Petition / Motion to Annul Default Judgment (Debt) - Louisiana

[____________] JUDICIAL DISTRICT COURT

FOR THE PARISH OF [____________]

STATE OF LOUISIANA

No. [____________] Division "[____]" Section "[____]"

PETITION TO ANNUL DEFAULT JUDGMENT

(Action in Nullity — La. Code Civ. Proc. arts. 2002 and 2004)

NOW INTO COURT, through undersigned counsel (or appearing in proper person), comes [____________] ("Petitioner-in-Nullity" or "Defendant-in-Judgment"), who respectfully petitions this Court to annul and set aside the default judgment rendered against Petitioner-in-Nullity on [__/__/____] in favor of [____________] ("Defendant-in-Nullity" or "Plaintiff-in-Judgment"), to stay and recall any execution, seizure, or garnishment issued upon that judgment, and to permit Petitioner to answer and defend the underlying demand on the merits, and in support represents:

I. THE DEFAULT JUDGMENT SOUGHT TO BE ANNULLED

1. On [__/__/____], a default judgment was rendered/confirmed against Petitioner in this proceeding in the amount of $[____________] in principal, plus $[________] interest, $[________] costs, and $[________] attorney's fees, for a total of $[____________].

2. The underlying suit was a debt-collection demand. Plaintiff-in-Judgment alleged a consumer debt purportedly arising from [credit card / open account / money lent / installment loan / medical / other: ____________], allegedly originated by [original creditor: ____________] under account no. [____________].

3. The default judgment was rendered because Petitioner [did not file an answer within the delay allowed by La. C.C.P. art. 1001 / did not appear]. Petitioner first learned of the judgment on [__/__/____] by [notice of seizure / garnishment / bank account freeze / mail / other: ____________].

II. APPLICABLE LAW — ACTION IN NULLITY

4. A final judgment may be annulled for a vice of form under La. C.C.P. art. 2002 or for a vice of substance (fraud or ill practices) under La. C.C.P. art. 2004.

5. Vice of form (absolute nullity) — La. C.C.P. art. 2002(A). A final judgment "shall be annulled if it is rendered: ... (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid default judgment has not been taken." Such an action "may be brought at any time" (art. 2002(B)), except as provided in art. 2003.

6. Vice of substance (relative nullity) — La. C.C.P. art. 2004(A). "A final judgment obtained by fraud or ill practices may be annulled." The action "must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices" (art. 2004(B)), and the court "may award reasonable attorney fees incurred by the prevailing party" (art. 2004(C)). A judgment may be annulled for ill practices where (1) the circumstances under which it was rendered show the deprivation of legal rights of the litigant seeking relief, and (2) enforcement would be unconscionable and inequitable.

7. Default-confirmation requirements — La. C.C.P. art. 1702. A default judgment may be rendered only where the plaintiff "establishes a prima facie case by competent and admissible evidence that is admitted on the record," and only after any notice required by art. 1702(A)(2)-(5) is given. When the demand is on an open account, promissory note, or other negotiable instrument, an affidavit of correctness is prima facie proof (art. 1702(B)(3)). A default confirmed without the proof or notice required by art. 1702 was not validly taken and is subject to annulment for a vice of form (art. 2002(A)(2)).

III. GROUNDS FOR NULLITY

A. ☐ Vice of Form — No Valid Service / No Valid Default Judgment Taken [La. C.C.P. art. 2002(A)(2)]

☐ Petitioner was never cited and served with process as required by La. C.C.P. arts. 1201, 1231-1235.

☐ Service was attempted at an address where Petitioner did not reside or was not domiciled as of the date of purported service: [____________].

☐ Purported domiciliary service was left with a person not of suitable age and discretion residing in Petitioner's domicile, or with a person not authorized to receive service.

☐ The return of service is false or defective.

☐ Petitioner did not waive objection to jurisdiction and did not voluntarily appear.

☐ No valid default judgment was taken: Plaintiff-in-Judgment failed to establish a prima facie case by competent, admissible evidence under La. C.C.P. art. 1702, and/or failed to give the notice required by art. 1702(A)(2)-(5) before confirming the default.

The judgment is therefore an absolute nullity under art. 2002(A)(2) and may be annulled at any time.

B. ☐ Vice of Substance — Fraud or Ill Practices [La. C.C.P. art. 2004]

☐ Plaintiff-in-Judgment obtained the judgment through fraud or ill practices — e.g., a false return of service, a "robo-signed" or false affidavit of correctness, concealment of payment or of prescription, or misrepresentation of the debt's existence, amount, or ownership.

☐ The circumstances deprived Petitioner of a legal right, and enforcement of the judgment would be unconscionable and inequitable.

This action is brought within one year of Petitioner's discovery of the fraud or ill practices on [__/__/____].

IV. MERITORIOUS DEFENSE TO THE UNDERLYING DEMAND

Petitioner has one or more meritorious defenses to the underlying debt that would be asserted upon annulment:

☐ Liberative prescription / time-barred debt. The alleged obligation was prescribed before suit was filed. Louisiana applies a three-year prescription to an open account (La. Civ. Code art. 3494(4)) and to money lent (art. 3494(3)), and a ten-year prescription to a personal action on a contract (art. 3499). The obligation became exigible (or last payment was made) on or about [__/__/____], more than the applicable period before suit. Confirm the controlling period and accrual date.

☐ Wrong defendant / identity theft / mistaken identity. Petitioner is not the person who incurred the obligation; the account was opened or used through identity theft or mistaken identity. Petitioner did not contract for, use, or authorize the account.

☐ Incorrect amount / unauthorized charges; usury. The amount of the judgment is incorrect, inflated, or includes interest, fees, or charges not authorized by the agreement or by law.

☐ Extinguishment — payment, remission, novation, discharge. The obligation has been extinguished by payment, remission, novation, compromise/transaction, release, or discharge in bankruptcy (Case No. [____________], discharged [__/__/____]). See La. Civ. Code arts. 1854-1905.

☐ No right of action / lack of standing — no proof of assignment. Plaintiff-in-Judgment is a debt buyer or assignee that has not proven a complete, unbroken chain of title from the original creditor, including each bill of sale and an assignment specifically identifying Petitioner's account (La. C.C.P. art. 927(A)(6); La. R.S. 9:3534.1).

☐ Potential separate FDCPA claim—not by itself a defense that the debt is invalid. If a qualifying debt collector failed to provide the notice or verification required by 15 U.S.C. § 1692g, Defendant may have a separate civil claim under 15 U.S.C. § 1692k. A formal pleading is not an “initial communication” under § 1692g(d). Plead such a claim only if procedurally permitted, and evaluate any state-law issue separately.

☐ No account documentation; inadmissible records. Plaintiff-in-Judgment cannot produce the agreement, account statements, or admissible business records establishing the existence, ownership, or amount of the obligation (La. Code Evid. arts. 803(6), 902(11)).

☐ Other meritorious defense: [____________].

The factual basis for the selected defense(s) is set out in Petitioner's accompanying Affidavit (Section VIII).

V. REQUEST TO STAY EXECUTION, SEIZURE, AND GARNISHMENT

8. Petitioner requests that the Court stay and recall any execution, fieri facias, seizure, or garnishment issued upon the default judgment pending determination of this action in nullity.

9. Plaintiff-in-Judgment has [☐ commenced / ☐ threatened] post-judgment enforcement by [☐ wage garnishment / ☐ bank-account seizure / ☐ writ of fieri facias / ☐ other: ____________], served or filed on or about [__/__/____]. Continued enforcement would cause Petitioner irreparable harm by [seizing exempt wages or funds / depriving Petitioner of funds needed for necessities].

10. Petitioner requests that the Court order that any funds already withheld be held pending the Court's ruling or returned to Petitioner.

VI. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully prays that:

A. This Petition to Annul be deemed good and sufficient, that Defendant-in-Nullity be duly cited and served, and that, after due proceedings, there be judgment ANNULLING and SETTING ASIDE the default judgment rendered on [__/__/____], pursuant to La. C.C.P. arts. 2002 and/or 2004;

B. The Court STAY, RECALL, and DISSOLVE any execution, seizure, or garnishment issued upon the judgment, and order the return of any funds wrongfully withheld;

C. Petitioner be permitted to file an answer and defend the underlying demand on the merits;

D. If the judgment is annulled for fraud or ill practices under art. 2004, Petitioner be awarded reasonable attorney fees under art. 2004(C);

E. Petitioner be awarded all costs of these proceedings; and

F. Petitioner be granted all such other and further relief, general and equitable, as justice may require.

VII. VERIFICATION / PROPOSED ORDER

A proposed Order/judgment annulling the default judgment and staying execution is submitted herewith for the Court's consideration.

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Petitioner, in proper person ☐ Attorney for Petitioner
Louisiana Bar Roll No. (if attorney): [____________]
[Firm Name, if any]
[Street Address]
[City], Louisiana [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

VIII. AFFIDAVIT OF PETITIONER IN SUPPORT

STATE OF LOUISIANA
PARISH OF [____________]

BEFORE ME, the undersigned Notary Public, personally came and appeared [____________], who, being duly sworn, did depose and state:

1. I am the Petitioner-in-Nullity (Defendant-in-Judgment) in this matter. I am over the age of 18 and competent, and I make this affidavit on personal knowledge.

2. I first learned of this lawsuit and/or the default judgment against me on [__/__/____], when [____________].

3. [Vice of form:] I was not cited and served with process in this matter as required by law. ☐ I was not domiciled at and did not reside at the address where service was attempted ([____________]) on the date of purported service. ☐ The person who allegedly received service was not authorized and did not deliver the papers to me. ☐ I did not waive objection to jurisdiction and did not appear. ☐ Other: [____________].

4. [Failure to confirm validly:] To my knowledge, Plaintiff-in-Judgment did not establish a prima facie case by competent, admissible evidence and/or did not give the notice required by La. C.C.P. art. 1702 before confirming the default.

5. [Meritorious defense:] I have a valid defense to the underlying demand, namely: [____________]. (For example: I do not owe this obligation; the account is not mine; it was paid/settled/discharged; the amount is wrong; the obligation was prescribed; or Plaintiff-in-Judgment does not own the debt.)

6. I act promptly and in good faith and, if the judgment is annulled, I will answer and defend on the merits.

/s/ [____________________________________]
[____________], Affiant

SWORN TO AND SUBSCRIBED before me this [____] day of [____________], 20[____].

____________________________________
Notary Public
[Printed name; Bar/Notary ID No.]
My commission expires: [__/__/____ — or "at death" if a Louisiana attorney-notary]

IX. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a copy of the foregoing Petition to Annul Default Judgment (with affidavit and proposed Order) was served upon counsel of record for Defendant-in-Nullity (or upon Defendant-in-Nullity, if unrepresented), in accordance with La. C.C.P. arts. 1313-1314, by:

☐ Court electronic-filing system (electronic service on counsel of record)
☐ United States Mail, First-Class, postage prepaid
☐ Hand / Personal Delivery
☐ Electronic Mail (by agreement / where permitted)
☐ Facsimile Transmission

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

LOUISIANA PRACTICE NOTES

• Vehicle: A Louisiana default judgment is attacked by an action in nullity — ordinarily a petition with citation and service, brought in the court that rendered the judgment (La. C.C.P. arts. 2002-2006). Where relief is appropriate in the same proceeding, a contradictory motion may be used; confirm the correct vehicle.
• Vice of form (art. 2002): Judgment against a defendant not served as required by law (who did not waive objection), or against whom no valid default judgment was taken, is an absolute nullity that may be annulled at any time (art. 2002(B)), subject to art. 2003 (acquiescence bar).
• Vice of substance (art. 2004): Judgment obtained by fraud or ill practices is a relative nullity; the action must be brought within one year of discovery (art. 2004(B)); attorney fees may be awarded (art. 2004(C)).
• Art. 1702 confirmation: A default may be confirmed only on a prima facie case by competent, admissible evidence and after any required notice; on open accounts/notes, an affidavit of correctness is prima facie proof (art. 1702(B)(3)). A confirmation that ignored art. 1702 supports a vice-of-form attack.
• Terminology: Louisiana is a civil-law state — use "Petition," "Parish," "annul/nullity," "prescription," and "exception."
• Prescription on debt: open account — 3 years (La. Civ. Code art. 3494(4)); money lent — 3 years (art. 3494(3)); personal action on a contract — 10 years (art. 3499).
• Stay/seizure: A nullity action does not automatically suspend execution; seek an order staying enforcement or injunctive relief against seizure (see La. C.C.P. art. 2298 et seq.). Note wage/funds exemptions (La. R.S. 13:3881; federal benefit exemptions).

SOURCES AND REFERENCES

• La. C.C.P. art. 2002 (annulment for vices of form; action may be brought at any time): https://www.legis.la.gov/legis/Law.aspx?d=111368
• La. C.C.P. art. 2004 (annulment for vices of substance — fraud or ill practices; one year from discovery; attorney fees): https://www.legis.la.gov/legis/Law.aspx?d=111370
• La. C.C.P. art. 1702 (default judgment; prima facie case; notice; open account/note proof): https://law.justia.com/codes/louisiana/code-of-civil-procedure/article-1702/
• First Bank & Trust v. Sharp, 2017 CA 0284 (La. App. 1 Cir. 2/20/2018) — petition to annul default judgment for vice of form under art. 2002: https://caselaw.findlaw.com/court/la-court-of-appeal/1919344.html
• La. Civ. Code art. 3494 (three-year prescription — open account/money lent): https://www.legis.la.gov/legis/Law.aspx?d=110518
• La. R.S. 13:3881 (exemptions from seizure).
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/