Hibernia National Bank in New Orleans v. Con-Agg Equipment Leasing Corp.

478 So. 2d 976, 1985 La. App. LEXIS 10198
Louisiana Court of Appeal·Decided November 12, 1985·No. No. 85-CA-227·Published·Cited by 3 cases

Opinion

GRISBAUM, Judge.

This is an appeal from the trial court’s granting a deficiency judgment in a suit brought against the guarantor of two chattel mortgages. We affirm.

Two principal issues are presented. We confront first whether the trial court erred in concluding that the corporate resolution submitted in support of executory process meets the requirements prescribed in Louisiana Code of Civil Procedure article 2636(4) and, thus, can be deemed authentic evidence in an executory proceeding. Secondly, if the executory process was otherwise proper, we ask whether its exercise was made defective by improper service on the corporation.

The corporate resolution appears to be a liquid-process copy of an original. Forming part of the copied material is a certification paragraph that is signed by the corporate secretary. Although the issue is not free from doubt, Hibernia (in brief) maintains the resolution is an original document, signed by the corporation’s secretary, and this assertion is in no manner controverted. The document is not certified by a notary. Instead, it is sealed and signed by a notary and marked ne varietur for identification with one of the two acts of chattel mortgage foreclosed on by Hibernia. The notary nowhere purports to certify the resolution.

Our circuit has observed in Bank of St. Charles, etc. v. Great Southern Coach, 424 So.2d 462, 463 (La.App. 5th Cir.1982), citing Miller, Lyon & Co. v. Coppel, 36 La.Ann. 264 (La.1884), and our jurisprudence is replete with the legal axiom that requiring authentic evidence support every link in the chain of evidence in an exec-utory proceeding is the very foundation of executory process. To justify the order of seizure and sale, every muniment of title and every other link of evidence must be in authentic form or in a form deemed authentic by specific statute. Louisiana Code of Civil Procedure articles 2635-36; Fabacher v. Hammond Dairy Co., Inc., 389 So.2d 87, 91 (La.App. 4th Cir.1980); Progressive Bank & Trust Co. v. Dieco Specialty, Inc., [978] 878 So.2d 139, 141 (La.App. 1st Cir.1979). The Bank of St. Charles opinion further stated that it is evident from both our statutory law and our jurisprudence that among such requisite authentic links is a corporate resolution empowering a corporate officer to confect a mortgage agreement on behalf of the corporation. Bank of St. Charles at 463. See also Louisiana Code of Civil Procedure article 2636; Progressive Bank at 141; Fabacher at 93.

We are aware of only two avenues by which a corporate resolution can be clothed with authenticity: Louisiana Civil Code article 18331 and Louisiana Revised Statute 13:41032, the latter of relatively recent origin. Prior to the enactment of Act 148 of 1910, corporate resolutions bestowing contractual powers, with the exception of some railroad company resolutions, had to be drawn in authentic form (that is, executed before a notary and two witnesses). Interstate Trust & Banking Company v. Powell Brothers & Sanders Company, 126 La. 22, 52 So. 179 (La.1910); Bank of Leesville v. Wingate, 123 La. 386, 48 So. 1005 (La.1909). Only in the wake of Act 148, now substantially reproduced in Louisiana Revised Statute 13:4103, have corporate resolutions attended by lesser formality been deemed authentic for purposes of executory process. American Trust Company v. Crescent Ice Company, 133 La. 247, 62 So. 664 (La.1913). Even this lesser formality, however, prescribes an explicit form. Pertinent here, it requires the notary before whom the act of mortgage is passed to certify the copy of the authorizing corporate resolution presented him.

Our principal difficulty in the resolution of this dispute has arisen over whether we must apply the above formal requisite where not the “copy” of the resolution that the act strictly contemplates but the original thereof is submitted to fulfill the proof requisite for the executory proceeding.3 Whether this notarial certification properly applies to the original document necessarily, in turn, involves just what a notary certifies to upon a copy [979] taken from an original resolution. Having studied Louisiana Revised Statute 13:4103 and its predecessor provisions, as well as the concomitant jurisprudence at length without any appreciable elucidation, we finally conclude that the notarial certification in this instance serves a function identical to that afforded by certification under Louisiana Revised Statute 9:2758, which permits a notary to certify a copy of an authentic act as best evidence where the original is lost. In both instances, we conclude, the notary certifies the document “as being conformable to the record,” that is, to the original act. Such being the reason for and essence of the notary’s certification, to require its being inscribed on the original document would be to indulge in a quintessentially nonsensical exercise. Even the meticulous formalities of executory process do not require that we so far elevate form over function. Thus, the original resolution certified by the corporate secretary and submitted in support of executory process is to be deemed authentic.

The defendants’ second contention is likewise without merit. After one attempt at service on Con-Agg’s agent for service of process, Hibernia effected service through the Secretary of State.4 Before this court, defendant Davis asserts that Hibernia served Con-Agg through the Secretary of State with three-day notice of seizure and sale, with notice to appoint an appraiser, and with notice of the date of the sale when in fact Hibernia could have and should have served Con-Agg through its appointed agent or through a corporate officer.

As the defendants assert, notice of seizure is mandatory and not waivable. See Louisiana Code of Civil Procedure article 2721 and Comment (b) thereunder. Moreover, no waiver of appraisal or of notice of appraisal here appears. Thus, Hibernia was obliged to serve Con-Agg with the notices, the improper service of which Con-Agg complains.

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Hibernia National Bank in New Orleans v. Con-Agg Equipment Leasing Corp., 478 So. 2d 976, 1985 La. App. LEXIS 10198 (La. Ct. App. 1985).

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