Gumina v. Dupas

• Decision Date: 15 July 1965
• Docket Number: No. 1919,1919
• Citation: 178 So.2d 291
• Parties: A. J. GUMINA v. Peter T. DUPAS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 291

178 So.2d 291

A. J. GUMINA v. Peter T. DUPAS et al.

No. 1919.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1965.

Rehearing Denied Sept. 27, 1965.

Writ Refused Nov. 9, 1965.

John M. Holahan, New Orleans, for Ralph Dupas.

Sidney Goldman, Herman & Herman, David L. Herman, New Orleans, for A. J. Gumina.

Before SAMUEL, CHASEZ and BARNETTE, JJ.

SAMUEL, Judge.

This is an appeal by Ralph Dupas (hereinafter referred to as 'appellant') from a judgment on the merits dismissing his suit to annul a deficiency judgment previously rendered against him. The matter has been before this court on one other occasion, Gumina v. Dupas, La.App., 159 So.2d 377, an appeal taken from a judgment maintaining an exception of no cause of action. On that occasion we reversed and remanded on the ground that the petition alleged no appraisement of the property had been made prior to its sale under executory process and, the allegation being accepted as true for the purpose of passing on the exception, a deficiency judgment is void ab initio when based on a judicial sale made without appraisement under the provisions of LSA-R.S. 13:4106 and 4107.

The facts are not in dispute. Mr. and Mrs. Peter T. Dupas, parents of appellant, mortgaged certain real estate owned by them. The mortgage contained the usual pact de non alienando and confession of judgment. By intervention in the act of mortgage, appellant expressly obligated himself in solido with the mortgagors for the payment of the full amount of the indebtedness represented by the mortgage note. Appellant and his parents signed the mortgage note and a collateral hand note, each for $4,127.57, as makers. Subsequently, as a result of a failure to pay installments due, and after one such sale had been stopped by the plaintiff when he received a payment on the indebtedness from appellant, the mortgaged property was sold under executory process instituted by plaintiff as holder of the notes. Appellant and his parents are referred to as defendants in the petition for executory process.

The amount realized from the sale was insufficient to satisfy plaintiff's claim and on July 28, 1961 he filed a petition against Peter T. Dupas and appellant seeking judgment for the balance due. On August 3, 1961 appellant was duly cited and served in that suit. On September 15, 1961 appellant filed a petition in bankruptcy. He received his discharge in bankruptcy on December 18, 1961. On December 14, 1961, four days prior to the date of the discharge, a preliminary default was entered against appellant in the suit for a deficiency judgment. On December 17, 1962, one year after the date of the discharge, the preliminary default was confirmed and the judgment was rendered. Appellant did not file any pleadings or make any appearance in the suit for a deficiency judgment prior to the filing of his petition for nullity, nor was that proceeding for a deficiency judgment ever stayed or restrained by the bankruptcy court.

The schedule and discharge in bankruptcy were offered in evidence by appellant during the course of the trial of his suit to annul. Objection was made to the schedule on the ground that the same was not certified; no objection was made to the discharge which was certified. The trial court maintained the objection as to the schedule but gave counsel for appellant an opportunity to have the schedule properly certified and then placed in evidence. We are unable to find either the schedule or the discharge in the record. However, appellant's counsel informs us that the debt here involved was listed on the schedule as a deficiency judgment and appellee does not contend otherwise. In view of the conclusion we reach and of the fact that the information referred to is more favorable to appellant, we accept that information as correct for the purposes of this opinion and decree.

The petition for nullity, filed on May 24, 1963, alleges the sale under executory process was made without appraisement and that no service of any kind was made upon appellant in the executory proceeding. The petition also alleges the bankruptcy proceeding and discharge. In this court, in addition to the question of whether or not an appraisement of the property actually was made prior to the sale, appellant contends (1) the judgment sought to be annulled was rendered improperly because of the proceeding and discharge in bankruptcy, which discharge also bars execution of that judgment; (2) the executory proceeding was improper in that appellant was not served with a notice of demand or seizure; and (3) the judgment sought to be annulled was void ab initio because appellant was not served with a written notice directing him to name an appraiser in connection with the judicial sale of the mortgaged property as, it is argued, is required by LRS-R.S. 13:4363.

The record establishes beyond any doubt that the property in question was sold with appraisement. With the single exception of the fact that the sheriff's return on the writ did state appraisal had been waived, and this statement obviously was made in error, the record is devoid of any evidence to the contrary. The deputy sheriff who prepared the return testified she had made an error, the petition for executory process prays for an appraisal, the sheriff's deed itself shows the property was appraised, the oaths and appraisements of the two appraisers are in the record, one of the appraisers testified he had made the appraisement and it was admitted by counsel for appellant that the testimony of the other appraiser, who was present in court at that time, would have been to the same effect.

We are of the opinion that appellant's first contention, that the deficiency judgment should not have been rendered because of his proceeding and discharge in bankruptcy, is not well founded. A discharge in bankruptcy is neither payment nor an extinguishment of the debts discharged; it is simply a bar to their enforcement by legal proceedings. Helms v. Holmes, 4 Cir., 129 F.2d 263, 141 A.L.R. 1367; Robinson v. Exchange Nat. Bank of Tulsa, D.C.Okl., 28 F.Supp. 244. Under LSA-C.C.P. Art. 1005 the discharge is an affirmative defense which must be set forth in the answer. And where jurisdiction has been acquired by a state court before the filing of a petition in bankruptcy, the bankruptcy proceedings do not terminate an ordinary action to which the bankrupt is a party already pending in the state court or deprive that court of jurisdiction; the state court having jurisdiction of the action may proceed to judgment, despite the bankruptcy proceedings, unless the bankruptcy court exercises its power to issue a stay or restraining order. Norton, Assignee v. Switzer, 93 U.S. 355, 23 L.Ed. 903; New Orleans Compress Co. v. Katz, 185...