A petition for nullity for a vice of substance may be brought if a judgment is obtained by fraud or ill practices.1 This type of nullity action must be brought within one year of discovery of the fraud or ill practices.2 A judgment annulled for a vice of substance is relatively null.3 An action for nullity for vice of substance must be brought by petition with citation and proper service of process.4 The action must proceed as an ordinary proceeding, but may be filed in the original eviction case.5
Louisiana courts have established two criteria to determine if a judgment was obtained by fraud or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) the enforcement of the judgment would be unconscionable and inequitable.6 Even if no intentional wrongdoing or fraud is found, a judgment may be annulled where its enforcement would be unconscionable, inequitable and in impairment of a legal right.7 The court may award attorney fees if the eviction judgment is annulled for fraud or ill practices.8
Misrepresentations by the landlord that are material to obtaining the default judgment are also grounds for nullification under La. C.C.P. art. 2004 .9 The typical misrepresentations that occur in eviction defaults are that the lease is only month-to-month when the tenant has a written lease for a fixed term (and therefore cannot be evicted without cause) and nonpayment of rent when the landlord has, in fact, accepted the rent.
- 1La. C.C.P. art. 2004.
- 2Id.
- 3Raine v. Raine, 2015-1161 (La. App. 4 Cir. 08/03/16), 197 So. 3d 854, 857.
- 4Nethken v. Nethken, 307 So. 2d 563, 565 (La. 1975).
- 5Gazebo, Inc. v. City of New Orleans, 97-2769 (La. App. 4 Cir. 3/23/98), 710 So. 2d 354, 358.
- 6CA One/Pampy’s v. Brown, 2007-1377 (La. App. 4 Cir. 04/02/08), 982 So. 2d 909; see also Power Mktg. Direct, Inc. v. Foster, 05-2023 (La. 09/06/2006), 938 So. 2d 662.
- 7Kem Search, Inc. v. Sheffield, 434 So. 2d 1067 (La. 1983); Bradford v. Thomas, 499 So. 2d 525 (La. App. 2 Cir. 1986).
- 8La. C.C.P. art. 2004(C).
- 9Cf. Temple v. Jackson, 376 So. 2d 972 (La. App. 1 Cir. 1979).