Washington Bank Trust Co. v. Hodge

Full title: WASHINGTON BANK TRUST COMPANY v. CURTIS C. HODGE AND CLAUDE C. HODGE

Court: Court of Appeal of Louisiana, First Circuit

Date published: Aug 28, 1986

495 So. 2d 953 (La. Ct. App. 1986)

Opinion

No. CA/85/1278.

August 28, 1986.

APPEAL FROM TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON, STATE OF LOUISIANA, HONORABLE A. CLAYTON JAMES, J.

Dalee, Branch, Bogalusa, for Washington Bank Trust Co.

Richard E. Holley, Hammond, for Curtis C. Hodge and Claude C. Hodge.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

PER CURIAM.

The primary issue raised in this suit for deficiency judgment is whether authentic evidence of the mortgage was submitted in the prior executory proceedings to enforce the mortgage.

On April 20, 1981, defendants, Curtis C. Hodge and Claude C. Hodge, executed a promissory note in the principal amount of $14,500.00 in favor of plaintiff Washington Bank Trust Company. The note was payable in monthly installments of $272.96 and secured by a mortgage on certain property owned by Curtis Hodge in the City of Bogalusa. After a history of sporadic payments, defendants' account became delinquent in the amount of $12,971.81. On February 28, 1984, plaintiff filed (Suit No. 54,524-F) for executory process. After being appraised at $10,800.00, the property was seized and sold to plaintiff for $7,200.00.

This suit for deficiency judgment followed. Defendants answered the petition raising as a defense certain irregularities in the executory proceedings and reconvened for damages allegedly caused by the wrongful use of executory process. At the conclusion of the trial, the trial court dismissed plaintiff's demands on the basis that the copy of the mortgage submitted by plaintiff in suit No. 54,525-F was not sufficiently certified to be considered authentic evidence for the purposes of executory process. The trial court additionally dismissed defendants' reconventional demand on the basis that no damages had been proven. Both sides appealed.

Plaintiff contends the trial court erred in finding the copy of the mortgage was not sufficiently certified for purposes of executory process. We disagree. As noted by the trial court, the certification by the clerk of court attests to the recordation of the original mortgage in that office but does not certify whether the copy is a "true and correct" copy of the original mortgage.¹ Therefore, the copy of the mortgage is not deemed to be authentic and, since the strict rules for executory process were not complied with, deficiency judgment may not be maintained. First Guaranty Bank v. Ratcliff, 424 So.2d 289 (La. App. 1st Cir. 1982), writ denied, 432 So.2d 265 (La. 1983).

1 The certification at issue reads:
State of Louisiana CLERK'S Parish of Washington OFFICE
I hereby certify that the original of this instrument was filed for record 10:09 AM 1981 Recorded April 22, 1981 In Mortgage Book No. 319, Page No. 96963 of the Official Records of said Parish and State.
__________________________________________________ Clerk and Ex-Officio Recorder,
La.R.S. 13:4102(D) provides:
D. Whenever the law requires a certified copy of any document for purposes of executory process, a document filed with a certificate reading substantially as follows shall be deemed authentic:
STATE OF LOUISIANA ______________, Louisiana PARISH OF ___________ ______________, (Date)
I, ____________________, (Custodian of Notarial Records, Clerk of Court, Notary Public) for the Parish of __________, State of Louisiana, do hereby certify that the attached documents are true and correct copies of ______________________, dated the __________ day of _____________, 19__, consisting of ________ pages (executed before, attached to __________ executed before) ___________ ____________, a Notary Public of the Parish of ____________________, State of Louisiana, the original or certified copy of which document(s) is on file in my office.
___________________________ Name Title Address

Defendants contend the trial court erred in failing to award them damages for loss of reputation, embarrassment and (as to Curtis Hodge) loss of property. Pretermitting whether defendants had any right to such damages, we agree with the trial court that defendants failed to prove any damages.

For the foregoing reasons,² the judgment of the trial court is affirmed. Costs are to be divided equally.

2 A prior default judgment was obtained by plaintiff although defendants had filed an answer. However, neither side has raised this issue.

AFFIRMED.