Home Bank, N. A. v. Golden La Properties, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-715

HOME BANK, N.A.

VERSUS

GOLDEN LA PROPERTIES, LLC, SHERALI BAHADUR ALI, A/K/A
SHERALI BAHADUR, KARIM KHANMOHAMED, AND SHEHMIR
SHERALI

**********
ON APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2020-5148
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

**********
JONATHAN W. PERRY
JUDGE

**********

Court composed of Elizabeth A. Pickett, Candyce G. Perret, and Jonathan W. Perry,
Judges.

APPEAL DISMISSED, IN PART;
JUDGMENT REVERSED;
CASE REMANDED.

Jefferson J. Moss, Jr.
Moss & Associates
814 South Washington Street
Lafayette, LA 70501
(337) 237-6280
COUNSEL FOR DEFENDANTS/APPELLANTS:
Golden LA Properties, LLC, Sherali Bahadur Ali, a/k/a
Sherali Bahadur, Karim Khanmohamed, and Shehmir Sherali

Wayne A. Shullaw
Attorney at Law
600 Jefferson Street
Suite 502
Post Office Box 4815
Lafayette, LA 70502-4815
(337) 266-2311
COUNSEL FOR PLAINTIFF/APPELLEE:
Home Bank, N.A.

PERRY, Judge.

This appeal involves two default judgments in a petition for deficiency

judgment brought by Home Bank, N.A. (“Home Bank”), one against Golden LA

Properties, LLC (“Golden”), and another against the three guarantors of Golden’s

indebtedness, Sherali Bahadur Ali a/k/a Sherali Bahadur (“Mr. Sherali”), Karim

Khanmohamed (“Mr. Karim”), and Shehmir Sherali (“Mr. Shehmir”) (collectively

“the guarantors”). In a joint motion, Golden and the guarantors appeal. We dismiss

Golden’s appeal for lack of appellate jurisdiction, reverse the deficiency judgment

against the guarantors, and remand to the trial court.

FACTS AND PROCEDURAL HISTORY

On September 14, 2015, Golden, a Louisiana limited liability company,

executed a promissory note with a principal amount of $2,925,778.25 in favor of the

lender, Home Bank.1 To secure the promissory note, Golden signed a multiple

indebtedness mortgage and a commercial security agreement. The mortgage

affected a tract of land containing 14.783 acres situated in Section 13, Township 9

South, Range 4 East, Parish of Lafayette, Louisiana (“the property”), more

particularly identified by plat of survey dated September 19, 1994, and bearing

municipal address 2032 NE Evangeline Thruway, Lafayette, Louisiana. In addition,

the mortgage included not only the immovable property, but also encompassed:

[A]ny and all present and future buildings, constructions, component
parts, improvements, attachments, appurtenances, fixtures, rights,
ways, privileges, advantages, batture, and batture rights, servitudes and
easements of every type and description, now and/or in the future
relating to the Property, and any and all items and fixtures attached to
and/or forming integral or component parts of the Property in
accordance with the Louisiana Civil Code.

1
The original indebtedness, mortgage, and security agreement were in favor of St. Martin
Bank and Trust Company (“St. Martin”). At the time of this litigation, Home Bank was the
successor in interest to St. Martin. For clarity, we have chosen to refer to the plaintiff as Home
Bank throughout this opinion.

The commercial security agreement further provided Home Bank with a “Security

interest in any and all furniture, fixtures, equipment, inventory accounts, general

intangibles and the Ramada Inn Franchise Agreement including but not limited to

[the property] located at 2032 NE Evangeline Thruway in Lafayette, LA, 70501.”

When the promissory note became in arrears on August 14, 2020, Home Bank

commenced this litigation. Later, on October 20, 2020, Home Bank filed a petition

to enforce a multiple indebtedness mortgage and commercial security agreement by

executory process, naming Golden as the defendant. Service instructions stated,

“Please serve the Defendant, Golden LA Properties, LLC, through its registered

agent for service of process, Mr. Jefferson J. Moss, Jr. [“Mr. Moss”], at 814 S.

Washington Street, Lafayette, Louisiana 70501.” On October 22, 2020, as requested

by Home Bank, the trial court signed an order which provided that the Writ of

Seizure and Sale immediately issue to the Sheriff of Lafayette Parish. Thereafter,

the Sheriff’s Return shows personal service of the Notice of Seizure and Sale and

the Notice to Appoint Appraiser having been made on “Rosie” on November 23,

2020.

Publication of the upcoming sale of the seized property was made on January

7, 2021, and February 4, 2021, in the Daily Advertiser (Lafayette); publication was

in the circulated newspaper as well as the digital edition.2 The appraiser’s report

was filed on February 4, 2021, reflecting two appraisals. One appraisal was for

$1,500,000.00 and the other for $1,589,000.00; thus, the average appraisal was

determined to be $1,544,500.00. The sale was scheduled for and did take place on

February 10, 2021. As reflected in the Procès Verbal, the property was adjudicated

2
In addition, Home Bank provided notice of the seizure on December 3, 2020, via certified
mail to 2032 Evangeline Hospitality, LLC, the lessee of the premises. Shortly thereafter, on
December 8, 2020, Home Bank also requested the Clerk of Court for Lafayette Parish to record a
copy of the Mennonite notice sent out in connection with the seizure and sale of the property.
2

to Home Bank for $1,029,667.00, two-thirds of the appraisal value, on the date of

the sale, and a deed was issued to it by the Sheriff of Lafayette Parish.

Subsequently, on March 15, 2021, Home Bank filed an amended petition for

deficiency judgment, naming Golden and the guarantors as defendants. Service was

requested on Golden through its registered agent for service of process, Mr. Moss,

at the same address designated in the executory proceedings and on the guarantors,

domiciliaries of San Antonio, Texas, through the Louisiana Long Arm Statute.

Service of citation3 was made on Golden on April 27, 2021. As shown on the

Sheriff’s Return, personal service of the amended petition for deficiency judgment

was made on “Rosy.”

After service of citation was made on Golden, Home Bank filed a motion and

order for preliminary default on May 27, 2021. In that motion, it is stated:

ON MOTION of the Plaintiff, Home Bank, N.A., through
undersigned counsel, and on suggesting to the court that PERSONAL
service of the Citation and Petition was made on the Defendant, Golden
LA Properties, LLC, through its registered agent for service of process,
Jefferson J. Moss, Jr., on April 27, 2021; that the Defendant, Golden
LA Properties, LLC, has failed to answer or otherwise appear within
the time prescribed by law; and that the Plaintiff desires and is entitled
to a preliminary judgment by default.

On May 28, 2021, the Commissioner for the 15th Judicial District Court granted the

preliminary judgment by default.

Then, on June 7, 2021, Home Bank presented a judgment to the trial court,

seeking the confirmation of the preliminary default entered on May 28, 2021. In

3
Citation and service of citation are not the same. Under La.Code Civ.P. art. 925(A)(1),
an objection to insufficiency of citation is leveled at the form of the citation mandated in La.Code
Civ.P. art. 1202. As provided in La.Code Civ.P. art. 925(A)(2), an objection leveled at the
insufficiency of service of process focuses on the person to whom citation is delivered or on the
manner in which delivery is made. See Filson v. Windson Ct. Hotel, 04-2893 (La. 6/29/05), 907
So.2d 723 (citing Maraist, Frank L. and Lemmon, Harry T., Louisiana Civil Law Treatise, Vol. 1,
§ 6.5, p. 108.

3

support of that requested judgment, Home Bank attached a default judgment

certification which certified, among others, the following: “The Defendant, Golden

LA Properties, LLC, was served through its registered agent for service of process,

Jefferson J. Moss, Jr., on April 27, 2021.”

On June 14, 2021, the trial court granted judgment in favor of Home Bank and

against Golden. The judgment reads as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there
be judgment herein in favor of the Plaintiff, Home Bank, N.A., and
against the Defendant, GOLDEN LA PROPERTIES, LLC (TIN#**-
***1513), in the principal sum of ONE MILLION NINE HUNDRED
EIGHTY-NINE THOUSAND SIX HUNDRED ELEVEN AND
71/100 ($1,989,611.71) DOLLARS, accrued interest in the additional
sum of THIRTY-SEVEN THOUSAND TWO HUNDRED ONE AND
31/100 ($37,201.31) DOLLARS, late charges in the additional sum of
TWO THOUSAND ONE HUNDRED AND NO/100 ($2,100.00)
DOLLARS, property taxes in the additional sum of FOUR
THOUSAND TWO HUNDRED TWELVE AND 92/100 ($4,212.92)
DOLLARS, together with interest at the rate of TWENTY-ONE
PERCENT (21%) per annum from October 9, 2020 until paid,
reasonable attorney’s fees in the amount of TWENTY-FIVE
PERCENT (25%) of the principal balance due on the loan, the aforesaid
subject to ONE (1) credit in the amount of NINE HUNDRED
NINETY-FIVE THOUSAND NINE HUNDRED FIFTY-ONE AND
72/100 ($995,951.72) DOLLARS effective February 10, 2021, and for
all costs of these proceedings.

Notice of judgment was then mailed to Golden on June 16, 2021.

The action against the three guarantors proceeded separately from Golden’s.

As shown on affidavits of service executed for each of the three guarantors, the legal

secretary with the law firm of Wayne A. Shullaw, counsel for Home Bank, stated

that service of citation in accordance with the Louisiana Long Arm Statute was made

on Mr. Sherali on April 29, 2021, and Mr. Karim and Mr. Shehmir on May 4, 2021.

Subsequently, on June 14, 2021, after Home Bank asserted that Mr. Sherali,

Mr. Karim, and Mr. Shehmir failed to answer or appear, the Commissioner for the

15th Judicial District Court entered a preliminary default judgment.

4

Later, on June 21, 2021, Home Bank presented a judgment to the trial court,

seeking the confirmation of the preliminary default entered on June 14, 2021.

Attached to that proposed judgment, default judgment certification was made,

attesting among others, that service of citation through the Louisiana Long Arm

Statute was made on Mr. Sherali on April 29, 2021, and Mr. Karim and Mr. Shehmir,

on May 4, 2021.

On June 28, 2021, the trial court granted judgment in favor of Home Bank and

against the three guarantors. The substance of the judgment was the same as that

detailed in favor of Home Bank and against Golden. Notice of judgment was mailed

to the three guarantors on June 30, 2021.

On September 2, 2021, Golden and the three guarantors filed a joint motion

and order for devolutive appeal.4 Their motion referenced only the judgment entered

on June 28, 2021, and the notice of judgment dated June 30, 2021. In its order dated

September 18, 2021, the trial court stated:

IT IS HEREBY ORDERED THAT Defendants, GOLDEN
LA PROPERTIES, LLC, SHERALI BAHADUR ALI, KARIM
KHANMOHAMED, AND SHEHMIR ALI, be granted a devolutive
appeal from the Judgment signed on June 28, 2021, on Plaintiff’s
Petition to Enforce Multiple Indebtedness Mortgage and Commercial
Security Agreement by Executory Process and Amended Petition for
Deficiency Judgment[.]”

In their brief, Golden and the guarantors contend that the trial court erred by:

(1) granting a preliminary default against Golden in the action for deficiency

judgment when the service on the limited liability company was defective on its face;

(2) granting a preliminary default judgment against Golden when the appraisal of

the property was not sufficiently detailed so as to allow for the sale of the property;

4
On October 5, 2021, Golden and the guarantors also filed a petition to nullify the two
default judgments in the trial court and further sought a preliminary injunction to stop Home Bank
from executing further actions regarding the seized property and collection of the debt.
5

(3) accepting incomplete returns of service by the Sheriff as sufficient to prove

personal service on the registered agent of Golden; (4) granting final default

judgment against Golden and the three guarantors based on the erroneously granted

preliminary default; (5) granting a preliminary default against the guarantors when

the affidavit of service failed to certify that citation and a certified copy of the

petition were served via the Long Arm statute; (6) granting a preliminary default

against the guarantors when the affidavit of service failed to attach receipts signed

by the guarantors being served or by attaching receipts signed by a recipient

identified as a person residing at the domicile of the individual guarantors; (7)

granting a preliminary default based on an affidavit of service that failed to identify

the persons actually served and providing information on the failed delivery receipts

sufficient to identify by full name and declared relationship of the person actually

served; (8) granting a deficiency judgment when the record of the executory process

shows defective service on the principal debtor, Golden LA Properties, LLC, of the

original and amended petition, of the notice of seizure and sale, and of the notice of

appointment of appraiser; (9) granting the preliminary judgment where the Sheriff’s

procès verbal and the appraiser’s report and the Sheriff’s Deed clearly show that the

immovable, movable, and intangible property seized was appraised “in globo” and

sold “in globo” and that the appraisal was clearly not sufficiently minute so as to

allow the seized movable property to be sold separately from the immovable

property and from the intangible property; (10) granting the preliminary default

judgment and the final default deficiency judgment where the in globo appraisal and

in globo sale of the property did not allow the determination of whether priced bid

was sufficient to satisfy the requirement for a two-third’s bid of the appraised value

based on the right of the borrower to get a credit equal to the “equivalent value” of

6

the movable and intangible property seized pursuant to the Commercial Security

Agreement and the inability to allocate the price to the immovable and movable and

intangible property; and (11) awarding excessive attorney fees of 25% of the

principal balance without a scintilla of evidence to support the award of such fees,

save and except the language in the promissory note allowing 25% attorney fee.

APPELLATE JURISDICTION

Before we reach any argument as to the merits of this joint appeal, we must

first address the question of whether we have jurisdiction to reach Golden’s

argument.

This case involves two default judgments. On June 14, 2021, the trial court

signed a default judgment in favor of Home Bank and against Golden; notice of

judgment was sent to Home Bank and Golden on June 16, 2021. Later, on June 28,

2021, the trial court signed a separate default judgment in favor of Home Bank and

against the guarantors, Mr. Karim, Mr. Sherali, and Mr. Shahmir; notice of judgment

was sent to Home Bank and the guarantors on June 30, 2021.

On September 2, 2021, Golden and the guarantors filed a joint motion and

order for devolutive appeal, referencing only the judgment entered on June 28, 2021,

and the notice of judgment dated June 30, 2021. In the motion appears language,

stating “a copy of which Judgment is attached hereto;” attached was a copy of the

judgment dated June 30, 2021. The language of that judgment clearly states that it

involves only the guarantors. The judgment of June 16, 2021, which solely

particularized Golden, was neither referenced nor attached to the motion and order

for devolutive appeal. Nevertheless, in its Order the trial court granted a devolutive

appeal to Golden as well as the three guarantors.

7

In their joint brief to this court, Golden references both judgments and

presents arguments about both judgments. It is problematic that Golden has not

referenced the judgment of June 14, 2021, the one that cast it in judgment, in the

motion and order for appeal dated September 2, 2021.

An appellant’s failure to file a devolutive appeal timely is a
jurisdictional defect, in that neither the court of appeal nor any other
court has the jurisdictional power and authority to reverse, revise or
modify a final judgment after the time for filing a devolutive appeal has
elapsed.

....

Thus, when an appellant fails to file a devolutive appeal from a
final judgment timely, the judgment acquires the authority of the thing
adjudged, and the court of appeal has no jurisdiction to alter that
judgment.

Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991). See also

Capital One, N.A. v. Fontana, 18-410 (La.App. 5 Cir. 7/31/18), 252 So.3d 995;

Harper v. Eschenazi, 04-863 (La.App. 5 Cir. 12/28/04), 892 So.2d 671.

To better assess this question, we turn to the jurisprudence. In Benoit v. Grey

Wolf Drilling, Inc., 498 So.2d 299 (La.App. 3 Cir. 1986), the plaintiff’s action was

dismissed with prejudice on a successful defense motion for summary judgment. A

motion and order of appeal filed by an intervenor was signed by the trial court. The

plaintiff himself filed no motion or order of appeal but later filed a motion to join

the appeal perfected by the intervenor. However, the delays for perfecting the appeal

had run when plaintiff filed his motion to join the appeal.5 The appeal was dismissed

on the appellee’s motion. “If the plaintiff is to preserve his right to appeal, he must

do [so] himself and not rely on another party.” Id. at 300; see also Golden Lane

5
In the present case, we observe that at the time Golden joined in the guarantors’ appeal,
the time had elapsed for Golden to have devolutively appealed the judgment against it dated June
14, 2021.
8

Marine, Inc. v. Bobben Fabricators, Inc., 338 So.2d 116, 117 (La.App. 4 Cir.), writ

denied, 340 So.2d 317 (La.1976).

Moreover, there is a difference between the right of a third party, who has an

interest in the judgment to intervene in proceedings as provided in La.Code Civ.P.

art. 2086, with the jurisdictional requirement that a party wishing to appeal an

adverse judgment must obtain an order of appeal. There can be no appeal absent an

order of appeal because the order is jurisdictional; this lack of jurisdiction can be

noticed by the court on its own motion at any time. Baton Rouge Ass’n of Sch.

Emp.’s, Local 100 Serv. Emps. Int’l Union, AFL–CIO v. East Baton Rouge Par. Sch.

Bd., 98-0526 (La.App. 1 Cir. 4/1/99), 729 So.2d 1154, writ denied, 99-1278 (La.

7/2/99), 747 So.2d 19; Strickland v. Layrisson, 96-1280 (La.App. 1 Cir. 6/20/97),

696 So.2d 621, writ denied, 97-1940 (La. 11/14/97), 704 So.2d 228.

In the case now before the court, the record shows Golden is unable to fashion

any arguments that would excuse its failure to obtain and file a timely order of appeal

by which it could protect its significant pecuniary interest in these proceedings.

Simply stated, the failure of Golden to obtain a timely order of appeal from the

judgment which casts it liable to Home Bank constitutes a forfeiture of its right to

appeal. Under these circumstances, we have no jurisdiction to address Golden’s

arguments. Therefore, we dismiss Golden’s appeal, and turn our attention to the

guarantors’ timely filed appeal.

LAW AND DISCUSSION

The guarantors first argue that the deficiency judgment should be reversed

because proper service of the notice of seizure and sale as well as the notice of

appraisal on Golden was not sufficiently proven to sustain the default deficiency

judgment rendered against them.

9

In reviewing default judgments, an appellate court is restricted to determining

the sufficiency of the evidence offered to support the judgment; that determination

is a factual one governed by the manifest error standard of review. Arias v.

Stolthaven New Orleans, LLC, 08-1111 (La. 5/5/09), 9 So.3d 815; Bordelon v. Sayer,

01-717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La.

6/21/02), 819 So.2d 340.

In First Guaranty Bank, Hammond, Louisiana v. Baton Rouge Petroleum

Center, Inc., 529 So.2d 834, 841-42 (La.1987) (footnotes omitted), the Louisiana

Supreme Court set forth the requirements for a deficiency judgment, as follows:

When the property has been sold under the executory
proceedings after appraisal and in accordance with statutory provisions
governing appraisal, the creditor may obtain a personal judgment
against the mortgagor for any deficiency remaining after the application
of the net proceeds of sale to the secured debt. La.C.Civ.P. art. 2771.
However, the creditor can do so only by converting the executory
proceeding into an ordinary one, or by instituting a new suit against the
mortgagor. La.C.Civ.P. arts. 2644, 2772. Under either method, the
new proceeding is a personal action, in which the defendant has all of
the rights of a defendant in an ordinary proceeding, e.g. he must be
subjected personally to the jurisdiction of the court and process must be
served on him. The confession of judgment, having served its purpose
in the executory proceeding, has become functus officio, and the
mortgagee must prove the indebtedness asserted by the usual modes of
proof. La.C.Civ.P. art. 2772; New Orleans Canal & Banking Co. v.
Hagan, 1 La.Ann. 62, 66 (1846); Liquidators of Prudential Savings &
Homestead Society v. Nassans, 8 La.App. 712 (1928); McMahon, [The
Historical Development of Executory Procedure in Louisiana, 32
Tul.L.Rev. 555, 571 (1958)].

To obtain a deficiency judgment, the creditor first must
affirmatively plead and prove the existence of the obligation giving rise
to the debt, La.C.C. art. 1831, and the grounds of non-performance
entitling him to maintain his judicial action. La.C.C. art. 1994. Further,
he must aver and establish by evidence that the property was sold under
the executory proceeding after appraisal in accordance with the
provisions of article 2723 of the Code of Civil Procedure; Gordon
Finance Co. v. Chambliss, 236 So.2d 533 (La.App. 2d Cir.1970), writ
denied, 256 La. 869, 239 So.2d 364 (1970); Pickering v. Kinney, 205
So.2d 199 (La.App. 2d Cir.1968); and that the proceeds received were
insufficient to satisfy the balance of the performance then due.
La.C.Civ.P. art. 2771; La.R.S. 13:4106; 4107. The appraisal
10

procedures of article 2723 require that prior to the sale, the property
seized must be appraised in accordance with law, and the order
directing the issuance of the writ of seizure and sale must have directed
that the property be sold as prayed for. Other statutory law sets forth
the procedures for written notices to the debtor and seizing creditor, the
appointment of appraisers, the sheriff’s appointment of an appraiser if
a party neglects to do so, delivery of appraisals, oaths of appraisers, and
the form of the appraisals. La.R.S. 13:4363–4365.

The debtor, on the other hand, may assert both negative and
affirmative defenses against the deficiency judgment action. He may
defend by demonstrating the creditor’s failure to prove one of the
aforementioned elements of his case or by rebutting the existence of
such an element. Additionally, the debtor may assert that an obligation
is null, or that it has been modified or extinguished, but in such a case
the debtor must prove the facts or acts giving rise to the nullity,
modification, or extinction. La.C.C. art. 1831; La.C.Civ.P. art. 1005.

Our review of the guarantors’ argument shows that they question whether the

various notices were properly provided to Golden in the original executory

proceeding. To address their argument, we must review the service requirements

enunciated in the Code of Civil Procedure and the specific notices required in

executory proceedings.

“Citation is not necessary in an executory proceeding.” La.Code Civ.P. art.

2640; see also La.Code Civ.P. art. 1201(A) (“Citation and service thereof are

essential in all civil actions except in summary and executory proceedings . . . .”).

Nevertheless, the notice of seizure and sale mandated by La.Code Civ.P. art.

2721(B) is in most cases “the only notice a defendant receives of the foreclosure.”

Sec. Homestead Ass’n v. Fuselier, 591 So.2d 335, 340 (La.1991). To that end,

La.Code Civ.P. art. 2721(B) (emphasis added), provides, in part, that “[t]he sheriff

shall serve upon the defendant a written notice of the seizure of the property. Such

notice of seizure shall be accomplished by personal service or domiciliary service.”

Likewise, regarding appraisal, La.R.S. 13:4363(A) (emphasis added)

mandates the following:

11

Not less than seven days, exclusive of holidays, before the sale
of seized property, the sheriff shall serve written notice on the debtor
and on the seizing creditor, in the manner provided for the service of a
citation, directing each to name an appraiser to value the property and
to notify the sheriff of his appointment prior to the time stated in the
notice, which shall be at least four days, exclusive of holidays, prior to
the time of the sale. The appraisal of the debtor and seizing creditor
shall be made and delivered to the sheriff at least two days, exclusive
of holidays, prior to the time of the sale.

In the present case, both the notice of seizure and sale and the notice to appoint

appraiser directed service to be made on Golden “THROUGH ITS REGISTERED

AGENT FOR SERVICE OF PROCESS, MR. JEFFERSON J. MOSS, JR., 814 S.

WASHINGTON STREET, LAFAYETTE, LA 70501 of the Parish of Lafayette.”

Both Sheriff’s Returns show personal service was made on November 23, 2020, and

identifies “Rosie” as the recipient.

Relying on La.Code Civ.P. art. 1266, the guarantors argue service on Golden,

a limited liability company, had to be made “by personal service on any one of its

agents for service of process.” As shown on both the notice of seizure and sale and

the notice to appoint appraiser, Golden’s registered agent for service of process was

Mr. Moss. It is also evident from the Sheriff’s Return that personal service was not

made on Golden’s registered agent for service of process.

As noted above, citation and service are not essential in executory

proceedings. La.Code Civ.P. art. 2640; La.Code Civ.P. art. 1201(A). With that in

mind, we observe that La.Code Civ.P. art. 2721(B) allows the sheriff to provide the

notice of seizure and sale on the debtor, utilizing either personal or domiciliary

service of the notice of seizure and sale on the debtor. And La.R.S. 13:4363(A)

directs the sheriff to provide the debtor with the notice to assign appraiser “in the

manner provided for the service of a citation”; thus, at least by implication, La.R.S.

13:4363(A) mandates the personal service required on the registered agent of a

12

limited liability company detailed in La.Code Civ.P. art. 1266. Against that

backdrop, our first task is to determine whether the notice requirements mandated

for the notice of seizure and sale and the notice to appoint appraiser as they relate to

Golden, a limited liability company, are different or the same as those specified in

La.Code Civ.P. art. 1266.

The issue presented is solely a question of law, requiring the interpretation of

a statute. Thus, our review is de novo. Hartman v. St. Bernard Par. Fire Dep’t &

Fara, 20-693 (La. 3/24/21), 315 So.3d 823; Louisiana Mun. Ass’n v. State, 04-227

(La. 1/19/05), 893 So.2d 809.

“The starting point for interpretation of any statute is the language of the

statute itself.” State v. Williams, 10-1514, p. 6 (La. 3/15/11), 60 So.3d 1189, 1192

(quoting Cat’s Meow v. City of New Orleans, 98-601, p. 15 (La. 10/20/98), 720 So.2d

1186, 1198). “[A] fundamental principle of statutory interpretation [is] that when a

‘law is clear and unambiguous and its application does not lead to absurd

consequences, the law shall be applied a[s] written, and no further interpretation may

be made in search of the intent of the legislature.’” McLane S., Inc. v. Bridges, 11-

1141, pp. 5-6 (La. 1/24/12), 84 So.3d 479, 483, (quoting Harrah’s Bossier City Inv.

Co., LLC v. Bridges, 09-1916, p. 11 (La. 5/11/10), 41 So.3d 438, 446-47 (citing

La.Civ.Code art. 9)).

As explained in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, pp. 12-13

(La. 7/1/08), 998 So.2d 16, 26-27 (citations omitted):

The function of statutory interpretation and the construction
given to legislative acts rests with the judicial branch of the
government. The rules of statutory construction are designed to
ascertain and enforce the intent of the Legislature. Legislation is the
solemn expression of legislative will and, thus, the interpretation of
legislation is primarily the search for the legislative intent. We have
often noted the paramount consideration in statutory interpretation is

13

ascertainment of the legislative intent and the reason or reasons which
prompted the Legislature to enact the law.

Moreover, “[t]he words of a law must be given their generally prevailing meaning.”

La.Civ.Code art. 11.

When, on the other hand, a statute is not clear and unambiguous, or its
application leads to absurd consequences, we rely on secondary rules
of statutory interpretation to discern the meaning of the statute at issue.
See Red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev.,
10-0193, p. 10 (La. 1/19/11), 56 So.3d 181, 187-88 (quotation omitted).
In such cases, the statute “must be interpreted as having the meaning
that best conforms to the purpose of the law. Moreover, when the words
of a law are ambiguous, their meaning must be sought by examining
the context in which they occur and the text of the law as a whole.” Id.

Borcik v. Crosby Tugs, L.L.C., 16-1372, pp. 4-5 (La. 5/3/17), 222 So.3d 672, 675.

Furthermore, the laws of statutory construction require that “laws on the same

subject matter be interpreted in reference to each other. La.Civ.Code art. 13.”

Louisiana Mun. Ass’n, 893 So.2d at 837. “[W]here it is possible, courts have a duty

in the interpretation of a statute to adopt a construction which harmonizes and

reconciles it with other provisions dealing with the same subject matter.” Id.;

Hollingsworth v. City of Minden, 01-2658, p. 4 (La. 6/21/02), 828 So.2d 514, 517;

Borel v. Young, 07-0419, p. 15 (La. 11/27/07), 989 So.2d 42, 61, on reh’g (7/1/08).

After reviewing the statutes, the law, and the jurisprudence, we find we do not

have to resolve the seemingly contradictory provisions posed by the differing

statutes that describe the sheriff’s duty relative to the service of notice of the seizure

(personal or domiciliary) and sale and notice of appraisal (in the manner of citation,

i.e., personally on the registered agent of the limited liability company).

As reflected in the jurisprudence, the failure of either notice requirement in an

executory proceeding is sufficient to cause a reversal of the deficiency judgment

against the guarantors. See First Guar. Bank, 529 So.2d 834.

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Louisiana Revised Statutes 13:4363(A) (emphasis added) clearly directs the

sheriff to provide the debtor with the notice to assign the appraiser “in the manner

provided for the service of a citation[.]” As provided in La.Code Civ.P. art. 1266, a

provision appearing in Title II, Citation and Service of Process, Chapter 3, Service

on Legal and Quasi Legal Entities, personal service on Golden’s registered agent

was required. As evident from the Sheriff’s Return in the record, service on “Rosie”

did not meet that requirement. We acknowledge that La.Code Civ.P. art. 1266(B)

provides alternative modes of service should the limited liability company have

failed to designate an agent for service of process or “if the person attempting to

make service certifies that he is unable, after due diligence, to serve the designated

agent[.]” However, the record is void of certification that the required service could

not have been made in the manner required by La.Code Civ.P. art. 1266(A). This

failure alone is sufficient to show that Home Bank did not establish by evidence in

support of its amended petition for deficiency judgment that the property was sold

under the executory proceeding after appraisal in accordance with the law. Thus,

we reverse the deficiency judgment granted against the guarantors.6

DISPOSITION

For the foregoing reasons, we dismiss Golden LA Properties, LLC, from this

appeal. Furthermore, we reverse the deficiency judgment granted in favor of Home

Bank and against the guarantors, Sherali Bahadur Ali a/k/a Sherali Bahadur, Karim

Khanmohamed, and Shehmir Sherali. This matter is remanded to the trial court to

address the pending action for nullity brought against Home Bank. Costs of this

appeal are assessed to Home Bank, N.A.

6
Because we find the guarantors’ argument as to the sufficiency of the service of notice
dispositive of this appeal, we do not have to reach the guarantors’ other assignments of error.
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APPEAL DISMISSED, IN PART; JUDGMENT REVERSED; CASE

REMANDED.

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