HLS 20RS-790 ORIGINAL
2020 Regular Session
HOUSE BILL NO. 648
BY REPRESENTATIVE ROBBY CARTER
JUDGMENTS: Provides relative to final default judgments
1 AN ACT
2To amend and reenact Code of Civil Procedure Articles 253.3(A)(3), 1702 (A) and (E),
3 1702.1, 1704, 4904(A) and 4921(A), R.S. 13:3205(introductory paragraph) and
4 4990, and R.S. 23:1316.1(A) and to repeal Code of Civil Procedure Articles 1701
5 and 1704(D) and R.S. 23:1316, relative to default judgments; to eliminate the
6 preliminary default and confirmation of preliminary default; to provide for rendering
7 a final default judgment; to provide for proof; to provide for the court record; and to
8 provide for related matters.
9Be it enacted by the Legislature of Louisiana:
10 Section 1. Code of Civil Procedure Articles 253.3(A)(3), 1702 (A) and (E), 1702.1,
111704, 4904(A) and 4921(A) are hereby amended and reenacted to read as follows:
12 Art. 253.3. Duty judge exceptions; authority to hear certain matters
13 A. In any case assigned pursuant to Article 253.1, a duty judge shall only
14 hear and sign orders or judgments for the following:
15 * * *
16 (3) Entry of preliminary defaults, confirmation of defaults Final default
17 judgments, stipulated matters, examination of judgment debtors, orders to proceed
18 in forma pauperis, orders allowing the filing of supplemental and amending petitions
19 when no trial date has been assigned, orders allowing incidental demands when no
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1 trial date has been assigned, orders allowing additional time to answer, and judicial
2 commitments.
3 * * *
4 Art. 1702. Confirmation of preliminary default Final default judgment
5 A. A preliminary default must be confirmed by proof of the demand that is
6 sufficient to establish a prima facie case and that is admitted on the record prior to
7 the entry of a final default judgment. The court may permit documentary evidence
8 to be filed in the record in any electronically stored format authorized by the local
9 rules of the district court or approved by the clerk of the district court for receipt of
10 evidence. If no answer or other pleading is filed timely, this confirmation may be
11 made after two days, exclusive of holidays, from the entry of the preliminary default.
12 When a preliminary default has been entered against a party that is in default after
13 having made an appearance of record in the case, notice of the date of the entry of
14 the preliminary default must be sent by certified mail by the party obtaining the
15 preliminary default to counsel of record for the party in default, or if there is no
16 counsel of record, to the party in default, at least seven days, exclusive of holidays,
17 before confirmation of the preliminary default. If a defendant in the principal or
18 incidental demand fails to answer or file other pleadings within the time prescribed
19 by law or by the court, and the plaintiff establishes a prima facie case that is admitted
20 on the record, a final default judgment in favor of the plaintiff may be rendered.
21 * * *
22 E. Notwithstanding any other provisions of law to the contrary, when the
23 demand is for divorce under Civil Code Article 103(1) or (5), whether or not the
24 demand contains a claim for relief incidental or ancillary thereto, a hearing in open
25 court shall not be required unless the judge, in his discretion, directs that a hearing
26 be held. The plaintiff shall submit to the court an affidavit specifically attesting to
27 and testifying as to the truth of all of the factual allegations contained in the petition,
28 the original and not less than one copy of the proposed final default judgment, and
29 a certification which shall indicate indicating the type of service made on the
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1 defendant, and the date of service, the date a preliminary default was entered, and a
2 certification by the clerk that the record was examined by the clerk, including the
3 date of the examination, and a statement that no answer or other pleading has been
4 filed. If the demand is for divorce under Civil Code Article 103(5), a certified copy
5 of the protective order or injunction rendered after a contradictory hearing or consent
6 decree shall also be submitted to the court. If no answer or other pleading has been
7 filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry
8 of a preliminary default, review the affidavit, proposed final default judgment, and
9 certification, and render and sign the proposed final default judgment, or direct that
10 a hearing be held. The minutes shall reflect rendition and signing of the final default
11 judgment.
12 Art. 1702.1. Confirmation of preliminary default Final default judgment without
13 hearing in open court; required information; certifications
14 A. When the plaintiff seeks to confirm a preliminary default a final default
15 judgment without appearing for a hearing in open court as provided in Article
16 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall
17 include in an itemized form with a written motion for confirmation of preliminary
18 default final default judgment and proposed final default judgment a certification that
19 the suit is on an open account, promissory note, or other negotiable instrument, on
20 a conventional obligation, or on a check dishonored for nonsufficient funds, and that
21 the necessary invoices and affidavit, note and affidavit, or check or certified
22 reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or
23 2782, the attorney shall certify that fact and the fact that the number of days required
24 by R.S. 9:2781(A) or 2782(A), respectively, have elapsed since demand was made
25 upon the defendant.
26 B. The certification shall indicate the type of service made on the defendant,
27 and the date of service, and the date a preliminary default was entered, and shall also
28 include a certification by the clerk that the record was examined by the clerk,
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1 including therein the date of the examination and a statement that no answer or other
2 pleading has been filed within the time prescribed by law or by the court.
3 * * *
4 Art. 1704. Confirmation of preliminary default Final default judgment in suits
5 against the state or a political subdivision
6 A. Notwithstanding any other provision of law to the contrary, prior to
7 confirmation of a preliminary default the court rendering a final default judgment
8 against the state or any of its departments, offices, boards, commissions, agencies,
9 or instrumentalities, a certified copy of the minute entry constituting the preliminary
10 default entered pursuant to Article 1701, together with a certified copy of the petition
11 or other demand, shall be sent by the plaintiff or his counsel to the attorney general
12 by registered or certified mail, or shall be served by the sheriff personally upon the
13 attorney general or the first assistant attorney general at the office of the attorney
14 general. If the minute entry and the petition are is served on the attorney general by
15 mail, the person mailing such items the petition shall execute and file in the record
16 an affidavit stating that these items have the petition has been enclosed in an
17 envelope properly addressed to the attorney general with sufficient postage affixed,
18 and stating the date on which such envelope was deposited in the United States mail.
19 In addition the The return receipt shall be attached to the affidavit which was filed
20 in the record.
21 B. If no answer or other pleading is filed during the fifteen days immediately
22 following the date on which the attorney general or the first assistant attorney general
23 received notice of the preliminary default as provided in Paragraph A of this Article,
24 a preliminary default entered against the state or any of its departments, offices,
25 boards, commissions, agencies, or instrumentalities may be confirmed by proof as
26 required by Article 1702.
27 C. Notwithstanding any other provision of law to the contrary, prior to
28 confirmation of a preliminary default the court rendering a final default judgment
29 against a political subdivision of the state or any of its departments, offices, boards,
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1 commissions, agencies, or instrumentalities, a certified copy of the minute entry
2 constituting the preliminary default entered pursuant to Article 1701, together with
3 a certified copy of the petition or other demand, shall be sent by the plaintiff or his
4 counsel by registered or certified mail to the proper agent or person for service of
5 process at the office of that agent or person. The person mailing such items the
6 petition shall execute and file in the record an affidavit stating that these items have
7 the petition has been enclosed in an envelope properly addressed to the proper agent
8 or person for service of process, with sufficient postage affixed, and stating the date
9 on which such envelope was deposited in the United States mail. In addition the The
10 return receipt shall be attached to the affidavit which was filed in the record.
11 * * *
12 Art. 4904. Final default judgment in parish and city courts
13 A. In suits in a parish court or a city court, if the defendant fails to answer
14 timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final
15 default judgment in favor of plaintiff may be rendered. No preliminary default is
16 necessary.
17 * * *
18 Art. 4921. Final default judgment; justice of the peace courts; district courts with
19 concurrent jurisdiction
20 A. If the defendant fails to answer timely, or if he fails to appear at the trial,
21 and the plaintiff proves his case, a final default judgment in favor of plaintiff may
22 be rendered. No preliminary default is necessary.
23 * * *
24 Section 2. R.S. 13:3205(introductory paragraph) and 4990 are hereby amended and
25reenacted to read as follows:
26 §3205. Default Final default judgment; hearings; proof of service of process
27 No preliminary default or final default judgment may be rendered against the
28 defendant and no hearing may be held on a contradictory motion, rule to show cause,
29 or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq.,
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1 until thirty days after the filing in the record of the affidavit of the individual who
2 has done any of the following:
3 * * *
4 §4990. Diligence in locating co-owners; known co-owners made parties
5 In any judicial proceeding in which real property is sought to be partitioned
6 upon the trial of the cause upon the merits or upon confirmation of any preliminary
7 default rendering a final default judgment therein, due proof shall be made of a
8 diligent effort on the part of the plaintiff to locate all co-owners of the property to be
9 partitioned and that all known co-owners have been made parties thereto.
10 Section 3. R.S. 23:1316.1(A) is hereby amended and reenacted to read as follows:
11 §1316.1. Confirmation of preliminary default Final default judgment
12 A. A preliminary default on behalf of any party at interest must be confirmed
13 by proof of the demand sufficient to establish a prima facie case. If no answer or
14 other pleading is filed timely, this confirmation may be made after two days,
15 exclusive of holidays, from the entry of the preliminary default. If a defendant in the
16 principal or incidental demand fails to answer or file other pleadings within the time
17 prescribed by law or the time extended by the workers' compensation judge, the
18 plaintiff establishes a prima facie case that is admitted on the record and proof of
19 proper service is made, a final default judgment may be rendered against the
20 defendant.
21 * * *
22 Section 4. Code of Civil Procedure Articles 1701 and 1704(D) and R.S. 23:1316 are
23hereby repealed in their entirety.
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 648 Original 2020 Regular Session Robby Carter
Abstract: Eliminates the preliminary default in civil cases.
Present law provides that in district courts and in workers' compensation cases, if a
defendant fails to file an answer or other pleadings within the time prescribed by law or by
the court, a preliminary default may be entered against him. Present law further provides that
after a delay of either two or 15 days a preliminary default may be confirmed by proof that
is sufficient to establish a prima facie case admitted on the record prior to entry of a final
default judgment.
Proposed law repeals present law.
Proposed law provides that a final default judgment may be rendered if a defendant fails to
file an answer or other pleadings within the time prescribed by law or by the court and the
plaintiff establishes a prima facie case that is admitted on the record.
Present law provides that before a final default judgment may be rendered against the state
or political subdivision thereof, a certified copy of the petition and the minute entry
constituting the preliminary default shall be sent to or served on the attorney general or
proper agent.
Proposed law provides that only the petition shall be sent to or served pursuant to present
law.
Proposed law eliminates references in present law to "preliminary default."
(Amends C.C.P. Arts. 253.3(A)(3), 1702 (A) and (E), 1702.1, 1704, 4904(A) and 4921(A),
R.S. 13:3205(intro. para.) and 4990, and R.S. 23:1316.1(A); repeals C.C.P. Arts. 1701 and
1704(D) and R.S. 23:1316)
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