HLS 21RS-720 ORIGINAL
2021 Regular Session
HOUSE BILL NO. 164
BY REPRESENTATIVE ROBBY CARTER
(On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
JUDGMENTS: Provides relative to default judgments
1 AN ACT
2To amend and reenact Code of Civil Procedure Articles 253.3(A)(3), 284, 928(A), 1001,
3 1002, 1471(A)(3), 1702, 1702.1, 1703, 1704, 1843, 1913(B) and (C), 2002(A)(2),
4 4904, 4921, 4921.1(C), and 5095, R.S. 13:3205(introductory paragraph) and 4990,
5 and R.S. 23:1316.1(A) and to repeal Code of Civil Procedure Article 1701 and R.S.
6 23:1316, relative to default judgments; to eliminate preliminary defaults and
7 confirmation of preliminary defaults; to provide for the rendition of default
8 judgments; to provide for notice of the intent to obtain a default judgment and related
9 delays; to provide for default judgments in parish, city, justice of the peace, and
10 workers' compensation courts; to provide with respect to the delay for answering; to
11 update terminology; to provide for an effective date; and to provide for related
12 matters.
13Be it enacted by the Legislature of Louisiana:
14 Section 1. Code of Civil Procedure Articles 253.3(A)(3), 284, 928(A), 1001, 1002,
151471(A)(3), 1702.1, 1703, 1704, 1843, 1913(B) and (C), 2002(A)(2), 4921.1(C), and 5095
16are hereby amended and reenacted to read as follows:
17 Art. 253.3. Duty judge exceptions; authority to hear certain matters
18 A. In any case assigned pursuant to Article 253.1, a duty judge shall only
19 hear and sign orders or judgments for the following:
20 * * *
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1 (3) Entry of preliminary defaults, confirmation of defaults Default
2 Judgments, stipulated matters, examination of judgment debtors, orders to proceed
3 in forma pauperis, orders allowing the filing of supplemental and amending petitions
4 when no trial date has been assigned, orders allowing incidental demands when no
5 trial date has been assigned, orders allowing additional time to answer, and judicial
6 commitments.
7 * * *
8 Art. 284. Judicial powers of district court clerk
9 The clerk of a district court may render, confirm, and sign final default
10 judgments or judgments by confession in cases where the jurisdiction of the court is
11 concurrent with that of justices of the peace, as provided in Article 5011.
12 * * *
13 Art. 928. Time of pleading exceptions
14 A. The declinatory exception and the dilatory exception shall be pleaded
15 prior to or in the answer and, prior to or along with the filing of any pleading seeking
16 relief other than entry or removal of the name of an attorney as counsel of record,
17 extension of time within which to plead, security for costs, or dissolution of an
18 attachment issued on the ground of the nonresidence of the defendant, and in any
19 event, prior to the signing of a final default judgment. When both exceptions are
20 pleaded, they shall be filed at the same time, and may be incorporated in the same
21 pleading. When filed at the same time or in the same pleading, these exceptions
22 need not be pleaded in the alternative or in a particular order.
23 * * *
24 Art. 1001. Delay for answering
25 A. A defendant shall file his answer within fifteen twenty-one days after
26 service of citation upon him, except as otherwise provided by law. If the plaintiff
27 files and serves a discovery request with his petition, the defendant shall file his
28 answer to the petition within thirty days after service of citation and service of
29 discovery request.
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1 B. When an exception is filed prior to answer and is overruled or referred to
2 the merits, or is sustained and an amendment of the petition ordered, the answer shall
3 be filed within ten fifteen days after the exception is overruled or referred to the
4 merits, or ten fifteen days after service of the amended petition.
5 C. The court may grant additional time for answering.
6 Comments - 2021
7 (a) The revision to Paragraph A of this Article extends the time within which
8 the defendant must file an answer from fifteen to twenty-one days after service of
9 citation. If the plaintiff files a discovery request with his petition, the delays for
10 answering the petition and for responding to the discovery request will be thirty days.
11 See Articles 1458(A), 1462(B)(1), and 1467(A). This change is intended to eliminate
12 confusion, particularly for self-represented litigants who are served with a discovery
13 request along with the petition, since the delays for responding to both are now the
14 same.
15 (b) The revision to Paragraph B of this Article extends the time within which
16 the defendant must file an answer to fifteen days after an exception is overruled or
17 referred to the merits, or fifteen days after service of an amended petition when an
18 exception is sustained and an amendment is ordered.
19 Art. 1002. Answer or other pleading filed prior to signing of final default judgment
20 Notwithstanding the provisions of Article 1001, the defendant may file his
21 answer or other pleading at any time prior to the signing of a final default judgment
22 against him.
23 * * *
24 Art. 1471. Failure to comply with order compelling discovery; sanctions
25 A. If a party or an officer, director, or managing agent of a party or a person
26 designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an
27 order to provide or permit discovery, including an order made under Article 1464 or
28 1469, the court in which the action is pending may make such orders in regard to the
29 failure as are just, including any of the following:
30 * * *
31 (3) An order striking out pleadings or parts thereof, or staying further
32 proceedings until the order is obeyed, or dismissing the action or proceeding or any
33 part thereof, or rendering a final default judgment against the disobedient party upon
34 presentation of proof as required by Article 1702.
35 * * *
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1 Art. 1702.1. Confirmation of preliminary default Default judgment without hearing
2 in open court; required information; certifications
3 A. When the plaintiff seeks to confirm a preliminary default judgment
4 without appearing for a hearing in open court as provided in Article 1702(B)(1) and
5 (C) (D)(1) and (E), along with any proof required by law, he or his attorney shall
6 include in an itemized form with a written motion for confirmation of preliminary
7 default and proposed final the plaintiff shall file a written request for default
8 judgment containing a certification that the suit is on an open account, promissory
9 note, or other negotiable instrument, on a conventional obligation, or on a check
10 dishonored for nonsufficient funds, and that the necessary invoices and affidavit,
11 note and affidavit, or check or certified reproduction thereof are attached, along with
12 any proof required by law and a proposed default judgment. If attorney fees are
13 sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and the fact that
14 the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have
15 elapsed since demand was made upon the defendant.
16 B. The certification shall indicate the type of service made on the defendant,
17 and the date of service, and the date a preliminary default was entered, and shall also
18 include a certification by the clerk that the record was examined by the clerk,
19 including therein the date of the examination and a statement that no answer or other
20 pleading has been filed within the time prescribed by law or by the court.
21 Art. 1703. Scope of judgment
22 A final default judgment shall not be different in kind from that demanded
23 in the petition. The amount of damages awarded shall be the amount proven to be
24 properly due as a remedy.
25 Art. 1704. Confirmation of preliminary default Default judgment in suits against the
26 state or a political subdivision
27 A. Notwithstanding any other provision of law to the contrary, prior to
28 confirmation of a preliminary the rendition of a default judgment against the state or
29 any of its departments, offices, boards, commissions, agencies, or instrumentalities,
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1 a certified copy of the minute entry constituting the preliminary default entered
2 pursuant to Article 1701 the plaintiff or the plaintiff's attorney shall send notice of
3 the plaintiff's intent to obtain a default judgment, together with a certified copy of the
4 petition or other demand, shall be sent by the plaintiff or his counsel to the attorney
5 general by registered or certified mail, or shall be served by the sheriff personally
6 upon the attorney general or the first assistant attorney general at the office of the
7 attorney general. If the minute entry and the notice and petition are served on the
8 attorney general by mail, the person mailing such items shall execute and file in the
9 record an affidavit stating that these items have been enclosed in an envelope
10 properly addressed to the attorney general with sufficient postage affixed, and stating
11 the date on which such envelope was deposited in the United States mail. In addition
12 the The return receipt shall be attached to the affidavit which was that is filed in the
13 record.
14 B. If no answer or other pleading is filed during the fifteen twenty-one days
15 immediately following the date on which the attorney general or the first assistant
16 attorney general received notice of the preliminary intent to obtain a default
17 judgment as provided in Paragraph A of this Article, a preliminary default entered
18 judgment against the state or any of its departments, offices, boards, commissions,
19 agencies, or instrumentalities may be confirmed by rendered upon proof as required
20 by Article 1702.
21 C. Notwithstanding any other provision of law to the contrary, prior to
22 confirmation of a preliminary the rendition of a default judgment against a political
23 subdivision of the state or any of its departments, offices, boards, commissions,
24 agencies, or instrumentalities, a certified copy of the minute entry constituting the
25 preliminary default entered pursuant to Article 1701 the plaintiff or the plaintiff's
26 attorney shall send notice of the plaintiff's intent to obtain a default judgment,
27 together with a certified copy of the petition or other demand, shall be sent by the
28 plaintiff or his counsel by registered or certified mail to the proper agent or person
29 for service of process at the office of that agent or person. The person mailing such
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1 items shall execute and file in the record an affidavit stating that these items have
2 been enclosed in an envelope properly addressed to the proper agent or person for
3 service of process, with sufficient postage affixed, and stating the date on which such
4 envelope was deposited in the United States mail. In addition the The return receipt
5 shall be attached to the affidavit which was that is filed in the record.
6 D. If no answer or other pleading is filed during the fifteen twenty-one days
7 immediately following the date on which the agent or person for service of process
8 received notice of the preliminary intent to obtain a default judgment as provided in
9 Paragraph C of this Article, a preliminary default entered judgment against the
10 political subdivision of the state or any of its departments, offices, boards,
11 commissions, agencies, or instrumentalities may be confirmed by rendered upon
12 proof as required by Article 1702.
13 Comments - 2021
14 Article 1704 continues the requirement that, prior to a default judgment being
15 rendered against the state of Louisiana or any of its departments, offices, boards,
16 commissions, agencies, or instrumentalities, the office of the attorney general must
17 receive notice of the plaintiff's intent to obtain the default judgment along with a
18 certified copy of the petition or other demand. A similar notice requirement applies
19 to any political subdivision of the state.
20 * * *
21 Art. 1843. Final default Default judgment
22 A final default judgment is that which is rendered against a defendant who
23 fails to plead within the time prescribed by law.
24 * * *
25 Art. 1913. Notice of judgment
26 * * *
27 B. Notice of the signing of a final default judgment against a defendant on
28 whom citation was not served personally, or on whom citation was served through
29 the secretary of state, and who filed no exception, answer, or other pleading, shall be
30 served on the defendant by the sheriff, by either personal or domiciliary service, or
31 in the case of a defendant originally served through the secretary of state, by service
32 on the secretary of state.
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1 C. Except when service is required under Paragraph B of this Article, notice
2 of the signing of a final default judgment shall be mailed by the clerk of court to the
3 defendant at the address where personal service was obtained or to the last known
4 address of the defendant.
5 * * *
6 Art. 2002. Annulment for vices of form; time for action
7 A. A final judgment shall be annulled if it is rendered:
8 * * *
9 (2) Against a defendant who has not been served with process as required by
10 law and who has not waived objection to jurisdiction, or against whom a valid final
11 default judgment has not been taken.
12 * * *
13 Art. 4921.1. Demand for trial; abandonment; applicability
14 * * *
15 C.(1) Notwithstanding the provisions of Paragraph A of this Article, the
16 justice of the peace or clerk may set the matter for trial upon filing of a petition. The
17 date, time, and location of the trial shall be contained in the citation. The first
18 scheduled trial date shall be not more than forty-five days, nor less than ten days,
19 from the service of the citation. If the defendant appears, he need not file an answer
20 unless ordered to do so by the court. If a defendant who has been served with
21 citation fails to appear at the time and place specified in the citation, the judge may
22 enter a final default judgment for the plaintiff in the amount proved to be due. If the
23 plaintiff does not appear, the judge may enter an order dismissing the action without
24 prejudice.
25 (2) If a matter has been set for trial pursuant to Subparagraph (1) of this
26 Paragraph, no final default judgment shall be rendered prior to the trial date.
27 * * *
28 Art. 5095. Same; defense of action
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1 A. The attorney at law appointed by the court to represent a defendant shall
2 use reasonable diligence to inquire of the defendant, and to determine from other
3 available sources, what defense, if any, the defendant may have, and what evidence
4 is available in support thereof.
5 B. Except in an executory proceeding, the attorney may except to the
6 petition, shall file an answer or other pleading in time to prevent a final default
7 judgment from being rendered, may plead therein any affirmative defense available,
8 may prosecute an appeal from an adverse judgment, and generally has the same duty,
9 responsibility, and authority in defending the action or proceeding as if he had been
10 retained as counsel for the defendant.
11 Section 2. R.S. 13:3205(introductory paragraph) and 4990 are hereby amended and
12reenacted to read as follows:
13 §3205. Default judgment; hearings; proof of service of process
14 No preliminary default or final default judgment may be rendered against the
15 defendant and no hearing may be held on a contradictory motion, rule to show cause,
16 or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq.,
17 until thirty days after the filing in the record of the affidavit of the individual who
18 has done any of the following:
19 * * *
20 §4990. Diligence in locating co-owners; known co-owners made parties
21 In any judicial proceeding in which real property is sought to be partitioned
22 upon the trial of the cause upon on the merits or upon confirmation of any
23 preliminary rendition of a default judgment therein, due proof shall be made of a
24 diligent effort on the part of the plaintiff to locate all co-owners of the property to be
25 partitioned and of the fact that all known co-owners have been made parties thereto.
26 Section 3. R.S. 23:1316.1 is hereby amended and reenacted to read as follows:
27 §1316.1. Confirmation of preliminary default Default judgment
28 A.(1) A preliminary default on behalf of any party at interest must be
29 confirmed by proof of the demand sufficient to establish a prima facie case. If no
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1 answer or other pleading is filed timely, this confirmation may be made after two
2 days, exclusive of holidays, from the entry of the preliminary default. If a defendant
3 in the principal or incidental demand fails to answer or file other pleadings within
4 the time prescribed by law or the time extended by the workers' compensation judge,
5 and the plaintiff establishes a prima facie case by competent and admissible evidence
6 and proof of proper service is made, a default judgment may be rendered against the
7 defendant.
8 (2) If a party has made an appearance of record in the case, notice that the
9 plaintiff intends to obtain a default judgment shall be sent by certified mail to
10 counsel of record for the party who failed to answer, or if there is no counsel of
11 record, to the party who failed to answer, at least seven days, exclusive of holidays,
12 before a default judgment may be rendered.
13 (3) If an attorney for a party who fails to answer has contacted the plaintiff
14 or the plaintiff's attorney in writing concerning an action after it has been filed,
15 notice that the plaintiff intends to obtain a default judgment shall be sent by certified
16 mail to the attorney for that party at least seven days, exclusive of holidays, before
17 a default judgment may be rendered.
18 * * *
19 Section 4. Code of Civil Procedure Articles 1702, 4904, and 4921 are hereby
20amended and reenacted to read as follows:
21 Art. 1702. Confirmation of preliminary default Default judgment
22 A. A preliminary default must be confirmed by proof of the demand that is
23 sufficient to establish a prima facie case and that is admitted on the record prior to
24 the entry of a final default judgment. The court may permit documentary evidence
25 to be filed in the record in any electronically stored format authorized by the local
26 rules of the district court or approved by the clerk of the district court for receipt of
27 evidence. If no answer or other pleading is filed timely, this confirmation may be
28 made after two days, exclusive of holidays, from the entry of the preliminary default.
29 When a preliminary default has been entered against a party that is in default after
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1 having made an appearance of record in the case, notice of the date of the entry of
2 the preliminary default must be sent by certified mail by the party obtaining the
3 preliminary default to counsel of record for the party in default, or if there is no
4 counsel of record, to the party in default, at least seven days, exclusive of holidays,
5 before confirmation of the preliminary default. If a defendant in the principal or
6 incidental demand fails to answer or file other pleadings within the time prescribed
7 by law or by the court, and the plaintiff establishes a prima facie case by competent
8 and admissible evidence that is admitted on the record, a default judgment in favor
9 of the plaintiff may be rendered. The court may permit documentary evidence to be
10 filed in the record in any electronically stored format authorized by the local rules
11 of the district court or approved by the clerk of the district court for receipt of
12 evidence.
13 B. If a party has made an appearance of record in the case, notice that the
14 plaintiff intends to obtain a default judgment shall be sent by certified mail to
15 counsel of record for the party who failed to answer, or if there is no counsel of
16 record, to the party who failed to answer, at least seven days, exclusive of holidays,
17 before a default judgment may be rendered.
18 C. If an attorney for a party who fails to answer has contacted the plaintiff
19 or the plaintiff's attorney in writing concerning an action after it has been filed,
20 notice that the plaintiff intends to obtain a default judgment shall be sent by certified
21 mail to the attorney for that party at least seven days, exclusive of holidays, before
22 a default judgment may be rendered.
23 B.D.(1) When a demand is based upon a conventional obligation, affidavits
24 and exhibits annexed thereto which that contain facts sufficient to establish a prima
25 facie case shall be admissible, self-authenticating, and sufficient proof of such
26 demand. The court may, under the circumstances of the case, require additional
27 evidence in the form of oral testimony before entering a final default judgment.
28 (2) When a demand is based upon a delictual obligation, the testimony of the
29 plaintiff with corroborating evidence, which may be by affidavits and exhibits
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1 annexed thereto which contain containing facts sufficient to establish a prima facie
2 case, shall be admissible, self-authenticating, and sufficient proof of such demand.
3 The court may, under the circumstances of the case, require additional evidence in
4 the form of oral testimony before entering a final default judgment.
5 (3) When the sum due is on an open account or a promissory note or other
6 negotiable instrument, an affidavit of the correctness thereof shall be prima facie
7 proof. When the demand is based upon a promissory note or other negotiable
8 instrument, no proof of any signature thereon shall be required.
9 C.E. In those proceedings in which the sum due is on an open account or a
10 promissory note, other negotiable instrument, or other conventional obligation, or a
11 deficiency judgment derived therefrom, including those proceedings in which one
12 or more mortgages, pledges, or other security for the open account, promissory note,
13 negotiable instrument, conventional obligation, or deficiency judgment derived
14 therefrom is sought to be enforced, maintained, or recognized, or in which the
15 amount sought is that authorized by R.S. 9:2782 for a check dishonored for
16 nonsufficient funds, a hearing in open court shall not be required unless the judge,
17 in his discretion, directs that such a hearing be held. The plaintiff shall submit to the
18 court the proof required by law and the original and not less than one copy of the
19 proposed final default judgment. The judge shall, within seventy-two hours of
20 receipt of such submission from the clerk of court, sign the proposed final default
21 judgment or direct that a hearing be held. The clerk of court shall certify that no
22 answer or other pleading has been filed by the defendant. The minute clerk shall
23 make an entry showing the dates of receipt of proof, review of the record, and
24 rendition of the final default judgment. A certified copy of the signed final default
25 judgment shall be sent to the plaintiff by the clerk of court, and notice of the signing
26 of the final default judgment shall be given as provided in Article 1913.
27 D.F. When the demand is based upon a claim for a personal injury, a sworn
28 narrative report of the treating physician or dentist may be offered in lieu of his
29 testimony.
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1 E.G.(1) Notwithstanding any other provisions of law to the contrary, when
2 the demand is for divorce under Civil Code Article 103(1) or (5), whether or not the
3 demand contains a claim for relief incidental or ancillary thereto, a hearing in open
4 court shall not be required unless the judge, in his discretion, directs that a hearing
5 be held. The plaintiff shall submit to the court an affidavit specifically attesting to
6 and testifying as to the truth of all of the factual allegations contained in the petition,
7 the original and not less than one copy of the proposed final default judgment, and
8 a certification which shall indicate indicating the type of service made on the
9 defendant, and the date of service, the date a preliminary default was entered, and a
10 certification by the clerk that the record was examined by the clerk, including the
11 date of the examination, and a statement that no answer or other pleading has been
12 filed. If the demand is for divorce under Civil Code Article 103(5), a certified copy
13 of the protective order or injunction rendered after a contradictory hearing or consent
14 decree shall also be submitted to the court. If no answer or other pleading has been
15 filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry
16 of a preliminary default, review the submitted affidavit, proposed final default
17 judgment, and certification, and render and sign the proposed final default judgment,
18 or direct that a hearing be held. The minutes shall reflect rendition and signing of
19 the final default judgment.
20 (2) If the demand is for divorce under Civil Code Article 103(1) and the
21 defendant, by sworn affidavit, acknowledges receipt of a certified copy of the
22 petition and waives formal citation, service of process, all legal delays, notice of
23 trial, and appearance at trial, a default judgment of divorce may be entered against
24 the defendant two days, exclusive of legal holidays, after the affidavit is filed. The
25 affidavit of the defendant may be prepared or notarized by any notary public.
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1 Comments - 2021
2 (a) Paragraph C of this Article adopts a new rule that, prior to the rendition
3 of a default judgment, notice must be sent to a party's attorney who has contacted the
4 plaintiff or the plaintiff's attorney in writing about the case. The term "in writing"
5 includes electronic means as well as any other type of writing. If such notice is not
6 given, any default judgment rendered shall be a nullity similar to that arising from
7 a lack of the notice required by Paragraph B. See, e.g., First Bank & Trust v. Bayou
8 Land and Marine Contractors, Inc., 103 So. 3d 1148 (La. App. 5 Cir. 2012).
9 (b) Paragraph G of this Article continues the authorization under former
10 Articles 1701 and 1702(E) for a judgment of divorce under Civil Code Article 103(1)
11 to be granted without a hearing in open court two days, exclusive of holidays, after
12 the filing of the defendant's affidavit waiving all legal delays, and for a judgment of
13 divorce under Civil Code Article 103(5) to be rendered without a hearing in open
14 court after the delays for answering have expired.
15 * * *
16 Art. 4904. Final default Default judgment in parish and city courts
17 A. In suits in a parish court or a city court, if the defendant fails to answer
18 timely, or if he fails to appear at the trial, and the plaintiff proves his establishes a
19 prima facie case by competent and admissible evidence, a final default judgment in
20 favor of plaintiff may be rendered. No preliminary default is necessary.
21 B. The plaintiff may obtain a final default judgment only by producing
22 relevant and competent evidence which establishes a prima facie case. When the suit
23 is for a sum due on an open account, promissory note, negotiable instrument, or other
24 conventional obligation, prima facie proof may be submitted by affidavit. When the
25 demand is based upon a promissory note or other negotiable instrument, no proof of
26 any signature thereon shall be required.
27 C. When the sum due is on an open account, promissory note, negotiable
28 instrument, or other conventional obligation, a hearing in open court shall not be
29 required unless the judge in his discretion directs that such a hearing be held. The
30 plaintiff shall submit to the court the proof required by law and the original and not
31 less than one copy of the proposed final default judgment. The judge shall, within
32 seventy-two hours of receipt of such submission from the clerk of court, sign the
33 proposed final default judgment or direct that a hearing be held. The clerk of court
34 shall certify that no answer or other pleading has been filed by the defendant. The
35 minute clerk shall make an entry showing the dates of receipt of proof, review of the
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1 record, and rendition of the final default judgment. A certified copy of the signed
2 final default judgment shall be sent to the plaintiff by the clerk of court, and notice
3 of the signing of the default judgment shall be given as provided in Article 1913.
4 Comments - 2021
5 (a) The change to Paragraph A of this Article makes the burden of proof to
6 obtain a default judgment in parish and city courts consistent with the burden of
7 proof that is imposed in district court pursuant to Article 1702.
8 (b) Paragraph C of this Article was amended to make this provision
9 consistent with Article 1702(E) concerning the requirements of Article 1913.
10 * * *
11 Art. 4921. Final default Default judgment; justice of the peace courts; district courts
12 with concurrent jurisdiction
13 A. If the defendant fails to answer timely, or if he fails to appear at the trial,
14 and the plaintiff proves his establishes a prima facie case by competent and
15 admissible evidence, a final default judgment in favor of the plaintiff may be
16 rendered. No preliminary default is necessary.
17 B. The plaintiff may obtain a final default judgment only by producing
18 relevant and competent evidence which establishes a prima facie case. When the suit
19 is for a sum due on an open account, promissory note, negotiable instrument, or other
20 conventional obligation, prima facie proof may be submitted by affidavit. When the
21 demand is based upon a promissory note or other negotiable instrument, no proof of
22 any signature thereon shall be required.
23 Comments - 2021
24 The change to Paragraph A of this Article makes the burden of proof to
25 obtain a default judgment in justice of the peace courts consistent with the burden
26 of proof that is imposed in district court pursuant to Article 1702.
27 Section 5. Code of Civil Procedure Articles 1702, 4904, and 4921 are hereby
28amended and reenacted to read as follows:
29 Art. 1702. Confirmation of preliminary default Default judgment
30 A. A preliminary default must be confirmed by proof of the demand that is
31 sufficient to establish a prima facie case and that is admitted on the record prior to
32 the entry of a final default judgment. The court may permit documentary evidence
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1 to be filed in the record in any electronically stored format authorized by the local
2 rules of the district court or approved by the clerk of the district court for receipt of
3 evidence. If no answer or other pleading is filed timely, this confirmation may be
4 made after two days, exclusive of holidays, from the entry of the preliminary default.
5 When a preliminary default has been entered against a party that is in default after
6 having made an appearance of record in the case, notice of the date of the entry of
7 the preliminary default must be sent by certified mail by the party obtaining the
8 preliminary default to counsel of record for the party in default, or if there is no
9 counsel of record, to the party in default, at least seven days, exclusive of holidays,
10 before confirmation of the preliminary default. If a defendant in the principal or
11 incidental demand fails to answer or file other pleadings within the time prescribed
12 by law or by the court, and the plaintiff establishes a prima facie case by competent
13 and admissible evidence that is admitted on the record, a default judgment in favor
14 of the plaintiff may be rendered. The court may permit documentary evidence to be
15 filed in the record in any electronically stored format authorized by the local rules
16 of the district court or approved by the clerk of the district court for receipt of
17 evidence.
18 B. If a party has made an appearance of record in the case, notice that the
19 plaintiff intends to obtain a default judgment shall be sent by certified mail to
20 counsel of record for the party who failed to answer, or if there is no counsel of
21 record, to the party who failed to answer, at least seven days, exclusive of holidays,
22 before a default judgment may be rendered.
23 C. If an attorney for a party who fails to answer has contacted the plaintiff
24 or the plaintiff's attorney in writing concerning an action after it has been filed,
25 notice that the plaintiff intends to obtain a default judgment shall be sent by certified
26 mail to the attorney for that party at least seven days, exclusive of holidays, before
27 a default judgment may be rendered.
28 B.D.(1) When a demand is based upon a conventional obligation, affidavits
29 and exhibits annexed thereto which that contain facts sufficient to establish a prima
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1 facie case shall be admissible, self-authenticating, and sufficient proof of such
2 demand. The court may, under the circumstances of the case, require additional
3 evidence in the form of oral testimony before entering a final default judgment.
4 (2) When a demand is based upon a delictual obligation, the testimony of the
5 plaintiff with corroborating evidence, which may be by affidavits and exhibits
6 annexed thereto which contain containing facts sufficient to establish a prima facie
7 case, shall be admissible, self-authenticating, and sufficient proof of such demand.
8 The court may, under the circumstances of the case, require additional evidence in
9 the form of oral testimony before entering a final default judgment.
10 (3) When the sum due is on an open account or a promissory note or other
11 negotiable instrument, an affidavit of the correctness thereof shall be prima facie
12 proof. When the demand is based upon a promissory note or other negotiable
13 instrument, no proof of any signature thereon shall be required.
14 C.E. In those proceedings in which the sum due is on an open account or a
15 promissory note, other negotiable instrument, or other conventional obligation, or a
16 deficiency judgment derived therefrom, including those proceedings in which one
17 or more mortgages, pledges, or other security for the open account, promissory note,
18 negotiable instrument, conventional obligation, or deficiency judgment derived
19 therefrom is sought to be enforced, maintained, or recognized, or in which the
20 amount sought is that authorized by R.S. 9:2782 for a check dishonored for
21 nonsufficient funds, a hearing in open court shall not be required unless the judge,
22 in his discretion, directs that such a hearing be held. The plaintiff shall submit to the
23 court the proof required by law and the original and not less than one copy of the
24 proposed final default judgment. The judge shall, within seventy-two hours of
25 receipt of such submission from the clerk of court, sign the proposed final default
26 judgment or direct that a hearing be held. The clerk of court shall certify that no
27 answer or other pleading has been filed by the defendant. The minute clerk shall
28 make an entry showing the dates of receipt of proof, review of the record, and
29 rendition of the final default judgment. A certified copy of the signed final default
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1 judgment shall be sent to the plaintiff by the clerk of court, and notice of the signing
2 of the final default judgment shall be given as provided in Article 1913.
3 F. When the demand is based upon a right acquired by assignment in an open
4 account, promissory note, or other negotiable instrument, the court may raise an
5 objection of prescription before entering a default judgment if the grounds for the
6 objection appear from the pleadings or from the evidence submitted by the plaintiff.
7 If the court raises an objection of prescription, it shall not enter the default judgment
8 unless the plaintiff presents prima facie proof that the action is not barred by
9 prescription. Upon the plaintiff's request, the court shall hold a hearing for the
10 submission of such proof.
11 D.G. When the demand is based upon a claim for a personal injury, a sworn
12 narrative report of the treating physician or dentist may be offered in lieu of his
13 testimony.
14 E.H.(1) Notwithstanding any other provisions of law to the contrary, when
15 the demand is for divorce under Civil Code Article 103(1) or (5), whether or not the
16 demand contains a claim for relief incidental or ancillary thereto, a hearing in open
17 court shall not be required unless the judge, in his discretion, directs that a hearing
18 be held. The plaintiff shall submit to the court an affidavit specifically attesting to
19 and testifying as to the truth of all of the factual allegations contained in the petition,
20 the original and not less than one copy of the proposed final judgment, and a
21 certification which shall indicate indicating the type of service made on the
22 defendant, and the date of service, the date a preliminary default was entered, and a
23 certification by the clerk that the record was examined by the clerk, including the
24 date of the examination, and a statement that no answer or other pleading has been
25 filed. If the demand is for divorce under Civil Code Article 103(5), a certified copy
26 of the protective order or injunction rendered after a contradictory hearing or consent
27 decree shall also be submitted to the court. If no answer or other pleading has been
28 filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry
29 of a preliminary default, review the submitted affidavit, proposed final default
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1 judgment, and certification, and render and sign the proposed final default judgment,
2 or direct that a hearing be held. The minutes shall reflect rendition and signing of
3 the final default judgment.
4 (2) If the demand is for divorce under Civil Code Article 103(1) and the
5 defendant, by sworn affidavit, acknowledges receipt of a certified copy of the
6 petition and waives formal citation, service of process, all legal delays, notice of
7 trial, and appearance at trial, a default judgment of divorce may be entered against
8 the defendant two days, exclusive of legal holidays, after the affidavit is filed. The
9 affidavit of the defendant may be prepared or notarized by any notary public.
10 Comments - 2021
11 (a) Paragraph C of this Article adopts a new rule that, prior to the rendition
12 of a default judgment, notice must be sent to a party's attorney who has contacted the
13 plaintiff or the plaintiff's attorney in writing about the case. The term "in writing"
14 includes electronic means as well as any other type of writing. If such notice is not
15 given, any default judgment rendered shall be a nullity similar to that arising from
16 a lack of the notice required by Paragraph B. See, e.g., First Bank & Trust v. Bayou
17 Land and Marine Contractors, Inc., 103 So. 3d 1148 (La. App. 5 Cir. 2012).
18 (b) Paragraph H of this Article continues the authorization under former
19 Articles 1701 and 1702(E) for a judgment of divorce under Civil Code Article 103(1)
20 to be granted without a hearing in open court two days, exclusive of holidays, after
21 the filing of the defendant's affidavit waiving all legal delays, and for a judgment of
22 divorce under Civil Code Article 103(5) to be rendered without a hearing in open
23 court after the delays for answering have expired.
24 * * *
25 Art. 4904. Final default Default judgment in parish and city courts
26 A. In suits in a parish court or a city court, if the defendant fails to answer
27 timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final
28 default judgment in favor of plaintiff may be rendered. No preliminary default is
29 necessary.
30 B. The plaintiff may obtain a final default judgment only by producing
31 relevant and competent evidence which establishes a prima facie case. When the suit
32 is for a sum due on an open account, promissory note, negotiable instrument, or other
33 conventional obligation, prima facie proof may be submitted by affidavit. When the
34 demand is based upon a promissory note or other negotiable instrument, no proof of
35 any signature thereon shall be required.
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1 C. When the sum due is on an open account, promissory note, negotiable
2 instrument, or other conventional obligation, a hearing in open court shall not be
3 required unless the judge in his discretion directs that such a hearing be held. The
4 plaintiff shall submit to the court the proof required by law and the original and not
5 less than one copy of the proposed final default judgment. The judge shall, within
6 seventy-two hours of receipt of such submission from the clerk of court, sign the
7 proposed final default judgment or direct that a hearing be held. The clerk of court
8 shall certify that no answer or other pleading has been filed by the defendant. The
9 minute clerk shall make an entry showing the dates of receipt of proof, review of the
10 record, and rendition of the final default judgment. A certified copy of the signed
11 final default judgment shall be sent to the plaintiff by the clerk of court, and notice
12 of the signing of the default judgment shall be given as provided in Article 1913.
13 D. When the demand is based upon a right acquired by assignment in an
14 open account, promissory note, or other negotiable instrument, the court may raise
15 an objection to prescription before entering a default judgment if the grounds for the
16 objection appear from pleadings or from the evidence submitted by the plaintiff. If
17 the court raises an objection of prescription, it shall not enter the default judgment
18 unless the plaintiff presents prima facie proof that the action is not barred by
19 prescription. Upon the plaintiff's request, the court shall hold a hearing for the
20 submission of such proof.
21 Comments - 2021
22 (a) The change to Paragraph A of this Article makes the burden of proof to
23 obtain a default judgment in parish and city courts consistent with the burden of
24 proof that is imposed in district court pursuant to Article 1702.
25 (b) Paragraph C of this Article was amended to make this provision
26 consistent with Article 1702(E) concerning the requirements of Article 1913.
27 * * *
28 Art. 4921. Final default Default judgment; justice of the peace courts; district courts
29 with concurrent jurisdiction
30 A. If the defendant fails to answer timely, or if he fails to appear at the trial,
31 and the plaintiff proves his establishes a prima facie case by competent and
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1 admissible evidence, a final default judgment in favor of the plaintiff may be
2 rendered. No preliminary default is necessary.
3 B. The plaintiff may obtain a final default judgment only by producing
4 relevant and competent evidence which establishes a prima facie case. When the suit
5 is for a sum due on an open account, promissory note, negotiable instrument, or other
6 conventional obligation, prima facie proof may be submitted by affidavit. When the
7 demand is based upon a promissory note or other negotiable instrument, no proof of
8 any signature thereon shall be required.
9 C. When the demand is based upon a right acquired by assignment in an
10 open account, promissory note, or other negotiable instrument, the court may raise
11 an objection of prescription before entering a default judgment if the grounds for the
12 objection appear from the pleadings or from the evidence submitted by the plaintiff.
13 If the court raises an objection of prescription, it shall not enter the default judgment
14 unless the plaintiff presents prima facie proof that the action is not barred by
15 prescription. Upon the plaintiff's request, the court shall hold a hearing for the
16 submission of such proof.
17 Comments - 2021
18 The change to Paragraph A of this Article makes the burden of proof to
19 obtain a default judgment in justice of the peace courts consistent with the burden
20 of proof that is imposed in district court pursuant to Article 1702.
21 Section 6. Code of Civil Procedure Article 1701 and R.S. 23:1316 are hereby
22repealed in their entirety.
23 Section 7.(A) This Act shall become effective on January 1, 2022, except as
24otherwise provided by this Section, and shall apply to default judgments rendered on or after
25that date.
26 (B) Section 4 of this Act shall only become effective if House Bill No. 152 of the
272021 Regular Session does not become law.
28 (C) Section 5 of this Act shall only become effective if House Bill No. 152 of the
292021 Regular Session becomes law. If House Bill No. 152 of the 2021 Regular Session
30becomes law, then Code of Civil Procedure Articles 1702, 4904, and 4921 as provided by
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HB NO. 164
1Section 5 of this Act shall, on January 1, 2022, supersede Code of Civil Procedure Articles
21702, 4904, and 4921 as provided by House Bill No. 152 of the 2021 Regular Session.
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 164 Original 2021 Regular Session Robby Carter
Abstract: Provides for the elimination of preliminary defaults.
Present law (C.C.P. Art. 253.3(A)(3)) authorizes the duty judge to hear and sign certain
orders and judgments.
Proposed law retains present law but removes entry of preliminary defaults and confirmation
of defaults and adds default judgments.
Present law (C.C.P. Arts. 284, 928(A), 1002, 1471(A)(3), 1703, 1843, 1913(B) and (C),
2002(A)(2), 4921.1(C), and 5095) includes references to final default judgments.
Proposed law retains present law but updates terminology and makes other technical
corrections.
Present law (C.C.P. Art. 1001) requires the defendant to file his answer within 15 days after
service of citation and within 10 days after an exception is overruled or referred to the merits
or the amended petition is served.
Proposed law extends the time periods provided under present law from 15 to 21 days and
from 10 to 15 days. Proposed law also provides that if a discovery request is served by the
plaintiff with the petition, the defendant shall have 30 days within which to file his answer.
Present law (C.C.P. Art. 1702.1) provides for the confirmation of preliminary defaults
without a hearing in open court.
Proposed law updates terminology and cross-references included in present law and requires
the plaintiff to file a written request for default judgment.
Present law (C.C.P. Art. 1704) provides for the confirmation of preliminary defaults in suits
against the state or a political subdivision.
Proposed law requires the plaintiff to send notice of his intent to obtain a default judgment
before the court can render a default judgment against the state or its political subdivisions
or any of its instrumentalities. Proposed law also extends the time period within which the
answer or other pleading shall be filed under present law from 15 to 21 days.
Present law (R.S. 13:3205(intro. para.)) prohibits the rendition of a preliminary default or
final default judgment under certain circumstances.
Proposed law updates terminology used in present law.
Present law (R.S. 13:4990) requires the plaintiff to make a diligent effort to locate all
co-owners of property that is sought to be partitioned upon confirmation of a preliminary
default.
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Proposed law updates terminology used in present law.
Present law (R.S. 23:1316.1(A)) provides with respect to the confirmation of preliminary
defaults in workers' compensation cases.
Proposed law provides for the rendition of a default judgment in favor of a plaintiff who
establishes a prima facie case when the defendant fails to answer or file other pleadings
within the prescribed time.
Proposed law further requires the plaintiff to provide notice of his intent to obtain a default
judgment against the defendant in certain circumstances at least seven days, exclusive of
legal holidays, prior to the rendition of the default judgment.
Present law (C.C.P. Art. 1702) provides with respect to the confirmation of preliminary
defaults.
Proposed law provides for the rendition of a default judgment in favor of a plaintiff who
establishes a prima facie case when the defendant fails to answer or file other pleadings
within the prescribed time.
Proposed law further requires the plaintiff to provide notice of his intent to obtain a default
judgment against the defendant in certain circumstances at least seven days, exclusive of
legal holidays, prior to the rendition of the default judgment.
Proposed law further provides that in cases involving divorce under C.C. Art. 103(1), when
the defendant files an affidavit waiving citation, service, all delays, and notice, a default
judgment of divorce may be rendered against the defendant two days, exclusive of legal
holidays, after the affidavit is filed.
Present law (C.C.P. Art. 4904) provides for the rendition of final default judgments in parish
and city courts.
Proposed law updates terminology used in present law and provides that notice of the
signing of a default judgment shall be given as provided in Art. 1913.
Present law (C.C.P. Art. 4921) provides for the rendition of final default judgments in justice
of the peace courts and district courts with concurrent jurisdiction.
Proposed law updates terminology used in present law.
Present law (C.C.P. Art. 1701) provides with respect to the entry of preliminary defaults.
Proposed law repeals present law.
Present law (R.S. 23:1316) provides for the rendition of preliminary defaults in workers'
compensation cases.
Proposed law repeals present law.
(Amends C.C.P. Arts. 253.3(A)(3), 284, 928(A), 1001, 1002, 1471(A)(3), 1702, 1702.1,
1703, 1704, 1843, 1913(B) and (C), 2002(A)(2), 4904, 4921, 4921.1(C), and 5095, R.S.
13:3205(intro. para.) and 4990, and R.S. 23:1316.1(A); Repeals C.C.P. Art. 1701 and R.S.
23:1316)
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