### STATE OF LOUISIANA COURT OF APPEAL 

## J FIRST CIRCUIT

2022 CA 0626 VELOCITY INVESTMENTS, LLC

VERSUS ADAM PASQUA

JUDGMENT RENDERED: ' 

## JAN 10 2023

Appealed from Ascension Parish Court Parish ofAscension • State of Louisiana

Docket Number 2021- 008 The Honorable Erin W. Lanoux, Presiding Judge

Garth Jonathan Ridge COUNSEL FOR APPELLANT Baton Rouge, Louisiana DEFENDANT— Adam Pasqua Mary Grace Pollet COUNSEL FOR APPELLEF, Adam R. Deniger PLAINT[ FF- Velocity Investments, Gregory M. Eaton LLC Michael L. Lancaster Baton Rouge, Louisiana

BEFORE: WELCH, PENZATO, AND ZANIER, JJ.

UV Car)cWELCH, J.



### In this matter, the parish court granted summaryjudgment in favor ofa debt collectorforthe balance and interest owed on the note ofa repossessed motorvehicle 

### thatwas disposed ofat sheriff's sale.The debtorappealed. Forthe following reasons,

we reverse. FACTS AND PROCEDURAL HISTORY Adam Pasqua purchased a used 2011 Infiniti G37 on November 28, 2014, for the total cash price of $

### 44,744.24 from North American Automotive Group in Gonzales, Louisiana. Mr. Pasqua made an initial down payment of $ 2,000.00 and 

### financed the remaining $42,744.24 purchase price through a retail installment sale 

### contract calling for seventy-two ( 72) monthly payments of $593. 67 at 20.95% 

### interest. The contract granted the creditor - seller a security interest in the vehicle.' The contract provided:

3. IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES 

### c. You may have to pay attorney' s fees and collection 

### costs. Ifwe hire an attorney to collect what you owe... . 

### d. We may tame the vehicle from you. Ifyou default,we may take (repossess) the vehicle from you after we give you any notice and wait the time the law requires.... We 

### may only take the vehicle ifwe do so peacefully and the law allows it....
e. How you can get the vehicle back ifwe take it. Ifwe 

### repossess the vehicle,you may pay to get it back (redeem). We will tell you how much to pay to redeem. Your right to redeem ends when we sell the vehicle. L We will sell the vehicle ifyou do not get it back. Ifyou do not redeem, we will sell the vehicle. We will send you 

### a written notice ofsale before selling the vehicle. 

### We will apply the money from the sale, less allowed expenses, to the amount you owe.... 

### If money from the sale is not enough to pay the amount you owe, you must 

### pay the rest to us. Ifyou do not pay the amount when we Specifically, the contract provided: " Security Interest. You are giving a security interest in the vehicle being purchased."

2

### ask, we may charge you interest on that amount until you pay at the Base Rate shown on the front ofthis contract. 

### North American Automotive Group assigned its rights in Mr. Pasqua' s contract to Consumer Portfolio Services, Inc. (" CPS"). After Mr. Pasqua defaulted 

### on the requisite monthly payments underthe contract, CPS repossessed the vehicle 

### in May 2017, and had it sold at sheriff's sale in July2017. In November 2018, CPS assigned and transferred all its rights, title, and interest in Mr. 

### Pasqua' s contract to Velocity Investments, LLC (" 

### Velocity"). 

### Velocity filed suit to recover the balance of the contract allegedly totaling 15, 960.82, together with 5. 75% interest from the date ofjudgment, and costs. Mr. 

### Pasqua answered the petition, entering general denials and raising the issue ofthe commercial reasonableness ofthe sale of the repossessed vehicle.' 

### Thereafter, Velocity filed a motion for summaryjudgment arguing thatthere
was no genuine issue of material fact that Mr. Pasqua owed the $ 15, 960. 82 balance 

### under the contract. Mr. Pasqua opposed Velocity's motion, contending that the 

### default notices allegedly sent to hint,the repossession ofthe vehicle, and the sale of 

### the vehicle did not comply with the Uniform Commercial Code (" UCC"). 

### Following a hearing held on December 14, 2021, the parish court granted 

### Velocity's motion for summaryjudgment. The parish court signed ajudgment in accordance with its ruling on December 22, 2021, in favor ofVelocity and against Mr. Pasqua in the amount of $ 15, 960. 82, together with 5. 75% interest from the date ofjudgment,' plus all costs ofthe proceedings. Mr. Pasqua now appeals!

I Mr. Pasqua admitted only his domicile; he denied every other allegation in the petition "for lack ofsufficient information tojustify a belieftherein." 

### 3Although prayed forbyVelocity in its petition,the parish court erred in awardingjudicial interest at the rate of 5. 75% from the date ofjudgment. Thejudicial interest rate for 2021. was 3. 5%. See La. R.S. 13. 4202(B); see also Louisiana Bar Journal, " 2021 Judicial Interest Rate is 3. 5%," December2020/January 2021, Vol. 68, No. 4, p. 282. 

### 4 Mr. Pasqua timely filed a motion for a devolutive appeal on January 5, 2022. The parish court signed an order of appeal on January 20, 2022, notice ofwhich was transmitted by the Clerk of Court to the parties on January 26, 2022.
3SUMMARY JUDGMENT



### Appellate courts review summaryjudgments de novo, using the same criteria that govern the trial court' s consideration of whether summary judgment is 

### appropriate. In re Succession of Beard, 2013- 1717 (La. App. 1st Cir. 616114), 147 

### So.3d 753, 759-60. That is, after an opportunity for adequate discovery, summary judgment shall be granted ifthe motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C. C.P. art. 966(A)(3). 

### The burden of proof on a motion for summary judgment rests with the

mover—

### here, Velocity. La. C.C.P. art. 966(D)( 1). If the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for 

### summaryjudgment,the mover's burdenonthe motion does not require himtonegate all essential elements of the adverse party' s claim, action, or defense. Rather, the
mover must point out to the court the absence of factual support for one or more 

### elements essential tothe adverse party' s claim, action, or defense.' The burden is on 

### the adverse partyto produce factual support sufficient to establish the existence ofa genuine issue ofmaterial fact orthat the mover is not entitled tojudgment as a matter of law. La. C.C.P. art. 966( D)( 1). 

### Ifthe non-moving party fails to do so, there is no genuine issue of material fact and summaryjudgment will be granted. Murphy v. Savannah, 2018-0991 ( La. 5/ 8/ 19), 282 So.3d 1034, 1038. 

### In ruling on amotion forsummaryjudgment,the court's role is notto evaluate the weight ofthe evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. See Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue



### s As the plaintiff,Velocity bears the burden ofproofat trial to establish aprimafacie case ofa 

### debt owed to it by Mr.Pasqua. Once aprimafacie case has been established bythe plaintiffby a preponderance ofthe evidence, the burden shifts to the defendant, here, Mr. Pasqua. See Dupre v. Joe' s Riverside Seafood, Inc., 578 So.2d 158, 163 ( La. App. I" Cir. 1991).

4

### is one astowhich reasonable personscould disagree. However, ifreasonable persons



### could reach only one conclusion, there is no need fortrial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66; Marks v. Schultz, 2020-0197 

### La. App. I" Cir. 12/ 10/20), 316 So.3d 534, 538. Material facts are those that 

### potentially insure orpreclude recovery, affectthe litigant's success, ordetermine the 

### outcome of a legal dispute. Jenkins v. Hernandez, 2019-0874 ( La. App. 1st Cir. 613120), 305 So.3d 365, 371, writ denied, 2020- 00835 ( La. 10/20120), 303 So.3d 315. In other words, a fact is " material" when its existence or nonexistence is essential to the plaintiff' s cause of action under the applicable theory of recovery. 

### Smith v. Our Lady ofthe Lake Hosp., Inc., 93- 2512 ( La. 715194), 639 So.2d 730, 

### 751. Any doubt as to a dispute regarding an issue ofmaterial fact must be resolved against granting the motion and in favor ofa trial on the merits. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in 

### dispute is material can be seen only in light ofthe substantive law applicable to the
case. Shoemake v. Scott, 2019- 1261 ( La. App. 1st Cir. 8/3/20), 310 So.3d 191, 193- 94. LAW AND DISCUSSION 

### In support of its motion for summary judgment, 

### Velocity submitted6 its
original petition; Mr. Pasqua' s answer; Mr. Pasqua' s admissions; Mr. Pasqua"s

6 Louisiana Code of Civil Procedure article 966(A)(4) provides that "[ tjhe only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." 

### Also attached to Velocity's motion were: request for admission of fact; note interrogatories; surrender interrogatories; request for genuineness of documents and request for production of documents; Mr. Pasqua' s response to requests for genuineness and production of documents; and an October 7, 2020 letter from Velocityto Mr.Pasqua notifying him that Velocity had received his account for collection. The above -listed documents do not fall into any category ofdocuments listed in La. C. C.P. art. 966(A)(4); however, those documents were not objected to. Thus, under La. C.C.P. art. 966(D)(2), this court " shall consider any documents to which no objection is made" to determine, de novo, if any evidentiary value should be given to the documents. See Pottinger v. Price, 2019-0183 (La.App. 1St Cir. 10/23119), 289 So. 3d 1047, 1053. Pursuant to La. C.C.P. arts. 1441, 1466-67, and 1457-59, we find that the request for admission of fact,the interrogatories, and requests forand response to production ofdocuments have evidentiary value in conjunction with the corresponding responsive evidence, i.e., Mr, Pasqua's admissions, answers to the interrogatories, and produced documents. However, the October 7, 2020 letter is an unsworn and unverified document because it was not attached to an affidavit or otherwise

5answers to " note" interrogatories; Mr. Pasqua' s answers to " surrender"

interrogatories; and the affidavit of Alia Shaalan, a compliance associate of 

### Velocity's legal network, along with several attachments, including the sale and assignment of certain accounts from CPS to Velocity; CPS' s affidavit of sale of 

### account to Velocity; the November 28, 2014 retail installment sale contract; North American Automotive Group's assignment of Mr. Pasqua's contract to CPS; Mr. 

### Pasqua' s credit statement application; Velocity's pre - possession notice; Velocity' s notice of plan to sell vehicle; sheriffs sale bill ofsale; and an account spreadsheet. Velocity' s Affidavit In his first, second, and fifth assignments of error, Mr. Pasqua argues that the 

### parish court erred by granting summaryjudgment because the evidence submitted 

### by Velocity in support ofits motion was not properly authenticated, specifically the attachments to Ms. Shaalan' s affidavit. Mr. Pasqua further argues that the evidence attached to Ms. Shaalan' s affidavit was not admissible under the business records 

### exception to the hearsay rule. Mr.Pasqua also contends that Ms. Shaalan's affidavit does not comply with La. R.S. 13: 3733(D). Louisiana Code of Civil Procedure article 967(A) provides, in pertinent part: 

### Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively 

### that the affiant is competent to testify to the matters stated therein." Personal 

### knowledge encompasses only those facts that the affiant saw, heard, or perceived with his own senses. See Berard v. L-3 Communications Vertex Aerospace,

authenticated. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summaryjudgment. Therefore, 

### in meeting the burden of proof,unsworn or unverified documents, such as the October 7, 2020 letter, annexed to motions for summaryjudgment are not self - proving and will not be considered; 

### attaching such documents to a motion forsummaryjudgment does nottransform such documents into competent summaryjudgment evidence. See Bunge N. Am., Inc.v. Bd. of Corn. & Indus. Louisiana Dep' tofEcon. Dev., 2007-1746 (La.App. I" Cir. 5/ 2/0$), 991 So.2d 511, 527, writ denied, 2008- 1594 ( La. 11/ 21108), 996 So.2d 1106.

no

### LLC,2009- 1202 (La. App. 1St Cir. 2/ 12/ 10), 35 So.3d 334, 349, writ denied, 2010-

0715 ( La. 6/4/ 10), 

### 38 So.3d 302. An affirmative showing ofcompetency cannot be established without a predicate showing ofpersonal knowledge. Otherwise, personal knowledge may be based on hearsay or other incompetent evidence. Unifund CCR Partners v. Perkins,2012- 1851 ( La. App. 1st Cir. 9/25113), 134 So.3d 626, 631- 32. 

### With regard to business records,the following are notexcluded bythe hearsay rule of La. C. E. art. 803( 6), even though the declarant is available as a witness:



### Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any 

### form, including but not limited to that which is stored by the use ofan optical disk imaging system, ofacts, events, conditions, opinions, or diagnoses, made at or near the 

### time by,orfrom informationtransmitted by, a person with knowledge, ifmade and kept in the course ofa regularly conducted business activity, and if it was the regular 

### practice ofthat business activity to make and to keep the memorandum, report, record, or data compilation, all as 

### shown by the testimony ofthe custodian orother qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either 

### by a person who was routinely acting for the business in reporting the information or in circumstances underwhich the statement would not be excluded by the hearsay rule. 

### Louisianajurisprudence has held thatthe wording ofLa. C.E. art. 803(6) does not preclude the introduction of incorporated business records originally generated 

### by another business, ifproperly authenticated and determined to be trustworthy by the trial court. See Burdette v. Drushell, 2001- 2494 ( La. App. 1St Cir. 12/20/02), 837 So.2d 54, 62-63, writ denied, 2003- 0682 (La. 5/ 16/03), 

### 843 So.2d 1132. A party 

### who seeks to submit written hearsay evidence pursuant to La. C.E. art. 803(6) must authenticate it by a qualified witness. 

### The witness laying the foundation for 

### admissibility ofthe business records does not have to be the preparer ofthe records. Finch v. ATCNancom Management Services Ltd. Partnership, 2009-483 ( La. 

### App. 5" Cir. 01/ 26/ 10), 

### 33 So.3d 215, 220. A qualified witness only needs to be

7

### familiar with the record-keeping system ofthe entity whose business records are

sought to be introduced. Id. at 220. Louisiana Revised Statutes 13: 3733 provides, in pertinent part: 

### A.Any business may cause any orall records kept bysuch business in regular course of its operation to be recorded, copied, or reproduced 

### by any electronic 

### imaging, photographic, photostatic or miniature photographic process which correctly, accurately, and permanently copies, 

### reproduces or forms a medium for copying or reproducing the original record on a film or other durable material... . B. 

### Any such electronically imaged, photographic, photostatic or miniature photographic copy or reproduction shall be deemed to be an original record for all purposes and shall be treated as an original record in all courts or administrative agencies for the purpose of its 

### admissibility in evidence.... Section 3733(D) additionally provides that a copy or reproduction shall be deemed 

### an original or authentic copy ofthe original record or document when certified with

a certificate reading " substantially" as follows. " I, 

### do hereby certify that this 

### document is atrue and correct copy ofthe original thereof,consisting of page(s), 

### being a reproduction thereof from the records on file with the undersigned, in accordance with Louisiana Revised Statutes, Title 13, Section 3733." 

### Ms. Shaalan, by way ofaffidavit, states that she is employed as a compliance 

### associate with Velocity' s legal network, the servicer of "defendant's account" on 

### behalfofVelocity. Ms. Shaalan states thatshe is " familiar and well acquainted" with Mr. Pasqua' s account and " 

### is duly qualified and authorized to make this affidavit based upon personal knowledge and business records of [Velocity] as well as the account information supplied to [ 

### Velocity]." Ms. Shaalan specifically states that 

### Velocity is the holder ofcredit issued through CPS, which shows atotal balance on the auto loan account of Adam Pasqua in the amount of $15, 960. 82, subject to a

credit of $.

00, as of October 15, 2020. She certified that all documents attached to 

### her affidavit are correct originals or true and correct copies ofthe originals, being

K

### reproductions from the records on file with Velocity in accordance with La. R.S.

13: 3733. Based on the applicable law, we conclude that Ms. Shaalan' s affidavit meets the personal knowledge requirements of La. C. C. P. art. 967(A). The affidavit 

### contains facts and information setting forth the basis of Ms. Shaalan' s personal 

### knowledge and competency to testify to the matters stated. The affidavit identifies 

### her position of employment with Velocity and shows that she has personal knowledge regarding Velocity's business records. The affidavit disclosestherecords that were seen and reviewed by Ms. Shaalan with respect to Mr. Pasqua' s account. The affidavit also indicates that the documents in question are attached to it. Ms. Shaalan' s affidavit certified that the business records complied with La. R.S. 13: 3733. Because neither Ms. Shaalan' s affidavit nor the documents attached to it 

### provide any indication ofa lack oftrustworthiness, we find that the documents as a whole sufficiently authenticate Velocity' s claims. As it concerns La. C. E. art. 803( 6)' 

### s business records hearsay exception, Ms. Shaalan' s affidavit establishes that she is a qualified witness. Where business records 

### are concerned, La. C.C.P. art. 967 is satisfied when the affiant is qualified to identify the business records as such. Where the affiant is familiar with the account and business records, 

### it is not necessary for the affiant to show that she personally prepared the business records or that she had direct, independent, first-hand knowledge of their contents. Durand v. Graham, 2019- 1312 ( 

### La. App. 1St Cir. 6/ 12/20), 306 So.3d 437, 442. 

### Finally, while Ms. Shaalan's affidavit does not contain the exact language provided for by La. R.S. 13: 3733( D), we nonetheless find that the affidavit substantially" certifies that the documents are true and original copies as required

9

### by the statute. Accordingly, we find that these assignments of error are without

merit.' Disposition of Collateral After Default 

### In his third and fourth assignments oferror, Mr. Pasqua argues that Velocity failed to prove that the sale of his repossessed vehicle was " commercially

reasonable." 

### Mr.Pasqua specificallyargues that he did not receivethe propernotices required under Louisiana' s commercial law. In 1990, Louisiana adopted its own version of Article 9 ofthe UCC with the enactment of Louisiana UCC Chapter 9 (" LA UCC - 9"), found at La. R.S. 10:9- 101, 

### etseq. The LA UCC -

9 creates and regulates security interests, which is an " interest 

### in personal property or fixtures, created by contract, which secures payment or performance of an obligation." La. R.S. 10: 1- 201( b)(35). Under LA UCC - 9, a 

### security interest in favor ofa secured parry attaches to collateral ( i.e., the movable 

### subjecttothe security interest)' atthe moment thatthe security interest is enforceable against the debtor. La. R.S. 10: 9- 203. 

### LA UCC -

9 does allow self-help repossession in cases expressly provided by other law. See La. R.S. 10:9-609(a)( 4). In 1992, our Legislature enacted the 

### Additional Default Remedies Act (Louisiana' s Self - Help Law), permitting certain 

### categories ofcreditors limited self-help repossession rights under strictly regulated procedures. See La. R.S. 6:965-967. The remedies available under this law are in 

### addition to all other remedies available to enforce nonpossessory security interests. See La. R.S. 6: 965( B), 6: 966(E). 

### The statute can be used only to repossess " motor

vehicles" and " motorcycles" as defined in La. R.S. 32: 1252. See La. R.S.

7 We pretermit discussion ofMr. Pasqua' s final assignment oferror (No. 6). In ourde novo review 

### ofVelocity's motion for summaryjudgment, we only considered thedocuments admissible under La. C.C. P. art. 966(A)(4). Accordingly, the only affidavit (and attachments) that we considered was the one filed in conjunction with Velocity' s motion for summaryjudgment. s La. R.S. 10:9- 102(a)( 12) ("` Collateral' means the property subject to a security interest ....")

106: 965(C)( 2). 

### Louisiana' s Self - Help Law permits the repossession ofmotor vehicles 

### upon default bythe debtorwithoutjudicial processto enforce asecurity interest.The process is outlined in La. R.S. 6: 966, in pertinent part, as follows:

A. (2) Prior to the use of the procedures set forth in this 

### Chapter, a secured party shall send notice to all debtors in writing at the last known address of the debtors, of the right of the secured party to take possession of the collateral without further notice upon.default as defined in R.S. 6: 965( C). Such notice shall include the debtor' s name, last known address, and description ofthe collateral 

### and the following in at least twelve - point type: Louisiana law permits repossession of motor vehicles upon default without further notice orjudicial process." 

### 3) Afterobtaining possession ofthe collateral,the secured party may dispose of it in any manner permitted by Chapter 9 of the Louisiana Commercial Law, R.S. 10: 9- 101 et seq. or 

### by resort to available judicial 

### procedures, and may cause the collateral to be retitled.... B. Unless otherwise agreed, 

### a secured party has, on default, the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process ifthis can be done without a breach ofthe 

### peace or may proceed by other remedies available by law.
E. 

### The secured party shall have and retain all of the possessory and enforcement rights provided under Chapter 9 of the Louisiana Commercial Laws, R.S. 10: 9- 

### 101 et seq., including the right to recover a deficiency or any other costs associated with the seizure 

### proceeding provided for in this Chapter. [ Emphasis added.] As set forth in La. R.S. 6: 966(A)(3), 

### the secured party may dispose ofthe 

### repossessed collateral in any manner permitted by LA UCC - 9. The disposition of collateral afterdefault is governed by La. R.S. 10:9-610, in part, as follows:
a) Disposition after default. After default, a secured 

### party may sell, lease, license, or otherwise dispose ofany or all ofthe collateral in its present condition or following any commercially reasonable preparation or processing. 

### b) Commercially reasonable disposition. Every aspect of a disposition of collateral, 

### including the method, manner, time, place, and other terms, must be 

### commercially reasonable. If commercially reasonable, a 

### secured party may dispose of collateral by public or

11

### private proceedings, by one or more contracts, as a unit or parcels, and at any time and place and on any terms. A disclaimer or modification of warranties in a secured party' s disposition of collateral is commercially reasonable. 11l 

### A secured party that intends to dispose ofcollateral under La. R.S. 10:9- 610 shall send a reasonable authenticated notification of disposition to the debtor. La. R.S. 10: 9- 61I(b). 

### To comply with the " reasonable authenticated notification" requirement of La. R.S. 10: 9- 611( b), the contents of a notification must include the 

### following information—as set forth generally in La. R.S. 10:9-613( 1)—

A) describes the debtor and the secured party; B) describes the collateral that is the subject of the intended disposition; C) states the method of intended disposition; 

### D) states that the debtor is entitled to an accounting ofthe 

### unpaid indebtedness and states the charge, ifany, for an accounting; and E) states the time and place of a public disposition or the 

### time afterwhich any other disposition is to be made. and as set forth more specifically for consumer goods in La. R.S. 10:9-614( l)—

A) the information specified in R.S. 10: 9- 613( 1); 

### B) a description of any liability for a deficiency of the person to which the notification is sent; C) a telephone number from which the amount that must 

### be paid to the secured party to redeem the collateral under R.S. 10:9- 623 is available; and

4 While the term " commercially reasonable manner" is not defined, LA UCC - 9 gives some guidance as to dispositions that satisfy the commercially reasonable requirement. Neighbors Federal Credit Union v, Anderson, 2015- 1020 ( La. App. I" Cir. 613/ 16), 196 So.3d 727, 730. Good faith" is defined in La. R.S. 10: 1- 201( 20) as " honesty in fact and the observance of reasonable commercial standards offair dealing." Additionally, La. R.S. 10:9-627 provides that a 

### disposition is made in a commercially reasonable manner if any of the following applies: the disposition is made in the usual manner on any recognized market; the disposition is made at the price current in any recognized market at the time ofthe disposition; or the disposition is made 

### otherwise in conformity with reasonable commercial practices among dealers in the type of 

### property that was the subject ofthe disposition. La. R.S. 10:9-627(b). The case law suggests that the obligation ofthe secured party to act in a commercially reasonable manner generally means 

### thatthe secured party must use his best effortsto seethatthe highest possible price is received for the collateral. See Ford Motor Credit Co. v. Melancon, 95- 1221 ( La.App. 3rd Cir. 6119196), 677 So.2d 145, 150 ( chin William D. Hawkland, Hawkland'.s Handbook on Chapter 9 Louisiana Commercial Law ( 1990), at Chapter 5, pp. 16- 17). However, the fact that a secured party might have obtained a greater amount of proceeds by proceeding with a collection, enforcement, disposition, or acceptance at a different time or in a different method is not, of itself,sufficient to 

### preclude the secured party from establishing that the enforcement action it chose was made in a commercially reasonable manner. La. R.S. 10:9-627(a).

12

### D) a telephone number or mailing address from which 

### additional information concerning the disposition and the obligation secured is available. See also UCC Comment (2) to La. R.S. 10: 9-613 and 10:9- 614. 

### After disposing ofcollateral, the proceeds ofthe disposition are applied first to the expenses of disposition, second to the obligation secured by the security 

### interest that is being enforced, and third, in the specified circumstances, to interests that are subordinate to that security interest. La. R.S. 10:9-615(a). After making the payments and applications required under La. R.S. 10: 9- 615( a), the obligor is liable 

### for any deficiency. La. R.S. 10:9-615(d)(2). Following a disposition in a consumer - goods transaction10 in which the debtor is liable for a deficiency, the secured party must send to the debtor a written explanation" 

### since the amount of the deficiency is unknown until after the disposition of the collateral." See La. R.S. 10: 9- 616(b)( 1). As defined in La. R.S. 10: 9- 616(a): 1) " 

### Explanation" means a writing that:



### A) states the amount ofthe surplus or deficiency; B) provides an explanation in accordance with 

### Subsection (c) ofhowthe secured party calculated the 

### surplus or deficiency; C) states, ifapplicable, that future debits, credits, charges, 

### including additional credit service charges or interest, rebates, and expenses may affect the amount of the 

### surplus or deficiency; and 

### D) provides a telephone number or mailing address from which additional information concerning the transaction is available.

to A motor vehicle is a " consumer good" as defined in LA UCC - 9. See La. R.S. 10: 9- 109( 1); La. R.S. 10: 9- 102( 1)( a); La. R.S. 10: 9- 102(4)( d); and La. R.S. 10: 9- 105( 1)( h). See also L. David Cromwell, " Consumer goods," Chapter 3. Louisiana UCC Terminology and Types ofCollateral, 111. Types ofUCC Collateral, Loti[S1ANA PRACTICE;SECURED TRANSACTIONS § 3: 34 ( 2022-2023 ed.). 11 See L. David Cromwell, " Disposition of collateral after default—Liability for deficiency and entitlement to surplus -- Explanation of calculation in consumer - goods transactions," Chapter 10. Default Remedies, IV. Non - Judicial Remedies under Louisiana UCC Chapter 9, LOUISIANA PRAC'T'ICE SECURED TRANSACTIONS § 10: 75 ( 2022-2023 ed.).
13Louisiana Revised Statutes 10: 9-616(c) 

### states that to comply with La. R.S.

10: 9- 616(a)( 1)( B), an " explanation" 

### must provide the following information in the following order:

1) the aggregate amount of obligations secured by the 

### security interest under which the disposition was made, and, ifthe amount reflects a rebate ofunearned interest or credit service charge, an indication ofthat fact, calculated as of a specified date: 

### A) ifthe secured party takes or receives possession ofthe collateral after default, not more than thirty-five days before the secured party takes or receives possession; or 

### B) ifthe secured partytakes or receives possession ofthe collateral before default or does nottake possession of 

### the collateral, not more than thirty-five days before the disposition; 2) the amount of proceeds ofthe disposition; 

### 3) theaggregate amount ofthe obligations afterdeducting the amount of proceeds; 

### 4) the amount, in the aggregate or by type, and types of expenses, 

### including expenses of retaking, 

### holding, preparing for disposition, processing, and disposing of the collateral, 

### and attorney' s fees secured by the 

### collateral which are known to the secured party and relate to the current disposition; 

### 5) the amount, in the aggregate or by type, and types of credits, including rebates of interest or credit service charges, to which the obligor is known to be entitled and which are not reflected in the amount in Paragraph 1); and 

### 6) the amount ofthe surplus or deficiency. 

### Our de novo review ofthe evidence submitted by Velocity in support of its 

### motion for summary judgment reveals no disputes as to the following facts: the signed and dated November 28, 2014 retail installment sale contract identifies Mr. 

### Pasqua as the buyer and North American Automotive Group as the creditor - seller. The contract includes the date ofthe loan, the amount financed, the credit terms of 

### the loan, and the security agreement.The evidence further identifies Mr.Pasqua as the debtor; North American Automotive Group as the original creditor, which then 

### assigned its rights to CPS; and Velocity as the current holder ofMr. Pasqua's debt. 

### The evidence shows that Velocity sent Mr. Pasqua a pre - repossession notice in

14compliance with La. R.S. 6: 966(A)(2) and a pre - disposition notice in compliance with La. R.S. 10: 9- 611( b), La. R.S. 10: 9-613( 1), and La. R.S. 10: 9- 614( 1). The evidence further shows that the vehicle was sold at sheriff' s sale for $8, 900. 00. The evidence reveals, however, genuine issues ofmaterial fact as to the stated 

### amount allegedly owed by Mr. Pasqua. The evidence further reveals genuine issues of material fact as to whether Velocity breached its duty to provide Mr. Pasqua a written explanation ofthe amount ofthe deficiency and the basis upon which the 

### deficiency was calculated. Velocity presented no evidence showing it provided Mr. Pasqua with a written " explanation" 

### of how Velocity calculated the alleged deficiency amount of $15, 960.82, as mandated by La. R.S. 10: 9- 616. While Ms. Shaalan' s affidavit indicates that "the total balance on the account" in the amount of 

### 15,960.82 is due, there is no explanation of that amount, nor any indication of 

### whether that is the deficiency owed by Mr. Pasqua following disposition of the vehicle. Based on ourde novo review, we conclude that Velocity failed to satisfy its 

### initial burden, meaning that the burden of proof never shifted to Mr. Pasqua.12 Therefore,we findthatthe parish court erred in granting summaryjudgment in favor ofVelocity. DECREE We reverse the parish court' s December 22, 2021 judgment, in favor of 

### Velocity Investments, LLC and against Adam Pasqua in the amount of $ 15, 960. 82, together with 5. 75% interest from the date of judgment,13 plus all costs of the 

### proceedings. All costs ofthis appeal are assessed to Velocity Investments, LLC.

REVERSED.



### 12 Mr. Pasqua sufficiently pled Velocity's non-compliance with the provisions ofLA UCC - 9 " in connection with" 

### Velocity' s motion for summary judgment. See La. R.S. 10: 9-626(a)( 1). 

### Therefore, Velocity had the burden ofproving compliance with LA UCC - 9 pursuant to La. R.S. 10: 9- 626. See FN 3, supra.
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