Bank of America, N.A. Versus Michael Anthony Alexander, Sr., (a/K/A Michael Anthony Alexander, Michael A. Alexander, Michael Alexander, Michael A. Alexander, Sr., Michael Alexander, Sr.) and Roxann Franklin Alexander, (a/K/A Roxann Franklin, Roxann F. Alexander, Roxann Alexander) ( 2020 )

BANK OF AMERICA, N.A. NO. 19-CA-290
VERSUS FIFTH CIRCUIT
MICHAEL ANTHONY ALEXANDER, SR., COURT OF APPEAL
(A/K/A MICHAEL ANTHONY ALEXANDER,
MICHAEL A. ALEXANDER, MICHAEL STATE OF LOUISIANA
ALEXANDER, MICHAEL A. ALEXANDER,
SR., MICHAEL ALEXANDER, SR.) AND
ROXANN FRANKLIN ALEXANDER, (A/K/A
ROXANN FRANKLIN, ROXANN F.
ALEXANDER, ROXANN ALEXANDER)
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 785-243, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
January 29, 2020
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson
AFFIRMED
JGG
FHW
RAC
COUNSEL FOR PLAINTIFF/APPELLEE,
BANK OF AMERICA, N.A.
Stephen W. Rider
Mark J. Chaney
Penny M. Daigrepont
COUNSEL FOR DEFENDANT/APPELLANT,
MICHAEL ANTHONY ALEXANDER, SR.
Michael Anthony Alexander, Sr.
GRAVOIS, J.
Defendant/appellant, Michael A. Alexander, Sr., who appears in this appeal
in proper person, appeals a default judgment rendered against him in this suit on a
note and to enforce a mortgage on real estate brought by plaintiff/appellee, Bank of
America, N.A., the holder of the note. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On June 28, 2018, Bank of America filed a Petition for Suit on a Note and
Enforcement of Mortgage on Real Estate against Michael Anthony Alexander, Sr.,
appellant herein, and Roxann Franklin Alexander, co-defendant, concerning
property located at 2220 Eastmere Street, Harvey, Louisiana. The petition was
accompanied by the attachments detailed below. The record reflects that personal
service was made upon Mr. Alexander on July 11, 2018. Because Roxann was
unable to be located or served, a curator was appointed to represent her. On
September 27, 2018, Bank of America moved for an order of preliminary default
against Mr. Alexander, which was entered that same day.
On January 25, 2019, a default judgment was confirmed and entered in favor
of Bank of America against Mr. Alexander. Notice of the judgment was mailed to
Mr. Alexander on January 28, 2019. On February 25, 2019, Mr. Alexander filed a
Motion to Vacate Default Judgment, citing “lack of sufficient evidence” and also
arguing “excusable neglect” on his part caused by “deaths in the family” which
caused him to delay in responding to the suit. The Motion to Vacate was denied by
the trial court without a hearing that same date. On March 7, 2019, Mr. Alexander
filed a Notice of Appeal of both the default judgment and the denial of his Motion
to Vacate Default Judgment. He also filed a Motion to Designate the record on
appeal on that date. Mr. Alexander was granted a devolutive appeal on March 11,
2019.
On appeal, Mr. Alexander asserts five assignments of error:
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1) the entry of the default judgment was improper because the certification
by plaintiff and the certification by the Clerk of Court were both deficient
as a matter of law;
2) the default judgment is void because the record fails to contain
evidentiary support for the judgment;
3) the default judgment is void because it is entered against only one
defendant, when more than one defendant was sued;
4) the district court abused its discretion by failing to consider Mr.
Alexander’s motion to set aside default judgment, which resulted in due
process violations against him; and
5) the default judgment is a “complete nullity” under Louisiana law.
STANDARD OF REVIEW
A court of appeal may not overturn a judgment of a trial court absent an
error of law or a factual finding that was manifestly erroneous or clearly wrong.
Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9 So.3d 815, 818.
The determination on appeal of whether evidence is sufficient to support a default
judgment is a factual one governed by the manifest error standard of review. Id.FIRST ASSIGNMENT OF ERROR
Deficient certifications
In his first assignment of error, Mr. Alexander argues that the entry of the
default judgment against him was improper because the required certifications
were deficient as a matter of law.
La. C.C.P. art. 1702.1 requires that two certifications accompany the written
motion for confirmation of default: first, a certification by the attorney that the suit
is on an open account, promissory note, or other negotiable instrument, on a
conventional obligation, or on a check dishonored for nonsufficient funds, and that
the necessary invoices and affidavit, note and affidavit, or check or certified
reproduction thereof are attached, as well as a certification by the attorney
indicating the type of service made on the defendant, the date thereof, and the date
the preliminary default was entered; and second, a certification by the clerk that
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the clerk examined the record on a particular date and that no answer or other
pleading has been filed within the time prescribed by law or the court.
Examination of the appellate record in the present case shows that both
certifications in the present case are attached to Bank of America’s motion for
confirmation of final judgment and both comply with La. C.C.P. art. 1702.1.
Contrary to Mr. Alexander’s assertions, it is the attorney’s certification, not the
clerk’s, that Article 1702.1 requires a description of the manner and date of service
of the suit upon the defendant. Article 1702.1 requires the clerk’s certification to
state only that the clerk examined the record for the filing of an answer or other
pleading, the time at which that examination was performed, and that no answer or
other pleading was filed as of that time. In this case, the attorney’s certification
duly describes the service on defendant and contains all the other information
required by Article 1702.1, including that a copy of the promissory note was
attached to the original petition, which it was. The clerk’s certification is likewise
in accordance with Article 1702.1. This assignment of error is without merit.
SECOND ASSIGNMENT OF ERROR
Insufficient evidence to support default judgment
In this assignment of error, Mr. Alexander argues that there is no evidentiary
support in the record for the default judgment. Specifically, he argues that
appellee, Bank of America, failed to present any evidence tending to show that
Bank of America had “standing” to bring this suit against appellant and Roxann
Alexander. He argues that most of the “uncertified” evidence attached to the
petition did not pertain to Bank of America. He contends that the evidence did not
support the finding that Bank of America owned the “lost” note. Finally, he argues
that the “insufficient” affidavits presented by Bank of America’s attorney are
“improper” because an attorney of record is prohibited from testifying in a case.
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A preliminary default must be confirmed by proof of the demand that is
sufficient to establish a prima facie case of the plaintiff’s claim. La. C.C.P. art.
1702(A). When a demand is based upon a conventional obligation, affidavits and
exhibits annexed to the petition “which contain facts sufficient to establish a prima
facie case shall be admissible, self-authenticating, and sufficient proof of such
demand.” La. C.C.P. art. 1702(B)(1); Charia v. Mungoven, 550 So.2d 939, 941
(La. App. 5th Cir. 1989). When a demand is based upon a conventional obligation,
proof by affidavit can be sufficient for confirming a default judgment. ASI Federal
Credit Union v. Leotran Armored Security, LLC, 18-341 (La. App. 5 Cir. 11/7/18),
259 So.3d 1141, 1148. When the claim is for amounts owed under a promissory
note, “an affidavit of the correctness thereof shall be prima facie proof.” La.
C.C.P. art. 1702(B)(3).
Bank of America attached the following exhibits to its petition:
1) a copy of the original promissory note in the sum of $92,791.00, dated
January 19, 1999, marked “Ne Varietur” for identification with a
Mortgage dated January 19, 1999, signed by the Alexanders and payable
to the order of Deep South Mortgage Company, Inc. (the “Note”),
marked as petitioner’s Exhibit “A’’;
2) a certified true copy of the Act of Mortgage, as recorded in the mortgage
records of Jefferson Parish, whereby the Alexanders granted a mortgage
on the Mortgaged Property as security for performance of their Note
obligations, marked as petitioner’s Exhibit “B”;
3) a copy of an Act of Correction dated January 14, 2000, marked as
petitioner’s Exhibit “C’’;
4) a copy of an Act of Correction dated April 6, 2000, marked as
petitioner’s Exhibit “D’’;
5) the original Amended and Restated Note, marked as petitioner’s Exhibit
“E’’;
6) a copy of a Loan Modification Agreement dated May 7, 2009, marked as
petitioner’s Exhibit “F”;
7) a copy of a Loan Modification Agreement dated January 15, 2015,
recorded February 25, 2015, marked as petitioner’s Exhibit “G”;
8) a copy of an Act of Endorsement of Note and Assignment of Note and
Mortgage dated January 19, 1999, as recorded in the mortgage records
of Jefferson Parish, whereby Deep South Mortgage Company, Inc.
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conveyed all of its right, title, and interest in and to the Note and the
Mortgage to Union Planters Bank, National Association, marked as
petitioner’s Exhibit “H’’;
9) a copy of a Notarial Endorsement and Assignment of Mortgage Note
dated September 11, 2007, as recorded in the mortgage records of
Jefferson Parish, whereby Union Planters Bank, N.A. assigned and
transferred all of its interest in the Note to Bank of New York as Trustee
for the Certificate Holders of Asset-Backed Certificates, Series 2003-3,
marked as petitioner’s Exhibit “I”;
10) a copy of a Corporation Assignment of Mortgage from Bank of New
York as Trustee for the Certificate Holders of Asset-Backed Certificates,
Series 2003-3 to Bank of America, N.A., marked as petitioner’s Exhibit
“J”;
11) a copy of a survey map of the subject property, marked as petitioner’s
Exhibit “K”;
12) petitioner’s affidavit of military status of defendants, marked as
petitioner’s Exhibit “L”; and
13) petitioner’s affidavit of compliance with all required notices of demand,
marked as petitioner’s Exhibit “M”.
Upon review, we find that the evidence presented by Bank of America
attached to its petition and to its motion for confirmation of final judgment is
sufficient to prove both Bank of America’s “standing” to bring this action, i.e., that
it was the last holder of the note for value, and to prove its case. As per La. C.C.P.
art. 1702(B)(1), the documents are admissible, self-authenticating, and sufficient
proof of the demand. Specifically, the attachments to the petition show that the
Alexanders signed the promissory note, secured by the mortgage on the
aforementioned immovable property, made payable to Deep South Mortgage
Company, Inc. Deep South assigned its interest in the note and mortgage to Union
Planters Bank, N.A., who later assigned its interest in the note and mortgage to
Bank of New York as Trustee, who later assigned its interest in the note and
mortgage to Bank of America. An affidavit attached to Bank of America’s motion
for confirmation of final judgment was signed by Nelson Eubanks, in his capacity
as an authorized representative of Bank of America’s servicer Pennymac Loan
Services, L.L.C., with personal knowledge of the loan represented by the note and
19-CA-290 5
mortgage, explaining that Bank of America was the last holder for value of the
note, that the note was in default as alleged in the petition, and that the original
note had been misplaced and/or lost by Bank of America and could not be
produced as evidence. Attached to the affidavit was a Certificate of Publication,
advertising the loss of the original note, that was published in The Times Picayune
on October 3, 2018, in compliance with La. R.S. 13:3741.1 This affidavit is not
legally deficient as Mr. Alexander claims. Likewise, that the attorney for Bank of
America submitted an Authentic Act of Notice and Acceleration is not a ground to
reverse the default judgment.
Considering the foregoing, this assignment of error is without merit.
THIRD ASSIGNMENT OF ERROR
Judgment “different in kind”
Mr. Alexander argues in this assignment of error that the judgment against
him is void because it does not also include judgment against co-defendant Roxann
Alexander, whom Bank of America also sued on the same note and mortgage. He
argues that the default judgment is therefore “different in kind” from the relief
demanded in the petition, as per La. C.C.P. art. 1703, which prayed for judgment
against both defendants.
A final default judgment shall not be different in kind from that demanded in
the petition. La. C.C.P. art. 1703. The amount of damages awarded shall be the
amount proven to be properly due as a remedy. Id.There is no legal prohibition that in a suit against multiple defendants, a
default judgment may not be rendered against only one of those defendants or less
than all of the defendants. The default judgment does not grant relief “different in
1
La. R.S. 13:3741 provides, in pertinent part:
In every case where a lost instrument is made the foundation of a suit or defense, it must
appear that the loss has been advertised within a reasonable time in a public newspaper and
proper means taken to recover the possession of the instrument; … .
19-CA-290 6
kind” within the meaning of La. C.C.P. art. 1703 because the judgment is against
fewer than all of the defendants sued in the original petition. The petition prayed
for judgment against Mr. Alexander for the amounts owed under the note, and for
recognition of Bank of America’s security interest in the mortgaged property.
Upon review, we find that the judgment grants the same relief as prayed for against
Mr. Alexander in Bank of America’s petition. See Green Tree Servicing, LLC v.
Edwards, 17-214 (La. App. 5 Cir. 11/15/17), 232 So.3d 688, 696. This assignment
of error is without merit.
FOURTH AND FIFTH ASSIGNMENTS OF ERROR
Denial of Motion to Vacate Default Judgment
In these assignments of error, Mr. Alexander argues that the trial court erred
by denying his Motion to Vacate Default Judgment on the same day that it was
filed, without conducting a hearing on the motion. He also argues that denial of his
Motion to Vacate without a hearing violated his right to be heard in court. He also
argues that the motion was based, in part, on some of the same issues he raises on
appeal, as well as the defense of “excusable neglect.” He argues that the default
judgment is thus null, void, and invalid.
A final default judgment is that which is rendered against a defendant who
fails to plead within the time prescribed by law. La. C.C.P. art. 1843. While a
default judgment may be attacked for procedural defects and vices of form, or ill
practices, a defendant who fails to properly make an appearance of record, once
properly served with the citation and petition, has received adequate notice that a
legal process has been initiated against him that may affect his legal rights. Green
Tree Servicing, LLC v. Edwards, supra, 232 So.3d at 696 (citing Mooring Fin.
Corp. 401(K) Profit Sharing Plan v. Mitchell, 08-1250 (La. App. 4 Cir. 6/10/09),
15 So.3d 311, 320). If that defendant fails to take any action, i.e., by filing a
responsive pleading, then a plaintiff may proceed with obtaining a preliminary
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default, and then after the appropriate legal delays, a judgment of default may be
properly confirmed against the defendant. Id.The requirements of due process vary according to the circumstances, as it
is, by nature, an imprecise ideal. Williams v. Bd. of Supervisors, Louisiana Cmty.
& Tech. Coll. Sys., 18-554 (La. App. 3 Cir. 5/15/19), 272 So.3d 84, 89. The
essential requirements of due process are notice and an opportunity to respond. Id.Upon review, we find that the record clearly demonstrates that Mr.
Alexander’s rights to procedural due process were not violated, as he was
personally served with the suit, and failed to act, timely or otherwise, to preserve
his legal rights. He has failed to show that he did not have the opportunity to
respond to Bank of America’s suit, between the time he was personally served on
July 11, 2018, through January 25, 2019, when Bank of America confirmed the
default judgment.
We further find that procedurally, the trial court did not err in denying the
Motion to Vacate without a hearing. In order to nullify a default judgment, one
must demonstrate how he was prevented or excused from asserting his defenses.
Mooring Fin. Corp. 401(K) Profit Sharing Plan v. Mitchell, supra, 15 So.3d at 319
(citing Jones v. Decuers, 320 So.2d 348, 350 (La. App. 4th Cir. 1975)). The proper
procedure to remedy a failure of proof is through a motion for a new trial and/or an
appeal, and not through an action for nullity. Adcock v. Ewing, 45,949 (La. App. 2
Cir. 1/26/11), 57 So.3d 434, 438 (citing Russland Enterprises, Inc. v. City of
Gretna, 98-676 (La. App. 5 Cir. 1/26/99), 727 So.2d 1223, writ denied, 99-0980
(La. 5/28/99), 743 So.2d 669). The failure to establish the prima facie case
required by La. C.C.P. art. 1702 is not a vice of form. A failure of proof must be
raised in a motion for a new trial or by appeal, not by an action for nullity. Id. at
438 (citing National Income Realty Trust v. Paddie, 98-2063 (La. 7/2/99), 737
So.2d 1270, 1271).
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Nullity actions are governed by La. C.C.P. arts. 2001-2006. La. C.C.P. art.
20022 provides that a judgment may be annulled for vices of form and such an
action may be asserted collaterally and may be brought at any time. However, Mr.
Alexander’s Motion to Vacate failed to assert any grounds for nullity for vices of
form under this Article. The nullity action provided by La. C.C.P. art. 20043 is not
a substitute for an appeal from a judgment that might be erroneous due to
insufficiency of evidence or misinterpretation of substantive law, but is a separate
remedy designed to afford relief against a judgment procured by methods viewed
with disdain by the judiciary. See State, Through Dep’t of Health & Human Res.,
Office of Family Sec., In Interest of Brown v. Beauchamp, 84-665 (La. App. 1 Cir.
6/25/85), 473 So.2d 323, 325-26, writ denied, 477 So.2d 1125 (La. 1985). It may
not be brought collaterally, but must be brought in a separate action, which Mr.
Alexander has not done.
The grounds asserted in the Motion to Vacate the judgment as null, which
were “excusable neglect,” as well as deficient certifications, lack of sufficient
evidence, and the failure to serve Roxann Alexander, are not grounds for nullity of
the judgment rendered against Mr. Alexander under La. C.C.P. arts. 2001-2006.
Mr. Alexander did not assert in the Motion to Vacate other grounds, which, if
proven, would have supported any action for nullity brought under La. C.C.P. arts.
2
La. C.C.P. art. 2002 provides:
A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who
has not waived objection to jurisdiction, or against whom a valid final default judgment
has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds
listed in this Article may be brought at any time.
3
La. C.C.P. art. 2004 provides:
A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the
discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action
to annul a judgment on these grounds.
19-CA-290 9
2002 or 2004, or which supported the granting of the relief requested by Mr.
Alexander therein on the grounds of “excusable neglect.” Accordingly, the trial
court did not err in denying the Motion to Vacate the default judgment without a
hearing, and such action did not violate Mr. Alexander’s due process rights.
While we may sympathize with Mr. Alexander’s personal family losses,
“excusable neglect” is not a legal grounds to vacate a default judgment. Further,
the record shows that Mr. Alexander had considerably more time than the Code of
Civil Procedure allows within which he could have filed responsive pleadings to
Bank of America’s suit. La. C.C.P. art. 1001 states that a defendant shall file his
answer within fifteen days after service of citation upon him, except as otherwise
provided by law. La. C.C.P. art. 1002 states that notwithstanding the provisions of
La. C.C.P. art. 1001, a defendant may file his answer or other pleading at any time
prior to the signing of a final default judgment against him. Bank of America did
not move to enter the preliminary default until September 27, 2018, which was
approximately two and a half months after Mr. Alexander was personally served
with the suit on July 11, 2018, and then did not move to confirm the default until
almost four months later, on January 25, 2019. Mr. Alexander could have filed an
answer or other responsive pleadings to the suit at any time up until that point in
time in order to avoid the default judgment. Unfortunately he did not do so and
therefore is not entitled to relief on these arguments. These assignments of error
are without merit.
CONCLUSION
For the foregoing reasons, the default judgment rendered on January 25,
2019 against Mr. Alexander is affirmed.
AFFIRMED
19-CA-290 10
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-290
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
STEPHEN W. RIDER (APPELLEE) MARK J. CHANEY (APPELLEE)
MAILED
MICHAEL ANTHONY ALEXANDER, SR. PENNY M. DAIGREPONT (APPELLEE) RYAN N. COX (APPELLEE)
(APPELLANT) L. CLAIRE MAYER (APPELLEE) ATTORNEY AT LAW
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