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FIA Card Services, N.A. (Bank of America, N.A.) v. Moss

Court of Appeals of Louisiana, Third Circuit

June 26, 2019

FIA CARD SERVICES, N.A. (BANK OF AMERICA, N.A.)
v.
JEFFERSON JOSEPH MOSS, JR.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20130792 HONORABLE JULES D. EDWARDS, DISTRICT JUDGE

          JEREMY L. NUSLOCH JEFFREY M. TOEPFER LINLY L. HALL COUCH, CONVILLE & BLITT, LLC COUNSEL FOR PLAINTIFF/APPELLANT: FIA CARD SERVICES, N.A. (BANK OF AMERICA, N.A.)

          ARTHUR F. SCHAFER ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLEE: JEFFERSON JOSEPH MOSS, JR.

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, Phyllis M. Keaty, John E. Conery, and Candyce G. Perret, Judges.

          Keaty, J., dissents for the reasons assigned by Judge Perret.

          JOHN E. CONERY JUDGE.

         FIA Card Services, N.A. (FIA), now Bank of America, N.A. (Bank of America), appeals the trial court's February 5, 2018 judgment which denied Bank of America's motion to set aside the trial court's August 21, 2017 judgment dismissing this case based on abandonment. For the following reasons, we reverse and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         This case arises as a result of an unpaid credit card balance. FIA issued a credit card to the defendant, Jefferson J. Moss, Jr., who used the credit card to accrue an unpaid balance due of $12, 147.13. On February 13, 2013, FIA filed suit to collect the past due balance from Mr. Moss. FIA did not request in its petition either attorney fees or future interest, but it did include a basic request for admissions from Mr. Moss.

         In response to FIA's petition, on March 18, 2013, Mr. Moss filed the dilatory exceptions of nonconformity of the petition, lack of procedural capacity, vagueness and ambiguity, supported by memorandum. Mr. Moss's exceptions were fixed for hearing on April 15, 2013, but counsel for both parties agreed to continue the hearing on the exceptions without date.

         On June 25, 2013, FIA filed a motion to strike Mr. Moss's dilatory exceptions with accompanying memorandum in support of its position. FIA's motion was fixed for hearing on August 5, 2013 but was continued without date by agreement of the parties.

         On October 1, 2014, FIA merged with Bank of America, which is organized under the laws of Delaware. Mr. Moss's dilatory exceptions were still pending at the time of the merger, having been continued without date by agreement of the parties.

         On February 24, 2015, Bank of America filed its motion and order to substitute plaintiff, seeking to substitute itself in place of FIA due to the merger. The trial court granted Bank of America's motion on February 25, 2015. Mr. Moss's dilatory exceptions, including the lack of procedural capacity, remained pending at the time of the substitution of Bank of America as plaintiff.

         On June 22, 2017, almost two years and four months later, Bank of America moved to refix for a second time its motion to strike Mr. Moss's dilatory exceptions. A hearing on the Bank's motion to strike was fixed for August 21, 2017. At that hearing, counsel for Bank of America failed to appear and counsel for Mr. Moss made an oral motion for dismissal of the case based on abandonment.[1]

         At the August 21, 2017 hearing, the trial court found that more than three years had lapsed between the filing of FIA's petition on February 13, 2013 and the June 22, 2017 filing of Bank of America's second motion seeking to strike Mr. Moss's dilatory exceptions. The trial court ruled that the case was abandoned, since Bank of America failed "to take any step in its prosecution …. for a period of three years[.]" La.Code Civ.P. art. 561(A)(1). The trial court held that the February 24, 2015 motion and order to substitute Bank of America as the plaintiff, instead of FIA, signed by the trial court on February 25, 2017, did not serve to interrupt the three-year abandonment rule. See id.

         The trial court then granted the oral motion to dismiss, based on abandonment, at the August 21, 2017 hearing and dismissed Bank of America's case against Mr. Moss, assessing all costs to Bank of America in a judgment dated August 21, 2017. Pursuant to La.Code Civ.P. art. 1919, the clerk of court mailed the trial court's judgment on August 22, 2017 to counsel for Bank of America.

         Bank of America filed a motion and order to set aside the August 21, 2017 judgment of dismissal. A hearing was held on February 5, 2018, wherein the trial court denied Bank of America's motion to set aside and affirmed its dismissal of the case against Mr. Moss based on abandonment. The trial court found once again that the Bank of America's February 24, 2015 motion to substitute plaintiff was not a step in the prosecution of its case. Bank of America now timely appeals the trial court's February 5, 2018 judgment of dismissal.

         ASSIGNMENT OF ERROR

Bank of America asserts the following assignment of error on appeal:
The trial court erred in dismissing Bank of America's case as abandoned because the Motion and Order to Substitute Plaintiff was a timely step in the prosecution.

         LAW ...


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