Colonial Bank v. Baptiste

• Decision Date: 10 April 1979
• Docket Number: No. 10157,10157
• Citation: 370 So.2d 681
• Parties: COLONIAL BANK v. Shirley N. BAPTISTE.
• Court: Court of Appeal of Louisiana — District of US

Page 681

370 So.2d 681

COLONIAL BANK v. Shirley N. BAPTISTE.

No. 10157.

Court of Appeal of Louisiana, Fourth Circuit.

April 10, 1979.

Rehearing Denied May 17, 1979.

Bruce M. Danner, New Orleans, for defendant-appellant.

Robert A. Mathis, Rantoul, and Richard J. Tomeny, Jr., Newman & Drolla, New Orleans, for plaintiff-appellee.

Before REDMANN, BOUTALL and SCHOTT, JJ.

BOUTALL, Judge.

This is an appeal from a deficiency judgment rendered by default.

The procedural posture of the case is as follows: Colonial Bank, appellee, filed a petition for executory process to seize and sell an automobile naming Shirley Baptiste as defendant. Appellee submitted the original promissory note and the act of sale and chattel mortgage as evidence. These were signed by Shirley Baptiste and Earl Baptiste. Pursuant to the order signed by the trial judge, the automobile was seized and sold, after appraisal, for the sum of $500.

The bank then filed a supplemental petition praying for a deficiency judgment in the amount of $3,227.19 representing the unpaid balance due minus the amount obtained from the sale. Submitted as evidence were the documents named above plus the Sheriff's return showing personal service of the notice of seizure and the request to appoint an appraiser on appellant. Appellee also introduced the order for the writ of seizure and sale, the judicial advertisement for the sale of the automobile, and the title sheet issued by the Louisiana Department of Public Safety showing the identification number of the vehicle. Appellant was personally served but did not respond. A default judgment was rendered against appellant for the alleged deficiency plus interest and costs. It is from this judgment that the appeal is taken.

Appellant contends that the deficiency judgment is null and void due to defects in the executory proceeding. Specifically, she argues that Earl Baptiste, her husband, should have been named as a party defendant since the automobile was community property and that there was an error in the serial number of the automobile as recited in the petition and chattel mortgage.

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. Code of Civil Procedure Article 1702. In order to obtain reversal of a deficiency judgment appellant must overcome the presumption that the judgment was rendered upon sufficient evidence and is correct. Ascension Builders v. Jumonville, 262 La. 519, 263 So.2d 875 (1972); Chaison v. LeBlanc, 363 So.2d 87 (La.App. 3rd Cir. 1978). In reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Eddie's Hardware, Inc. v. Rago, 320 So.2d 276 (La.App. 4th Cir. 1975).

Appellant asks that this court find that the debt was a community debt and that the husband should have been joined as a defendant. There is, however, no evidence in the record to...