment dated October 6, 2010. First, Mr. Schmidt contends that the trial court improperly relied on an unsigned copy of the Colorado judgment and the unsigned verification of judgment when rendering the October 6, 2010 judgment. Second, he argues that Bank of Colorado did not follow the provisions of the Louisiana Enforcement of Foreign Judgments Act, as set forth in LSA-R.S. 13:4241 et seq., which are required to make the Colorado judgment executory in Louisiana.

LSA-R.S. 13:4242 of the Enforcement of Foreign Judgments Act provides as follows:

A copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be annexed to and filed with an ex parte petition complying with Code of Civil Procedure Article 891 and praying that the judgment be made executory in a court of this state. The foreign judgment shall be treated in the same manner as a judgment of a court of this state. It shall have the same effect and be subject to the same procedures, and defenses, for reopening, vacating, or staying as a judgment of a court of this state and may be enforced in the same manner.

On September 21, 2010, Bank of Colorado filed its Ex Parte Petition to Have Foreign Judgment Made Executory, and attached a copy of the Colorado judgment sought to be made executory, along with a verification document. The judgment contains an electronic signature box at the top right corner, containing the trial judge’s signature and printed name above the date of the document, June | a24, 2010. Along [620]*620with the judgment, Bank of Colorado submitted a verification document certifying the authenticity of the judgment. The September 9, 2010 verification document originally filed by Bank of Colorado was signed by the Colorado trial judge, but it was missing a signature from the Deputy Clerk of the District Court of Eagle County of the State of Colorado, Patty Seifers. However, on October 4, 2010, Bank of Colorado filed a new verification, dated September 30, 2010, which contains all of the necessary signatures. Therefore, Mr. Schmidt’s argument that the trial judge relied on unsigned documents when rendering the October 6, 2010 judgment is unpersuasive, because the signed documents were provided to the trial judge before he signed the October 6, 2010 judgment.

To the extent Mr. Schmidt contends that the electronic signature on the Colorado judgment does not constitute a valid signature, we disagree. We find that the judgment, along with the verification document, clearly meet the authentication requirements of LSA-R.S. 13:4242 for making a foreign judgment executory.

Based on our review of the record before us, we find no error in the trial judge’s determination that the Colorado judgment is in proper form, “worthy of full faith and credit in the State of Louisiana,” and in compliance with the requirements for making a foreign judgment executory in Louisiana. Accordingly, Mr. Schmidt’s first argument is without merit.

In his second argument on appeal, Mr. Schmidt contends that he did not receive proper notice of these proceedings, pursuant to LSA-R.S. 13:4243. LSA-R.S. 13:4243 provides the following:

A.At the time of the filing of the petition and foreign judgment, the judgment creditor shall file with the court an affidavit setting forth the name and last known address of the judgment debtor and the judgment creditor.
B. Promptly upon the filing of the petition, the foreign judgment, and the affidavit, the clerk shall send a notice by certified mail to the judgment debtor at the address given and shall make a note of the | ¿mailing in the record. The notice shall include the name and address of the judgment creditor and his attorney, if any. In addition, the judgment creditor may mail a notice of the filing to the judgment debtor and may file proof of mailing with the clerk. Failure to mail notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
C. No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until thirty days after the mailing of the notice of the filing of the foreign judgment.

Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dowl v. Redi Care Home Health Ass'n
31 So. 3d 596 (Louisiana Court of Appeal, 2010)
Morgan Bldg. & Spas, Inc. v. Cutrer
711 So. 2d 777 (Louisiana Court of Appeal, 1998)
Winston v. Flamingo Casino
746 So. 2d 622 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
80 So. 3d 617, 2011 WL 5983298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-colorado-v-schmidt-lactapp-2011.