Provident Bank v. Leslie

28 So. 3d 1196, 2002 La.App. 4 Cir. 1449, 2010 La. App. LEXIS 43, 2010 WL 114790
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2010
Docket2008-CA-1449
StatusPublished
Cited by2 cases

This text of 28 So. 3d 1196 (Provident Bank v. Leslie) 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
Provident Bank v. Leslie, 28 So. 3d 1196, 2002 La.App. 4 Cir. 1449, 2010 La. App. LEXIS 43, 2010 WL 114790 (La. Ct. App. 2010).

Opinions

EDWIN A. LOMBARD, Judge.

|,Appellant, Provident Bank, appeals a judgment from the Civil District Court for the Parish of Orleans, granting a “permanent default” judgment in favor of Ap-pellee, Lorina M. Leslie, in an executory proceeding pertaining to a mortgage agreement between appellee and Provident Bank, as mortgage assignee. For the reasons set forth below, we reverse the decision of the district court and remand for proceedings consistent with this opinion.

[1198]*1198 Factual and Procedural History

On October 17, 2002, Provident Bank filed a Petition for Executory Process against Lorina M. Leslie, for allegedly being in default of payments on a mortgage agreement pertaining to the property located at 7331 Arbor Drive in New Orleans since August of 1999. Said mortgage obligation was entered into by Ms. Leslie in September 1998. An order granting a writ of seizure and sale was signed on October 21, 2002. Prior to any judicial sale of the property, on February 4, 2003, Ms. Leslie [R p. 35] filed a Chapter 13 petition in the United States Bankruptcy Court for the Eastern District of Louisiana. On May 21, 2003, upon motion by Provident Bank, the Bankruptcy Court ordered a lifting of the automatic stay, fallowing Provident Bank to move forward with the seizure and sale of the mortgaged property.

Pursuant to a writ of seizure and sale, a sale of the property was scheduled for May 20, 2004. On May 18, 2004, appellee filed a “Petition for an Order Suspending the Seizure and Sale Order and/or for a Preliminary Injunction and/or a Permanent Injunction and/or for Damages and/or for the Return of the Seized Property” (hereafter referred to as appellee’s “petition for injunction”) in the same action in Civil District Court. In said petition, ap-pellee alleged that Provident Bank failed to meet the legal requirements for execu-tory process. Ms. Leslie further alleged that the mortgage note at issue was not signed by her and was a forgery. She raised a defense of continued payment and also requested a preliminary injunction halting any sale of the property pursuant to La.Code Civ. Proc. art. 2752. Finally, appellee made claims for monetary damages under La.Rev.Stat. § 51:1401, et seq., the Louisiana Unfair Trade Practices and Consumer Protection Law.

On July 20, 2004, appellee’s bankruptcy action was dismissed. On June 10, 2005, appellant filed a Motion and Order to Reset Sale as a result of the bankruptcy case being dismissed. Said order was granted to Provident Bank by the district court, and the writ of seizure and sale was reissued. On June 27, 2005, Ms. Leslie filed a “Motion and Order for Preliminary Default Judgment,” alleging that Provident Bank failed to file any responsive pleadings to her petition for injunction of May 18, 2004. An order granting a “preliminary default” was signed by the district court on June 28, 2005.

Also on June 27, 2005, appellee filed a Motion to Set Hearing Date and to Nullify Order that Writ of Seizure and Sale be reissued and Served Upon the | ¡¡Defendant. On June 28, 2005, the district court ordered that the reissue of seizure and sale be nullified, and that a hearing on Ms. Leslie’s petition for injunction of May 18, 2004 be set for October 21, 2005.

Although the hearing that appellee requested had been set, appellee proceeded to file a “Motion and Order for a Permanent Default Judgment” on July 18, 2005. The duty judge of the district court entered an order granting “a permanent default” against Provident Bank on the same date. On July 19, 2005, appellee appeared before the duty judge to offer a proces verbal in conjunction with said “permanent default” granted by the duty judge. Ap-pellee stated on record the procedural history since her petition for injunction, and described the service of process of that motion as well as the motion for default judgment on Provident Bank. The transcript does not reflect that any exhibits were entered at this hearing, and the record contains no attachments to the Motion and Order for a Permanent Default Judgment other than a proof of service of the preliminary default on July 12, 2005.

[1199]*1199On July 20, 2005, Provident Bank filed a Motion and Order for Extension of Time in which to provide responsive pleadings to Ms. Leslie’s petition for injunction. The district court granted a 30-day extension within which to file responsive pleadings on that same day. On July 25, 2005, Provident Bank then filed a Motion and Order for New Trial on the premise that appellee did not comply with the confirmation of default judgment requirements set forth in La.Code Civ. Proc. art. 1702. A hearing on appellant’s Motion for New Trial was set for August 26, 2005. Provident Bank also filed a Dilatory Exception of Prematurity and Improper Cumulation of Actions. A hearing on the same was set for October 21, 2005.

4On August 17, 2005, appellant filed a Rule to Show Cause why Sheriffs Sale Should Not be Reset, and a hearing on this motion was set for December 2, 2005 by the district court. Because of Hurricane Katrina, the August 26, 2005 hearing, the hearings of October 21, 2005, and the hearing of December 2, 2005 were not held.

On January 31, 2008, appellant filed a Motion and Order to Reset Motion for New Trial. Said hearing took place on July 11, 2008. The district court stated the signed order of July 18, 2005 “does not give you any merit. This judgment is just a recitation of the procedural process ... it has to give some relief. This doesn’t give any relief ... How would a person served with this judgment know what has been adjudicated?”

The district court asked appellee to “put it in the form of a judgment” and seek a “judgment on this default confirmation” of July 18, 2005 from the duty judge who signed it. The presiding judge (Magee, J.) did not consider the signed “permanent default” by the duty judge to be an appropriate confirmation of default. Therefore, the court denied Provident Bank’s Motion for New Trial as premature because “there is no judgment in this case.” Provident Bank then filed a Petition for Devolutive Appeal to appear before this Court.

Assignment of Error

Provident Bank, appellant, raises a sole assignment of error that the trial court erred by entering a confirmation of the default judgment on July 18, 2005 when Lorina M. Leslie presented no supporting evidence. Provident Bank states that it also brought forth this appeal to reverse the denial of its Motion for New Trial, but does not brief this Court on this aspect. Appellee argues that she has | .¡properly proved a confirmation of the default judgment under La.Code Civ. Proc. art. 1702(C).

Standard of Review

Questions of law are reviewed under the de novo standard. Louisiana Municipal Association v. State, 2004-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836; Sarpy v. ESAD, Inc., 2007-0347, p. 4 (La.App. 4 Cir. 9/19/07), 968 So.2d 736. In reviewing a confirmation of a default judgment, an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case. Balakrishnan v. Louisiana State University School of Medicine, 2005-1266, p. 3 (La.App. 4 Cir. 9/13/06), 939 So.2d 595, 597; Mossy Motors, Inc. v. Cameras America, 2002-1536, p. 3 (La.App. 4 Cir. 6/25/03), 851 So.2d 336, 339.

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Provident Bank v. Leslie
28 So. 3d 1196 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
28 So. 3d 1196, 2002 La.App. 4 Cir. 1449, 2010 La. App. LEXIS 43, 2010 WL 114790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provident-bank-v-leslie-lactapp-2010.