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First Bank & Trust v. Sharp

Court of Appeals of Louisiana, First Circuit

February 20, 2018

FIRST BANK AND TRUST
v.
ELIZABETH M. COXE SHARP, JOHN TRAYLOR, AND CAROLYN RATCLIFF TRAYLOR

         On Appeal from The 21st Judicial District Court, Parish of Livingston, State of Louisiana Trial Court No. 133960 "he Honorable Robert H. Morrison III, Judge Presiding

          Sherman Q. Mack, Matthew H. Todd, Attorneys for Plaintiff/Appellant, John Traylor

          Frank J. Divittorio Attorney for Defendant/Appellee, First Bank and Trust

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         John Traylor appeals a summary judgment dismissing his petition to annul a deficiency judgment. We affirm.

         FACTS AND PROCEDURAL HISTORY

         First Bank and Trust is the holder of a promissory note secured by a mortgage and allegedly secured by a commercial guaranty signed by Traylor. After the maker of the note defaulted, First Bank used executory process to seize and sell the immovable property encumbered by the mortgage. The sale proceeds did not fully pay the indebtedness, so First Bank filed a petition for deficiency judgment against Traylor, seeking to enforce the commercial guaranty.

         Traylor was personally served with the petition on February 2, 2012, but did not file responsive pleadings. A default judgment was confirmed against him on March 6, 2012, and notice of the judgment was mailed the next day. Traylor did not appeal the judgment or file a motion for new trial. In response to a motion filed by First Bank, Traylor subsequently appeared in court with counsel and submitted to a judgment debtor examination.

         On April 22, 2016, almost two years after the judgment debtor examination, Traylor filed a petition seeking to annul the March 6, 2012 default judgment. According to Traylor's petition, First Bank, in confirming the judgment, (1) failed to introduce evidence establishing it was the holder in due course of the note, and more specifically, failed to prove it was the legal successor of the named payee; (2) failed to introduce the original instruments into evidence and, instead, attached the originals to the petition for executory process, which was not served on Traylor; and (3) failed to prove Traylor had any obligation under the guaranty, because the portion of the note secured by Traylor's guaranty was allegedly satisfied by the proceeds from the sheriffs sale. In reliance on the foregoing, Traylor alleged the default judgment is null for vices of form under Louisiana Code of Civil Procedure article 2002.

         First Bank filed a motion for summary judgment seeking a dismissal of Traylor's petition, arguing, in relevant part, that a default judgment cannot be annulled based on the purported insufficiency of the evidence offered to confirm the judgment. In support of the motion, First Bank submitted copies of the exhibits used to confirm the default judgment, including an affidavit confirming personal service of the petition on Traylor, the preliminary default, an affidavit attesting to the amount due, the promissory note, and the commercial guaranty. Traylor filed no exhibits in opposition to the motion.

         The trial court granted the motion, finding the grounds asserted by Traylor are not sufficient to support an action in nullity. In a judgment signed on August 29, 2016, the trial court dismissed the petition to annul with prejudice. Traylor appeals.[1]

         DISCUSSION

         After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that ...


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