FIA CARD SERVICES, N.A. (BANK OF AMERICA, N.A.)
JEFFERSON JOSEPH MOSS, JR.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. C-20130792 HONORABLE JULES D. EDWARDS,
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.)
F. SCHAFER ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLEE:
JEFFERSON JOSEPH MOSS, JR.
composed of Sylvia R. Cooks, Elizabeth A. Pickett, Phyllis M.
Keaty, John E. Conery, and Candyce G. Perret, Judges.
J., dissents for the reasons assigned by Judge Perret.
E. CONERY JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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
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
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
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.
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.
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
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.
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.
Bank of America asserts the following assignment of error on
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.