Opinion
NO. 2014 CA 1652
09-21-2015
ST. TAMMANY FEDERAL CREDIT UNION v. ANNETTE M. TORREGANO
WAYNE A. MAIORANA, JR. CHARLES A. MARTS METAIRIE, LA ATTORNEYS FOR PLAINTIFF-APPELLEE ST. TAMMANY FEDERAL CREDIT UNION M. H. GERTLER LEOLA M. ANDERSON LOUIS L. GERTLER NEW ORLEANS, LA ATTORNEYS FOR DEFENDANT-IN-RULE-APPELLANT PHILLIP WAYNE HARRISON ANNETTE M. TORREGANO SLIDELL, LA PRO SE DEFENDANT-APPELLEE
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana
Trial Court No. 2011-11555
Honorable Allison H. Penzato, Judge
WAYNE A. MAIORANA, JR.
CHARLES A. MARTS
METAIRIE, LA
ATTORNEYS FOR
PLAINTIFF-APPELLEE
ST. TAMMANY FEDERAL CREDIT
UNION
M. H. GERTLER
LEOLA M. ANDERSON
LOUIS L. GERTLER
NEW ORLEANS, LA
ATTORNEYS FOR
DEFENDANT-IN-RULE-APPELLANT
PHILLIP WAYNE HARRISON
ANNETTE M. TORREGANO
SLIDELL, LA
PRO SE
DEFENDANT-APPELLEE
BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. PETTIGREW, J.
This is an appeal of an August 4, 2014 judgment authorizing the plaintiff/appellee, St. Tammany Federal Credit Union (the credit union), to garnish the salary of the appellant, Phillip Wayne Harrison (Mr. Harrison). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2005, Annette M. Torregano entered into a retail installment contract and security agreement with the credit union to finance her purchase of a 2006 Honda Accord. Ms. Torregano fell behind on her payments; and on March 15, 2011, the credit union filed a petition for executory process against her, requesting seizure and sale of the car, with appraisal. The credit union's request was granted, and on June 29, 2011, the car was sold by sheriff's sale for $6,513.00. Since this amount did not fully satisfy Ms. Torregano's debt, the credit union filed a supplemental petition requesting a deficiency judgment for the principal sum of $10,880.47, plus unpaid interest, accrued interest, and interest that continued to accrue, subject to a credit for the proceeds from the sale of the car.
Ms. Torregano, despite being served with the supplemental petition, did not respond. The credit union then filed a motion for preliminary default. Again, Ms. Torregano failed to respond. As a result of Ms. Torregano's inaction, on April 19, 2012, a default judgment against her was confirmed. Notice of the judgment was sent by certified mail to Ms. Torregano on April 20, 2012. Ms. Torregano did not appeal the judgment, nor did she file a request for a new trial.
Further, Ms. Torregano failed to appear for a February 21, 2013 hearing on the credit union's motion to examine judgment debtor, despite having been personally served with notice thereof. Again, despite having been personally served, Ms. Torregano failed to appear for hearings on two rules for contempt filed by the credit union that had been set for April 18, 2013, and June 20, 2013.
On December 29, 2012, Ms. Torregano married the appellant herein, Mr. Harrison (after the default judgment had been entered against her). On May 2, 2014, the credit union filed a motion to authorize garnishment of Mr. Harrison's salary pursuant to Louisiana Civil Code article 2345, which provides that a separate obligation may be satisfied during the community property regime from community property. The credit union contended that this provision gave it the authority to garnish Mr. Harrison's wages, pursuant to the April 19, 2012 deficiency default judgment against Ms. Torregano, because his salary formed an asset of the community of acquets and gains that existed between him and Ms. Torregano. A hearing on the motion to authorize garnishment was held on July 24, 2014, at the conclusion of which the district court granted the credit union's motion. On August 4, 2014, the district court signed the "Order Authorizing Seizure/Garnishment." It is that judgment that Mr. Harrison appealed.
RULE TO SHOW CAUSE
After the record was lodged, this court issued a rule to show cause order, directing the parties to show cause whether this appeal should be dismissed because the August 4, 2014 judgment at issue fails to award a specific amount. On March 27, 2015, a separate panel of this court maintained the appeal, but specifically reserved the issue for a final determination by the appeal panel.
We find the appeal was properly maintained. It is undisputed that the judgment on appeal determined all of the issues raised in the credit union's motion for authorization to garnish Mr. Harrison's wages. Notably, the credit union did not seek garnishment under writ of fieri facias, rather, it only requested permission to garnish by declaratory judgment. See La. C.C.P. art. 1871. Thus, the judgment on appeal did not require the award of a specific monetary amount. Cf. La. C.C.P. art. 2411, et seq. Finally, a review of the jurisprudence reveals that the reason for obtaining this type of judgment - that does not provide a monetary award - is to comply with due process requirements of notice, given that the prior judgment establishing the debt owed, had been rendered only against Mr. Harrison's spouse, and not against Mr. Harrison. See Rayne State Bank and Trust Co. v. Fruge, 546 So.2d 637, 641-42 (La. App. 3 Cir. 1989), writ denied, 551 So.2d 1319 (La. 1989), and Colonial Bank v. Perkins, 528 So.2d 172, 173 (La. App. 4 Cir. 1987). Therefore, the appeal is maintained.
With respect to declaratory judgments, La. C.C.P. article 1871 provides:
Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.
ASSIGNMENTS OF ERROR
On appeal, Mr. Harrison asserts the following assignments of error:
1. Improper Authorization to Garnish Appellant's Wages
2. Opposition to Garnishment is a Proper Procedure to Challenge a Garnishment Order
3. The district court erred by not converting the opposition to a Motion for a New Trial and/or Nullity Action.
DISCUSSION/ANALYSIS
For the following reasons, we find that none of these assignments of error have merit. Primarily, all of Mr. Harrison's arguments in opposition to the motion for garnishment and in brief on appeal consist only of an attack on the validity of the April 19, 2012 deficiency judgment rendered against Ms. Torregano. That attack is based on alleged defects in the elements necessary for obtaining a deficiency judgment and a failure on the part of the credit union to comply strictly with the deficiency judgment act. Notably, Mr. Harrison presents no argument concerning the credit union's authority, or lack thereof, to garnish his salary on the basis that it forms part of the community property between himself and Ms. Torregano, the judgment debtor.
For example, in support of assignment of error number 1, Mr. Harrison argues that the appraisals on the seized vehicle were "extremely limited" and insufficient to represent the true value thereof, and that the advertisement for the sale of the vehicle lacked a sufficiently detailed description thereof, resulting in an unreasonable sales price. He additionally asserts that he was never served with notice of the executory proceeding. None of Mr. Harrison's arguments address the issue presented by the motion seeking authorization for garnishment, i.e., whether the credit union was authorized by law to cite him as a third party garnishee by virtue of his salary comprising the community property jointly owned by himself and his wife, the judgment debtor. Indeed, we find the law that governs the issue presented by the motion and on appeal clearly authorizes the credit union to garnish his salary, as community property, to satisfy the judgment rendered against his wife.
We note that service on him was not required nor would it have been proper, as he was not a party to that proceeding, nor were he and Ms. Torregano married at the time of that proceeding. Thus, there was no community property at issue at that time. Accordingly, the failure of the credit union to serve him with notice of the executory proceeding is wholly irrelevant to the issues raised by the filing of the motion to authorize garnishment of his salary.
Notably, Mr. Harrison does not dispute that he is married to Ms. Torregano or that they have a community property regime, nor does he dispute that his salary is properly classified as community property. Louisiana Civil Code Article 2363, pertaining to matrimonial regimes, states, in pertinent part, that "[a] separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime." Because the April 19, 2012 judgment was rendered before Mr. Harrison's marriage to Ms. Torregano, that debt was her separate obligation. However, La. C.C. art. 2345 provides that "[a] separate or community obligation may be satisfied during the community property regime from community property and from the separate property of the spouse who incurred the obligation." (Emphasis added.) Accordingly, we find that the district court did not err and the credit union was authorized to seek garnishment of Mr. Harrison's salary to satisfy the debt of Ms. Torregano.
See also, La. C.C. art. 2357, which provides that "[a]n obligation incurred by a spouse before or during the community property regime may be satisfied after termination of the regime from the property of the former community ...." (Emphasis added.)
With regard to assignment of error number 2, Mr. Harrison's reliance on La. C.C.P. art. 2411 as the legal basis for allowing him, as a third party being cited as a garnishee, to attack the validity of the underlying (April 19, 2012) deficiency judgment against Ms. Torregano is wholly misplaced, and the assignment of error lacks merit. Louisiana Code of Civil Procedure article 2411 allows a third party to file an opposition only to the garnishment proceedings, it does not allow an attack seeking to invalidate the underlying judgment that the judgment debtor seeks to satisfy by garnishment.
Louisiana Code of Civil Procedure article 2411 provides, in pertinent part:
A. (1) The judgment creditor ... may cause a third person to be cited as a garnishee to declare under oath what property he has in his possession or under his control belonging to the judgment debtor ....--------
B. (2) For wage garnishments ... if the garnishee or judgment debtor files no opposition to the garnishment proceedings .... (Em phasis added.)
Finally, we find that the district court did not err by not converting Mr. Harrison's opposition to a motion for a new trial or a nullity action. Again, a motion for new trial and/or for nullity would address the April 19, 2012 underlying judgment, and not the motion seeking the authority to garnish Mr. Harrison's salary. As argued by the credit union, and as correctly found by the district court, an opposition filed in response to a motion to authorize garnishment is not the appropriate procedural mechanism to contest the validity of the April 19, 2012 judgment. That judgment against Ms. Torregano is a final judgment that determined the entirety of the merits of the credit union's collection action via executory process against Ms. Torregano. See La. C.C.P. art. 1841. As such, it was an appealable judgment, and the time delays for appealing that judgment have run. Therefore, even if a motion for new trial or a nullity action had been filed by Mr. Harrison, or converted thereto by the district court (as contended by Mr. Harrison in assignment of error number 3), such motion and/or action would be untimely.
CONCLUSION
For all of the foregoing reasons, we find this appeal lacks merit. The district court did not err in rendering judgment on August 4, 2014, authorizing St. Tammany Federal Credit Union to garnish the salary of Phillip Wayne Harrison pursuant to La. C.C. art. 2345. Accordingly, that judgment is affirmed. All costs of this appeal are assessed to Phillip Wayne Harrison.
AFFIRMED.
HIGGINBOTHAM, J. concurring,
I respectfully concur in the result reached by the majority because Mr. Harrison challenges only the appropriateness of the deficiency judgment against Ms. Torregano, which is a final judgment. Mr. Harrison cannot interfere with the controversy between the original parties. On the other hand, Mr. Harrison does not challenge whether he was a proper third party garnishee. Therefore, it was not necessary to address whether La. Civ. Code art. 2345 gives the credit union the authority to seek garnishment of Mr. Harrison's wages for a separate debt incurred by Ms. Torregano before they were married.