General Motors Acceptance Corp. v. Daniels
| Decision Date | 21 November 1979 |
| Docket Number | No. 64696,64696 |
| Citation | 377 So.2d 346 |
| Parties | GENERAL MOTORS ACCEPTANCE CORPORATION v. Donald J. DANIELS. |
| Court | Louisiana Supreme Court |
Teddy W. Airhart, Jr., Airhart & Copenhaver, Baton Rouge, for defendant-respondent.
E. Wade Shows, Adcock, Dupree & Shows, Baton Rouge, for plaintiff-applicant.
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The issue presented in this case is whether a purchaser of an automobile who ceases payment on the note and institutes an action in redhibition may enjoin the seizure and sale of the vehicle in a foreclosure suit by the holder of the note by simply alleging that the vehicle is possessed of redhibitory vices and that an action in redhibition is pending in another district court.
The case arose when in May of 1977 Donald J. Daniels purchased a new Chevrolet Chevette automobile from Lamar-Lane Chevrolet, Inc. of Gonzales, Louisiana. General Motors Acceptance Corporation acquired Daniels' promissory note and the accessory chattel mortgage on the vehicle. Displeased with the performance of the vehicle, Daniels failed to make the monthly payment in October, 1977 and each of the subsequent payments. In February of 1978 GMAC filed a petition for executory process in the Nineteenth Judicial District Court for the Parish of East Baton Rouge seeking the seizure and sale of the vehicle in satisfaction of the balance due on Daniels' promissory note. An order then issued directing the Sheriff of Ascension Parish to seize and sell the vehicle. Sometime before GMAC instituted the foreclosure proceedings, however, Daniels had filed an action in redhibition in the Twenty-Third Judicial District for the Parish of Ascension seeking rescission of the sale and return of the purchase price, with Lamar-Lane Chevrolet and General Motors Corporation as defendants. GMAC was not made a defendant in that proceeding.
On March 1, 1978 Daniels filed in the East Baton Rouge Parish executory proceeding a petition for a preliminary injunction seeking to enjoin the earlier ordered sale of the automobile. On March 10th rule for preliminary injunction was heard and, without taking evidence, and only upon Daniels' allegation that the vehicle was possessed of redhibitory vices and that there was pending in Ascension Parish an action in redhibition, the East Baton Rouge court granted the preliminary injunction. On September 29, 1978 a written judgment to this effect was signed, the rule made absolute, and Daniels ordered to post a $150 bond. Although the district court did not assign either written or oral reasons for judgment, it appears from the arguments of the parties that the court granted the injunction on the basis of a Federal Trade Commission Regulation which provides that the holder of a consumer credit contract is subject to all claims and defenses which the debtor may assert against the seller of the goods. 1
On appeal the First Circuit affirmed the trial court's judgment, rejecting one of GMAC's arguments to the effect that the purchaser had contractually waived his right to bring an action in redhibition by the language in the sales contract expressly waiving any express or implied warranties. That court concluded that the purchaser's waiver of warranty had not been established because no evidence had been presented that the waiver had been brought to the attention of the purchaser. 2 The Court of Appeal also relied upon language in Coco v. Mack Truck, 235 La. 1095, 106 So.2d 691 (1958) to find that enjoining the seizure and sale of a vehicle by the creditor is a proper remedy when that vehicle is the subject of an action in redhibition.
We granted writs to determine whether the lower courts erred. GMAC v. Daniels, 371 So.2d 1338 (La.1979). We now conclude, without reaching the issue of whether the purchaser waived his express or implied warranties, that they did so err. We therefore reverse the judgments and remand the case to the district court.
Under Article 2642 of the Code of Civil Procedure, a defense or procedural objection to an executory proceeding may be asserted through an injunction proceeding to arrest the seizure or sale as provided by Articles 2751 through 2754. Article 2752 provides that the injunction proceeding to arrest a seizure sale shall be governed by Articles 3601 through 3609 and 3612, except as provided in Article 2753. 3 The procedure to enjoin an executory proceeding is, therefore, governed by the general civil procedure articles relative to injunction, Articles 3601 through 3609.
Under Article 3609 a court may hear an application for a preliminary injunction upon verified pleading or supporting affidavits or may take proof as in ordinary cases. However, if the court is to hear the application upon affidavits, the court shall so order in writing and the defendant shall be served notice of this at the time the notice of the hearing is served. In this case no such procedure for limiting proof to affidavits was followed.
To obtain a preliminary injunction under Article 3601 the moving party must show that the injury, loss or damage he will suffer may be irreparable if the injunction does not issue. He must of course show that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits of the case. Price v. State, Department of Public Safety, License Control and Driver Improvement Division, 325 So.2d 759 (La.App. 1st Cir. 1976); Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1st Cir. 1970).
In this case the defendant made no showing that he was entitled to an injunction. In his petition for injunction he merely alleged that his vehicle was possessed of redhibitory defects and that there was pending an action in redhibition. The only evidence introduced at the hearing was a copy of the sale and chattel mortgage. Daniels introduced no evidence to indicate that he would be entitled to a rescission of the sale because of the vehicle's defects nor did he even allege the extent and nature of the vehicle's alleged redhibitory vices. It was the defendant's burden to prove as in an ordinary case that he was entitled to a preliminary injunction by showing with at least a prima facie case that he would win on the merits. Because he had not yet so proven, in either proceeding, he was not entitled to the preliminary injunction.
Respondent's reliance on Coco v. Mack Truck, supra, is not well-placed. In that case this Court did state...
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