LA. CIVIL PROCEDURE II
PROF. CRAWFORD
SPRING 2011
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La. Civ. Pro. II Outline: Crawford-Spring 2011
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APPEALS
I.
Perfecting an Appeal
a. Judgments
i. Interlocutory
1. Determines only a preliminary matter
2. Appealable if causes irreparable injury
ii. Final
1. Determines the rights of the parties
2. To appeal, must have both:
a. Final Judgment (1841)
b. Signature of judge (1911)
i. Every final judgment must be signed by the judge.
ii. No appeal may be taken from a final judgment until
it has been signed.
c. Notice of Judgment (1913)
iii. Partial Final Judgments (1915 A&B)
1. Automatically appealable
a. If it dismisses:
i. 1 or more, but less than all of the parties
ii. Grants a motion for judgment on the pleadings
iii. Grants a MSJ, except 966(E) (issue or cause of
action)
b. Does NOT need to designated as appealable by the court
c. Time starts running from the parties’ dismissal, doesn’t
have to wait until the whole case is final
2. Requires judicial designation to be appealed:
a. If it dismisses a claim, issue or demand, but NOT at least a
party
b. Must be designated appealable after an express
determination that there is “no just reason for delay”
b. Appealable Judgments (2083)
i. Appeal may be taken from final judgment rendered in cases in which
appeals are given by law:
1. Whether rendered after hearing or by default,
2. From an interlocutory judgment which may cause irreparable
injury
3. From a judgment reformed in accordance with a remittitur or
additur under 1814.
4. From Declaratory judgments (1871)
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c.
d.
e.
f.
II.
ii. May NOT be taken from
1. Denial of a motion for summary judgment
Who May Appeal
i. Legal representative (2084)
1. May appeal any appealable judgment rendered against him or
affecting property that he is administering, or for benefit of a
person whose property he administers or who he represents.
ii. Third persons (2086)
1. Person who could have intervened in the trial court may appeal,
whether or not any other appeal has been taken.
Limitation on appeals
i. When appeal can’t be taken (2085)
1. Appeal can not be taken by a party who confessed judgment in the
proceedings in the trial court or who voluntarily and
unconditionally acquiesced in a judgment rendered against him.
2. Confession of or acquiescence in part of a divisible judgment or in
a favorable part of an indivisible judgment does not preclude an
appeal as to other parts of such judgment
Devolutive v. Suspensive Appeals
i. Devolutive
1. Does not preclude execution of judgment.
2. For a devolutive appeal only, if you have filed your motion within
the 60 day delay and the order is signed late, it is still valid.
(Applies only to devolutive)
ii. Suspensive
1. Suspends the effect or execution of an appealable judgment.
Scope of Review in LA
i. Law & facts per LA Const., Art. 5, Sect. 10(B)
ii. Trial record must establish that factual findings are NOT clearly wrong;
will reverse for “manifest error”
Delays for taking appeals
a. JNOV (1811) or Motion for New Trial (1974)
i. 7 days, exclusive of legal holidays, from the day after the mailing OR the
sheriff serves notice of judgment
b. Devolutive Appeal (2087)
i. Delay
1. May be taken within 60 days, inclusive of legal holidays, of:
a. Expiration of delay for applying for a new trial or JNOV, if
no application has been filed timely.
b. Date of the mailing of notice of the court’s refusal to grant
a timely application for a new trial or JNOV.
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2. IMP: For a devolutive appeal only, if you have filed your motion
timely, and the order is signed late, it is still valid. Traigel v. Gulf
Coast Aluminum
ii. Appellees Right to Appeal
1. When devolutive appeal is taken timely, appellee who seeks to
have the judgment appealed from modified, revised, or reversed as
to any party may take a devolutive appeal within the same delays
above OR within 10 days of the mailing by the clerk of notice of
the first devolutive appeal, whichever is later.
iii. Conversion to Suspensive Appeal
1. Devolutive appeal taken within the 30 days delay AND
accompanied by a suspensive appeal bond becomes a suspensive
appeal
c. Suspensive Appeal (2123)
i. Defined
1. An appeal that suspends the effect or the execution of an
appealable order or judgment
ii. Delay
1. May be taken, and security furnished only within 30 days of any of
the following:
a. Expiration of delay for applying for a new trial or JNOV, if
no application has been filed timely.
b. Date of the mailing of notice of the court’s refusal to grant
a timely application for a new trial or JNOV.
2. IMP: If you have filed your motion timely, but the order is signed
late, it is invalid.
iii. Money Judgments (2252)
1. A judgment creditor may proceed with the execution of a judgment
only after the delay for a suspensive appeal has lapsed.
d. Effect of Taking Appeal
i. Calculation of time
1. When periods inclusive of legal holidays end on a legal holiday,
you always get the next day
ii. When 1 or more parties file motion for new trial or JNOV
1. Delay periods commence for all parties at the time they commence
for the party whose motion is last to be acted on by the court.
iii. Prematurity
1. Order of appeal is premature if granted before the court disposes of
all timely filed motions for new trial or JNOV.
a. Order becomes effective upon denial of such motions.
2. Appeals taken before judgment is signed are subject susceptible to
exception of prematurity
iv. Effect of Removal
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1. Time within which to take an appeal is interrupted for all parties
upon filing of a notice of removal in a U.S. district court, and
commences anew on the date the proceeding is remanded.
III.
Appeals Process
a. Method of Appealing (2121)
i. Order of Appeal
1. Appeal is taken by obtaining an order therefor, within the delay
allowed, from court which rendered the judgment.
2. Order of appeal may be granted on oral motion in open court,
written motion, or in a petition.
a. Order must show the return day of the appeal in the
appellate court and provide the amount of security to be
furnished.
3. When order is granted, clerk must mail a notice of appeal to
counsel of record of all parties, the respective appellate court, and
other parties not represented by counsel.
a. Failure of clerk to do so does not affect validity of appeal.
ii. Effect on suspensive & devolutive
1. Devolutive appeal: signed after delay has expired remains valid
2. Suspensive appeal: Filed late, bond posted late, or signed
late=becomes a devolutive appeal
b. Security to be furnished for appeal (2124)
i. Not required for devolutive
ii. Must be paid within 30 day delay for suspensive
c. Return Day (day the record has to be lodged with the ct of appeals) (2125)
i. No testimony to be transcribed and lodged with record 30 days from the
date estimated costs are paid.
ii. Testimony to be transcribed45 days from the date costs are paid
iii. Extensions: Trial court can only grant 1 extension of the return day and it
can’t be for more than 30 days.
1. Copy of the extension must be filed with the appellate court.
2. Subsequent extensions may be granted by the appellate court for
cause or at request of court reporter.
d. Payment of costs (2126)
i. Immediately after order of appeal has been granted, clerk must estimate
the cost of the preparation of the record, including fees owed to the court
reporter.
ii. Within 20 days of the mailing of notice, appellant must pay the estimated
costs to the clerk.
iii. If appellant fails to pay the estimated costs or the difference between
estimated and actual costs within the specified time, trial judge, on his
own motion or motion by clerk or a party, shall:
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e.
f.
g.
h.
1. Enter a formal order of dismissal on the grounds of abandonment;
OR
2. Grant a 10 day period within which costs must be paid in full, in
default of which the appeal is dismissed as abandoned.
Preparation of record on appeal (2127)
i. Clerk has duty to prepare record on appeal.
ii. Must have it lodged with appellate court on or before return day or any
extension.
iii. Failure to prepare and lodge the record does not prejudice the appeal.
Assignment of errors unnecessary (2129)
i. Where appellant designates only portions of record as record on appeal, he
must serve with his designation a concise statement of the points on which
he intends to rely, and appeal will be limited to those points.
Absence of transcription (2131)
i. If testimony of witnesses has not been transcribed, the appellant must
request the other parties to join with him in a written and signed narrative
of facts.
ii. In cases of disagreement as to narrative or refusal to join it, at any time
prior to lodging of record in appellate court, judge shall make a written
narrative of the facts.
1. This will be conclusive.
Answer (2133)
i. Appellee doesn’t have to answer the appeal unless:
1. He wants to have the judgment modified, revised, or reversed in
part OR
2. Unless he demands damages against the appellant.
ii. Delay
1. Must be filed not later than 15 days after the return day OR the
lodging of the record, whichever is later.
iii. Incidental Demands
1. Appellee may by answer in appeal demand modification, revision,
or reversal of the judgment insofar as it did not allow or consider
relief prayed for by an incidental action filed in the trial court.
2. If appellee files such an answer, all other parties to the incidental
demand may file similar answers within 15 days of appellee’s
action.
a. Ex.—P appeals, D1 answers & if he had a cross claim
against P or 3rd party demand against D2, D1 can appeal the
judgment in the incidental demands in the answer
iv. Practical Effect
1. Answer is the equivalent of an appeal on his part from any portion
of the judgment rendered against him in favor of the appellant and
of which he complains in answer.
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2. IMP: The appellant who appeals only damages, by filing that first,
he cut out the right of the other party to appeal the whole case.
This case says this is wrong—answer of appellee can come in
appealing the entire case. Alengi v. Hartford Accident & Indemnity
Co.
a. Important thing under 2133 is that you can’t get anything
more than you ask for in your “Answer to Appeal.”
IV.
Procedure in Appellate Court
a. Motion to Dismiss for Irregularities (2161)
i. Appeal can’t be dismissed because trial record is missing, incomplete, or
in error.
1. Court may remand the case either for retrial or for correction of the
record.
ii. Appeal can’t be dismissed because of any other irregularity, error, or
defect unless it is imputable to the appellant.
1. Motion to dismiss for this must be filed within 3 days, exclusive of
holidays, of either:
a. Return day, OR
b. Date on which record on appeal is lodged in appellate
court, whichever is later.
b. Dismissal for Other Reasons (2162)
i. Can be dismissed at any time:
1. By consent of all parties
2. For lack of jurisdiction of appellate court
3. Because there is no right to appeal, OR
4. If appeal has been abandoned under rules of appellate court
ii. Dismissal for lack of jurisdiction:
1. Court may transfer the appeal to the proper court, upon such terms
and conditions as it may prescribe.
iii. IMP: An appeal granted before the signing of a final judgment is subject
to dismissal until the final judgment is signed. Overmier v. Traylor
1. Can move to dismiss until final judgment comes out, but once final
judgment comes out it legitimates your prior appeal.
c. Peremptory Exceptions (2163)
i. Can be considered by appellate court if pleaded prior to submission of
case for a decision and proof of grounds for exception appears in the
record.
ii. If Exception of Rx: Π may demand that case be remanded to trial court for
trial of the exception.
d. Scope of Action to be Taken by Courts (2164)
i. May render any judgment which is just, legal, and proper.
ii. May award damages for frivolous appeal.
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iii. May tax costs of the lower or appellate court against any party to the suit
e. Appeals deemed Abandoned (2165)
i. Appeal is abandoned when parties fail to take any step in its prosecution
or disposition for period provided in rules of appellate court.
f. Scope of Review
i. Law & facts per LA Const., Art. 5, Sect. 10(B)
ii. Trial record must establish that the factual findings are not clearly wrong
iii. Will reverse for “manifest error”
V.
Finality of Appellate Judgment
a. Rehearing (2166)
i. Delay for filing
1. Within 14 days of mailing of notice of judgment and opinion of
court of appeal a party may apply for rehearing.
2. Party may apply to LASC within 30 days of mailing of notice and
opinion of court of appeal.
a. These days run concurrently unless a party applies for
rehearing
ii. Effect of failure to apply
1. Judgment of court of appeal becomes final and definitive
(executory) if neither an application for rehearing nor application
for writ to LASC is filed.
iii. Timely application and delay
1. If any party applies timely, the time within which any other party
may apply to the LASC for a writ is extended until 30 days after
the mailing of notice of denial of rehearing.
iv. Timely application and denial by appellate court
1. Judgment becomes final and definitive unless a writ is filed within
30 days of the mailing of notice of denial.
v. Timely application for writ
1. Any other party may also apply for cert. within 30 days of mailing
of notice of judgment and opinion of court of appeal OR within 10
days of mailing by the clerk of the notice of first application for
cert., whichever is later.
vi. Denial of writ
1. Judgment of court of appeal becomes final and definitive when
LASC denies application for cert.
b. Rehearing & the LASC (2167)
i. Party may apply to LASC for rehearing within 14 days after mailing of
notice of judgment.
ii. Judgment of LASC becomes final and definitive when the delay for
application for rehearing has expired and no timely application therefor
has been made.
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iii. When application is timely, judgment of LASC becomes final and
definitive when the application is denied.
VI.
Appeal Time Table
7 days, from
30 days, from
30 more days, 14 days, from mailing 14 days, from
final judgment denial of JNOV from denial of
notice of Court of
mailing notice
JNOV
Appeal judgment
of LASC
judgment
For new trial
Suspensive
Devolutive
Applying for rehearing Applying for
or JNOV
from court of appeal rehearing from
1974, 1811 Suspends effect of
Does not
OR
SC
judgment
suspend effect of 30 days apply for writ to
2167
2123
judgment
Supreme Court
2087
If both: 14 + 30 = 44
days
2166
2252 is the goal line: can execute judgment only after delay for suspensive appeal has elapsed or
after there is a complete and final judgment after all possible appeals
VII.
LASC & USSC Review
a. Certification of questions to LA Supreme Court
i. On points of law only
ii. Can come from court of appeals or 5th Circuit (res nova issues)
iii. LASC has discretion to accept or deny
b. Writ of Cert to LASC
i. Delay for filing writs:
1. 30 days, including legal holidays, after:
a. Mailing of notice of appellate judgment if no timely filing
for rehearing, OR
b. Mailing of notice of denial of rehearing
ii. Proof of mailing:
1. If the USPS postmark or in hand, NO extensions
2. Private courier date stamp not accepted, must be received in hand
by the end of the 30th day
iii. Two Types of Writs
1. Writ of cert (similar to appellate review)
a. Puts whole case before LASC for review, but you have to
apply for & LASC has to grant writs in order for them to
hear your case
b. Reasons to seek cert include:
i. Conflicting appellate decisions
ii. Significant unresolved issues of law
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iii. Overruling or modification of controlling
precedents
iv. Erroneous interpretation or application of
constitution or laws
v. Gross departure from proper judicial proceedings
c. If appellee wants a modification: MUST make his own
application for writs
2. Supervisory Writs
a. Explication
i. Appellate court supervising trial court, not on the
merits, done on an expedited schedule.
ii. Can be taken on interlocutory issues for “efficiency
of judicial administration.”
iii. When reversal of trial court judgment, which is not
a final appealable judgment, will terminate the
litigation when there is no dispute of fact to be
resolved, judicial efficiency & fundamental fairness
to the litigants dictates that the application for
supervisory writs should be granted to avoid waste
of time & expense of future useless trial on merits.
1. No longer have to show irreparable harm for
supervisory writ
b. Application
i. Can be used for a denial of MSJ
ii. If appeals court denies supervisory writs, can appeal
directly to LASC
iii. Supervisory writs are not a substitute for appeals. If
you miss appeals deadline, you can’t then take an
appeal.
3. When to use each
a. Cert – review the case after its over
b. Supervisory – to overrule trial court judge
iv. Answer
1. Required if appellee wants some modification
2. Appellee has an extra 10 days after mailing of notice of application
for writs if appellant files toward the end of the 30 days
a. Has later of end of 30 days or end of extra 10 days
c. Writ of Certiori to the USSC
i. Federal questions ONLY (28 USC § 1257)
1. USSC will only review decisions from highest state court on
federal question issues
2. 30 days from entry of final judgment being appealed
3. Discretionary
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ii. LASC or USSC can impose a stay on the execution of the judgment
pending further review
d. Delay for Proceeding with Execution of Judgment (2252)
i. May proceed with execution ONLY after the delay for a suspensive appeal
has elapsed
ii. Appellant must ask for stay order to prevent execution of judgment after
suspensive appeal delay has run
NULLITY OF JUDGMENTS
I.
II.
III.
2 Grounds for Nullity of Final Judgments – (1) vice of form & (2) vice of
substance
Annulment for Vices of Form (2002)
a. Final judgment shall be annulled when rendered:
i. Against incompetent person not represented as required by law
ii. Against Δ who has not been served with process and has not waived
objection to jurisdiction, or against whom a valid default judgment has not
been taken
iii. By a court which does not have subject matter jurisdiction.
b. Time for action
i. Except for CCP 2003, action for nullity may be brought at any time
(imprescriptable).
ii. Can be raised collaterally (in another trial court) or in another proceeding
1. These vices result in absolute nullities, so they can be collaterally
attacked
c. Judgment can’t be annulled if (2003):
i. Δ voluntarily acquiesced in the judgment, OR
ii. Was present in the parish at the time of its execution and did not attempt to
enjoin enforcement
d. Explication
i. Π miscounted days and took default judgement too early. This is an
absolute nullity and can be raised any time later.
ii. Lack of SMJ may arise in City & Parish courts with limited jurisdictional
amounts
Annulment for Vices of Substance (2004)
a. Applies to:
i. Final judgments obtained by fraud or ill practices, or enforcement of
judgment would be unconscionable
ii. Must file suit to have it nullified
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b.
c.
d.
e.
IV.
iii. Results in relative nullity
Examples
i. 2 step analysis:
1. When the circumstances under which the judgment was rendered
show the deprivation of legal rights of the litigant who seeks relief,
and
2. When the enforcement of the judgment would be unconscionable
and inequitable
ii. False affidavit or testimony
iii. If interest of justice requires a new trial
1. Misunderstanding leading to a preliminary default judgment which
was later nullified
2. Default judgment was nullified due to lack of sufficient evidence
from Π
Rx
i. Must be brought within 1 year of the discovery by Π in the nullity action
on the fraud or ill practices (1 year from knowledge of ill practice or
fraud).
Attorneys Fees
i. Court may award reasonable attorneys fees incurred by the prevailing
party in an action brought on these grounds.
Where Annulment for Vices of Substance Proceeding Must be Brought
i. In the same court where the judgment was rendered
ii. Cannot be collaterally attacked
Procedure
a. When a Judgment Can be Annulled (2005)
i. Judgment may be annulled prior to or pending an appeal, or after delays
for appealing have elapsed
ii. A judgment affirmed, reversed, amended, or otherwise rendered by an
appellate court may be annulled only when the ground for nullity did not
appear in the record of appeal or was not considered by the appellate
court.
b. Effect on Appeal
i. Action of nullity does not affect the right to appeal
c. Court where it must be brought (2006)
i. Must be brought in the trial court, even though the judgment sought to be
annulled may have been affirmed on appeal, or even rendered by the
appellate court.
REVIVAL OF JUDGMENTS
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I.
a.
b.
c.
d.
e.
II.
Rx of Judgments & Judicial Mortgages (3501)
Background
i. After a money judgment, the recordation of it creates a judicial mortgage
over any property the Δ-debtor has in the parish or parishes in which it is
recorded
1. Attaches to all property currently owned and future property when
acquired
ii. Judgment Rxs in 10 yearsMust be revived
iii. Inscription in mortgage records Rxs in 10 yearsMust be reinscripted
Defined
i. Money judgment may be revived at any time before it Rxs per 2031
Money Judgments
i. LA court
1. Rx 10 years from rendering 10 years from date judgment signed
or, if appealed, date judgment becomes final
2. If appealed, 10 years from when judgment becomes final
ii. Out of state court
1. Rx 10 years from rendition, but not enforceable in LA if Rxed,
barred by SOL, or otherwise unenforceable under laws of
jurisdiction where it was rendered
Judicial Mortgage
i. 10 years from judgment; if reinscribed before lapse, effects of
reinscription cease 10 years from date of reinscription
Effect of Revival
i. Subject to same Rx periods above.
ii. Any interested party may have a money judgment rendered by LA court
revived as often as he may desire.
Reinscription & Revival
a. Application
i. Prior to the running of 10 years on the inscription you must file a
certificate of reinscription to keep the judicial mortgage alive, provided
that the judgment itself is still alive.
b. Effect of Reinscription
i. Notice of reinscription that is timely filed continues that effect for 10 years
from the date the notice of reinscription is filed [not date mortgage would
lapse (10 years from date of judgment)].
c. Can be revived/reinscribed 5 times (50 years)
i. Revival of judgment by ex parte motion, by a party having an interest, in
the court which rendered it
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d.
e.
f.
g.
h.
1. Needs only supporting affidavit of holder & owner of judgment
stating that original judgment has not been satisfied
ii. Reinscription of mortgage requires filing a certificate of reinscription,
provided that the judgment itself is still alive
To revive both a judgment & judicial mortgage, you must file BOTH:
i. Ex parte motion for revival of judgment per 2031 before expiration of 10
years AND
ii. Notice of re-inscription of judicial mortgage to clerk of court in parish of
recordation
Judicial mortgage is accessory to the debt of the judgment
i. Allowing mortgage to Rx is NOT fatal, just puts you back down at the end
of the line of creditors
1. Reinscription after judgment Rxs ranks from anew from new
reinscription
ii. Allowing judgment to Rx is fatal. You no longer have a debt to support
the accessory mortgage so even if you timely reinscribed the mortgage, if
you let the judgment Rx you are SOL and can’t ever collect
Effect of request after cessation of effect of recordation (3335)
i. It ranks from the day notice is filed. If I file my reinscription AFTER the
mortgage has Rx, I still have a mortgage and its still inscribed BUT no
longer has its priming rank until the time when it was first filed
Debtor in bankruptcy
i. If your debtor is in bankruptcy and you revive and reinscribe it is only in
rem against the property. The debtor personally is free of your debt,
effective against the property only. Socony Mobil Oil v. Burdette (p. 66)
Hypos
i. Not timely filed: Anyone can come in and erase the inscription because
there is no judgment to support it
ii. Timely filed: As long as the procedure to revive is pending having been
timely filed the mortgage is preserved
iii. Thus start your revival before it runs, reinscribe mortgage before it runs
SUMMARY PROCEEDINGS
I.
Introduction
a. Definition (2591)
i. Those conducted with rapidity, within delays allowed by the court, and
without citation and observance of all the formalities required in ordinary
proceedings.
b. May be used ONLY for trial or disposition of the following matters: (2592)
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i. Incidental question arising in the course of the judicial proceedings,
including award of and determination of reasonableness of attys fees.
ii. Motion for a new trial
iii. Issue which may be raised properly by an exception, contradictory motion,
OR rule to show cause
1. Requires other party to come in and respond
2. “Mini-trial” upon short notice
3. Can call witnesses
iv. Action against the surety on a judicial bond after judgment has been
obtained against the principal or against both principal and surety when
summary proceeding against the principal is permitted
v. Succession issues: Homologation of a judicial partition, tableau of
distribution, account filed by legal rep., report submitted by auditor,
accountant or other court expert OR opposition to any of these.
vi. Opposition to appointment of legal representative or to a petition for
authority filed by a legal representative
vii. Habeas corpus, mandamus, or quo warranto proceeding
viii.Determination of rank of mortgages, liens and privileges on property sold
judicially and order of distribution of the proceeds thereof
ix. Dissolution of writ of seizure
1. Ex.—If FIFA was improperly issued or wrong property was seized
x. Intervention by a 3rd party possessor of property in the sale of seized
property subject to judicial mortgage
xi. Preliminary injunction
xii. Divorce: Original granting of, or subsequent change in or termination of
divorce, support, and custody matters
xiii.Action to annul probated testament
xiv.Action to enforce the right to a written accounting
xv. Motion for summary judgment
xvi.All other matters allowed by law
II.
Pleadings (2593)
a. Commencement
i. Proceeding may be commenced by filing a contradictory motion or by a
rule to show cause as a motion and order, with supporting memorandum of
authority
b. Exceptions
i. MUST be filed prior to the time assigned for the hearing and shall be
disposed of on the trial of the motion
1. 926—dilatory exception of improper use of summary proceeding
2. No responsive pleadings to an exception are permitted
c. Answer to the Rule
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i. NOT required, unless you were served with a citation (come in and answer
petition or you will be subject to default)
1. Exception: Habeas corpus, mandamus, and quo warranto require
answers
2. Jurisprudence has said that if you are served with a citation that
says come in and answer, you have to file an answer in advance of
the hearing
III.
Service of Process (2594)
a. Citation NOT required
i. On motion of Π, and on showing to the court that facts, new trial should
be granted to movant
ii. Order, let the Δ show cause on Oct. 30, 2007 why the above and foregoing
motion for new trial should not be granted
1. Order and date sets motion for hearing
iii. Signed by the judge
b. Copy of pleading and order of the court setting date and time of trial shall be
served upon Δ
i. Served by registered or certified mail (1313) or by sheriff (1314) because
this is an order that sets a court date
IV.
a.
b.
c.
d.
Trial (2595)
Upon reasonable notice, trial may be held either in:
i. Open court or chambers
ii. In term or on vacation
Shall be tried in preference over ordinary proceedings
No jury
Court shall render decision ASAP, without taking it under advisement whenever
practicable
THE EFFECT OF JUDGMENTS
RES JUDICATA, LIS PENDENS, & LAW OF THE CASE
I.
Res Judicata (literally means “the thing adjudged”)
a. Rule (13:4231)
i. Valid and final judgment is conclusive between the same parties,
EXCEPT on appeal or other direct review, when:
1. If the judgment is in favor of the Π: All causes of action existing
at time of final judgment arising out of transaction or occurrence
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that is the subject matter of litigation are extinguished and merged
into the judgment.
a. Ex.—in an exposure case, if didn’t have cancer during 1st
suit, will not be res judicata if he acquires cancer before
filing the 2nd suit
2. If the judgment is in favor of the Δ: All then existing causes of
action at time of final judgment arising out of t/o that is the subject
matter of the litigation are extinguished and judgment bars
subsequent action on those causes of action
a. Ex.—Livingston train wreck. Policeman brought action for
fear of cancer and collected $2 mil. Can he come back 5
years later after being diagnosed with cancer? Medical
testimony would be needed, because “then existing”
becomes the question.
b. Under CCP 927, res judicata can be raised as a peremptory
exception at any time.
3. Judgment in favor of either: Judgment is conclusive in any
subsequent action between them with respect to any issue actually
litigated and determined if determination was essential to that
judgment = Issue Preclusion or Collateral Estoppel
a. Ex.—What if Π in first suit loses because railroad was not
negligent? Issue of negligence was fully litigated earlier,
thus Δ can plead preclusion by judgment or collateral
estoppel.
b. Does NOT have to be exact same parties, can be parties
appearing in same quality or capacity (i.e. survivors
bringing survival action after deceased litigated claim
himself before his death)
c. Issue preclusion and collateral estoppel are peremptory
exceptions
ii. Applies to compromises, judgments, & arbitration awards, but NOT to
criminal convictions
iii. Bars all causes of action, not theory of action, that were pleaded or might
have been pleaded re: the transaction or occurrence
iv. Subject to peremptory exception of res judicata
b. Exceptions (14:4232)
i. Judgment does not bar action when:
1. Exceptional circumstances justify relief from the res judicata effect
of judgment
2. Judgment dismissed the first action without prejudice
3. Judgment reserved the right of the Π to bring another action.
4. When otherwise provided by law
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a. Designed to avoid the res judicata effect to alterable
judgments such as custody & support
c. Claim Preclusion (CCP 425)
i. Requires a party to assert all causes of action arising out of the transaction
or occurrence that is the subject matter of the litigation.
1. This is simply a statement of pleadings; if you don’t assert it in the
pleadings, you waive it.
ii. The essence of res judicata is that it is between the same parties—this is
broader than res judicata between parties. Corollary: against not the same
parties, res judicata doesn’t apply.
d. Examples related to “derivative parties”
i. P files for injuries and loses, then dies. Survivors come in and sue for
survival action and wrongful death. D files exception of res judicata, new
Ps oppose bc they are not the same party
1. Result: Res judicata bc of issue preclusion, issue of D’s
negligence has already been litigated
ii. P sues truck driver and loses, then sues driver’s employer. Employer files
exception of res judicata
1. Result: Initial case extinguished the cause of action, nothing left
for which the employer can be vicariously liable
II.
a.
b.
c.
d.
Res Judicata & Lis Pendens
Defined
i. If there are two or more suits that are carbon copies of each other, you can
object to that and have all of them dismissed except for the first suit.
ii. Test: If either suit being discussed went to judgment, would one be res
judicata as to the other? If so, subject to plea of lis pendens.
Failure to timely urge
i. Then the successful party in the 1st suit which proceeds to judgment
thereafter may have the other suits dismissed under res judicata, even if 1st
judgment is pending on appeal
1. IMP: declinatory exception of lis pendens can be waived (although
there should be no time limit for this situation)
Suits Brought in Other Courts (including federal)
i. CCP 532 says the same rule applies; when a suit is brought in a LA court
while another is pending in a court of another state or a federal court on
the same transaction or occurrence, between the same parties in the same
capacities, court may stay all proceedings on the 2nd suit until 1st has been
discontinued or final judgment rendered upon motion of the Δ or sua
sponte.
Drafting the Petition (891)
i. Should be drafted to accommodate and promote res judicata, the way you
are supposed to proceed.
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ii. Have declinatory exception available under 925.
e. Compulsory Reconventional Demand (1061)
i. Except for divorce matters, if you don’t bring your compulsory
reconventional demand, you lose it.
ii. If you file one, it must be filed in the same court as the original demand.
iii. Subject to Rx.
f. Res Judicata & Appeals
i. Explication
1. A party successful in the trial court on a theory of relief or defense
which provides full relief is not likely to answer the loser’s appeal
ii. Rule
1. If appellate court reverses determination upon which the trial court
decided the case & remands, the initial victor may be faced with a
res judicata defense to his other claims or defenses
2. Trap may be avoided if a party urges on appeal all of the claims or
defenses, although the party obtained full relief below through one
claim or defense
III.
Law of the Case
a. Explication
i. Similar to stare decisis and res judicata¸ in that court should not revisit an
issue which it decided earlier in the course of the same proceeding
1. Appellant courts will not ordinarily reconsider its own rulings of
law on a subsequent appeal in the same case
ii. Is discretionary and will not be applied where manifest injustice would
result
iii. Should NOT bar reconsideration where in the interim the law has changed
and the change is retroactive
b.Policy Considerations
i. The avoidance of indefinite relitigation of the same issue
ii. The desirability of consistency of the result in the same litigation
iii. The efficiency, and the essential fairness to both sides, of affording a
single opportunity for the argument and decision of the matter at issue
c. Doctrine applying to the binding force of:
i. Trial court rulings during later stages of the trial
1. Ex.—Pre-trial ruling on admissibility of evidence is “law of the
case” for the rest of the trial
ii. Appellate rulings at the trial on remand
iii. Rule that appellate court will ordinarily not reconsider its own rulings of
law on a subsequent appeal in the same case
d. Not clear if it applies to writ denials
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i. However, should apply where the denial of writs was not based upon
prematurity but upon a determination that the trial court’s decision was
correct
ii. Often, however, the denial of writs does not provide a clue to the appellate
court’s rationale
iii. IMP: Often comes up where a party seeks supervisory writs and then later
files an appeal in the case
DUE PROCESS UNDER THE U.S. CONSTITUTION
I. Sheriff’s Sales & Due Process
a. Mullane
i. State actor must provide notice “reasonably calculated,” under all
circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections
b. Mennonite
i. Extended notice requirement to private actors as well.
ii. Any 3rd party with a property interest: new owner, lien holder
iii. Rules
1. Notice by publication is insufficient
2. Actual notice is required IF the identity of the interested party is
reasonably identifiable
3. An owner of property, subject to deprivation by state action, is
entitled to means, as certain as mail, to ensure actual notice IF:
a. Name and address are reasonably ascertainable through the
exercise of reasonably diligent efforts (i.e., mortgage
records)
4. Extends notification requirements to lower ranking creditors also,
not just 1st in line.
c. Bonner v. BW Utilities
i. 1st federal case to say LA’s mortgage provision which did not require
notice to 3rd party owner was violative of 3rd party’s Due Process rights in
the property (not valid)
d. LA’s Response to Due Process Requirements
i. 13:3886—Any person desiring to be notified of the seizure of specific
immovable property shall file a request for notice of seizure in the
mortgage records of the parish of situs
e. Small Engine
i. Applied Mennonite rule and held LA’s request for notice provision
insufficient to meet Due Process concerns
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f. Due Process notice requirements still demand Mennonite notice, even if a 3rd
party does not request notice per 13:3886. (Davis Oil)
i. Creditor is constitutionally obligated to provide notice reasonably
calculated to apprise interested parties of the pendency of the action
1. Duty is to known or reasonably ascertainable parties
ii. 13:3886 is not unconstitutional but failure of a 3rd party to request notice
does NOT relieve the creditor of Mennonite due process notice
requirements
g. Magee v. Sheriff of EBR
i. Without Mennonite notice, judicial sale of wife’s half of community
property shared of house was null
h. Standing to assert Due Process, Mennonite rights
i. ONLY offended person with interest in the property
EFFECT OF PREMATURE EXECUTION
I.
Delay before execution (2252)
a. Rule
i. Judgment creditor may proceed with the execution of a judgment only
after the delay for a suspensive appeal has elapsed
1. New trial
2. Suspensive appeal
3. Appeal heard
4. Time for rehearing of appeal
5. Application for writ of cert
6. LASC hearing
7. Time for rehearing at LASC
ii. However: recordation of a judgment in the mortgage records prior to the
lapsing of the delay for a suspensive appeal does not begin proceedings for
the execution of the judgment
1. Filing for writ of FIFA is step in execution; must let suspensive
appeal delays run first
a. Attorneys’ Fees can be granted for premature execution of
FIFA
2. If suspensive appeal goes all the way up to LASC, then must wait
14 day delay for rehearing before executing FIFA
b. Application
i. If not appealed: Judgment doesn’t become executory until the delays for a
suspensive appeal have run, regardless of recordation.
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ii. If appealed: goes through an appellate court who renders an opinion, you
still have 2252 delays in which you have time to ask for a rehearing or
time to ask for cert. You are not at 2252 until 2166 and 2167 have run
II.
Premature Execution
a. Effect of Execution before 2252 delays have run
i. Susceptible of:
1. Injunction
2. Damages; special and general
3. Attorneys fees
ii. This applies even if no appeal was perfected if seizure occurs before
delays run
b. Devolutive, rather than suspensive appeal
i. Still CAN’T execute until the delay for suspensive appeal runs, bc
appellant could always file a devolutive appeal during the 1st 30 days and
then also file a suspensive appeal bond timely
ii. Ex.—Applying for FIFA just after appellant filed devolutive but before his
time lapses for filing suspensive bond delay is premature. When he files
the suspensive appeal bond, he turns the devolutive into a suspensive
appeal
c. Delay for suspensive appeal lapses, seizure & sale properly executed, BUT
Debtor wins on devolutive appeal
i. Debtor does NOT get property back
1. 3rd party who bought it at judicial sale is protected by public
records doctrine
ii. Debtor DOES get money back from the sale that the judgment C received
(including the 1/3 C paid to attorney)
1. DOES NOT get back costs of sale
d. Default Judgments
i. Notice must be served upon Debtor (personal or domiciliary) BEFORE
they become final & executory
III.
Remedies for Debtor/3rd person upon Premature Execution; Injunction
a. Rule
i. Judgment D OR a 3rd person claiming ownership of seized property can
gain injunctive relief to prohibit seizure (FIFA) & sale IF:
1. Judgment is not yet final
2. Suspensive delays still running
3. Obligation of judgment has been extinguished (has been paid)
a. If judgment is partially extinguished (paid), then can get
injunction to extent of partial fulfillment
4. Judgment is absolutely null
ii. Damages & attorneys fees may be awarded for wrongful seizure
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b. Knowing/Intentional Premature Execution
i. Attorney may be liable in tort
EXECUTING JUDGMENTS
I. Enforcement of Different Types of Judgments
a. Self-Executing judgments
i. Those which declare rights & status
ii. Include a judgment in a petitory action or divorce
b. Judgment which compels a party to do or refrain from doing an act
i. May be enforced through contempt power
ii. May also be enforced through writ of possession or writ of distringas
c. Enforcement of judgments ordering the payment of money
i. Two options
1. Can be enforced through recordation (with the resulting judicial
mortgage on all of the IM property of the judgment D) OR
2. Through FIFA
II. Enforcement of foreign judgments
a. Out of State Judgments; Full Faith & Credit
i. Application
1. U.S. Constitution says that FF&C should be decreed to courts of
sister states provided that the state had jurisdiction to render the
judgment.
ii. Rules for attacking foreign judgments
1. May ONLY be attacked on grounds of lack of in personam
jurisdiction
a. Domicile: presence + intent
b. Δ participates by making an appearance, admitting to
jurisdiction
i. Participation (i.e. appearance via a signature) in
proceedings satisfies due process. Succession of
Bickham [Wife was trying to attack Arkansas
divorce decree; illustration of how a foreign court
can get jurisdiction based on a paper trail].
ii. Can “appear” & testify in court, but as long as no
pleadings are filed, do not appear for jurisdictional
purposes
2. Judgment must be attacked extrinsically (i.e. can’t argue that the
person is lying about minimum contacts). Tjaden v. Tjaden
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a. Need evidence disproving domicile
iii. Exceptions to Full Faith & Credit:
1. NOT required when the rendering state lacked jurisdiction over the
judgment D OR
2. If judgment was obtained by fraud
a. Note: Type of fraud which prevents application of FF&C is
fraud in obtaining the judgment (extrinsic), and not fraud in
the underlying cause of action (intrinsic)
iv. Federal judgment as a bar
1. Federal rule: Judgment bars all claims that arise out of a “common
nucleus of operative facts”
2. Rule for LA courts: Must give the federal court judgment same res
judicata effect, unless the federal court rendering the judgment was
exercising diversity jurisdiction. Semtek v. Lockheed Martin
v. Federal & state claims joined in federal court
1. Rule: Ensuing judgment will bar the state claims if the federal
court has SMJ
2. Federal claim dismissed prior to final judgment: Federal court
has discretion to exercise or decline jurisdiction over the state
claim under the doctrine of supplemental jurisdiction
vi. Federal Court Chooses not to Exercise Jurisdiction
1. Federal judgment should not bar subsequent pursuit in state court
of state law claims if the federal court declines to exercise
jurisdiction over those claims
b. 2 Choices of Enforcement Procedures for foreign judgments
i. 1—Executory Proceeding (13:4241-4247)
1. File ex parte motion praying that judgment be made executory in
LA
2. Filing
a. In D’s parish of domicile by ex parte petition with
attachments including:
i. Authenticated copy of foreign judgment
1. Foreign clerk certifies that judge is the judge
in the court that rendered judgment
2. Also certifies that the clerk is the clerk of
court in county where judgment rendered
ii. Affidavit of last known address of Judgment D &
Judgment C
1. Statute contradicts Pan Am case, where
court said notification by mail only
sufficient where shown that the notice was
actually received
3. Notice
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a. Clerk sends by certified mail to D, giving him 30 days to
contest and get a stay upon proof that:
i. Judgment is on appeal OR
ii. Stay of Execution has been granted OR
1. If stay is granted, D will have to post bond
iii. Court lacked personal jurisdiction
1. Judgment D contest by filing contradictory
motion
4. If D does NOT come forward within 30 days, C can proceed
with execution
ii. 2—Ordinary Proceeding
1. Bring ordinary action against judgment D to have judgment
recognized in LA
2. Filing: In parish of D’s domicile
a. Attach authenticated copy of foreign judgment to petition
3. Difference with executory
a. Much lengthier, subject to delays for answer and exceptions
& is appealable
III.Enforcement of Out of Parish Judgments
a. General rule
i. ONLY requires recordation (unless suspensive appeal delays still running)
b. Exceptions (when it must be made executory)
i. Judgment debtor rule: Filed in debtor’s domiciliary parish because they
have to issue subpoena to D to make him come to court for examination
ii. Garnishment: File in parish of garnishee (employer)
c. Procedure for Making Judgment Executory
i. C files ex parte motion
ii. Attach certified copy of judgment
iii. Pray that judgment be made executory
iv. Court shall immediately render and sign it, making it executory in that
parish
d. Injunction
i. D can get injunction against execution IF judgment is extinguished, Rxed,
or otherwise legally unenforceable
ii. D has to furnish security to get TRO or prelim injunction
IV. Examination of Judgment Debtor
a. Explication
i. Judgment C seeking information about the assets of the D may bring an ex
parte written motion to examine the D or a 3rd person (2451)
b. “Examination” (2451)
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c.
d.
e.
f.
i. Judgment C can “examine” the judgment D or a 3rd person, either in open
court or by deposition, to determine what assets the D has (2453)
ii. Includes examination of books, papers, documents
1. MUST comply with discovery rules
2. Can’t penetrate privileged relationships
Court where motion filed & examination conducted (2452)
i. General rule: Must obtain a written motion for a “judgment debtor rule”
from court which rendered the judgment
ii. Out of parish debtor: MUST be filed in court of competent jurisdiction in
D’s domicile
iii. Nonresident: Petition must be filed and examination conducted in court of
competent jurisdiction in any parish where D may be found or in court
where judgment was rendered
1. “Found” in any parish where proper service may be effected
Notice & Order (2453)
i. Standard SOP rules
ii. Court shall order D to appear in court and to produce books, papers,
documents, etc. not less than 5 days after SOP
Oath (2454)
i. Must make sure that examination is held under oath and “on the
record” (get a court reporter)
ii. Testimony of D can’t be used in any criminal proceeding against him
Contempt (2456)
i. Upon refusal to appear for examination, produce documents, or answer
pertinent questions, may be held in contempt
V. General Outline for Executing Judgments
a. May only be executed by a trial court (2251)
b. Judgment has to be executory (delays have run) (2252)
i. Note: Recordation in the mortgage records prior to the lapsing of the delay
for suspensive appeal DOES NOT begin proceedings for the execution
c. Letter to clerk in parish of rendition for a Writ of FIFA (2253)
i. At the request of the judgment C, clerk SHALL issue a writ directing the
sheriff of the parish where the judgment is to be executed, to enforce it in
the manner set forth in the writ
1. Concurrent writs may be directed to sheriffs of several parishes
2. Must describe the property to be seized with specificity
d. Sheriff SHALL proceed promptly to execute the writ (2254)
i. Notice of seizure (2293)
ii. Advertisement (2331)
iii. Appraisal (2332)
iv. Sale (2334-38)
v. Act of Sale (2342)
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vi. Distribution of proceeds (2373-77)
VI. Execution of Non-Money Judgments
a. Judgment of Possession (2501)
i. Application
1. Judgment upholding possession leads to a writ of possession.
2. If they still don’t leave, can get a writ of distringas or eviction
ii. Writ of distringas (Movables)
1. Clerk issues writ of possession to sheriff to seize & deliver
property to right possessor if a movable
2. If Δ has concealed or removed it from the court’s jurisdiction, the
party entitled to performance may get by contradictory motion the
following remedies: (2502)
a. Writ to destrain Δ’s property
i. All of it until he turns over what he’s supposed to
ii. Sheriff seizes & holds until disposition ordered by
the court, after Δ proves he has complied with
judgment & paid any damages that may have been
ordered
iii. Perishable property may be sold with proceeds held
by sheriff subject to pending court order
b. Contempt order
c. Judgment for damages (although could sue for damages
in a separate action
iii. Writ of eviction (Immovables)
1. Compel unlawful possessor to vacate by use of force
b. To do or refrain from doing
i. Upon refusal or neglect to comply, party can get following remedies by
contradictory motion:
1. Contempt order
2. Judgment for damages
VII.Execution of Money Judgments
a. Executing Money Judgments on Immovables
i. Judicial mortgages
1. Defined
a. A general mortgage which applies to ALL of D’s IM
property in the parish of recordation, owned now & in the
future
i. Does NOT apply to property of a deceased person’s
heirs or legatees who have accepted his succession
(3306)
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b. Created by recording judgment in mortgage records in
judgment D’s parish of domicile & also any and all parishes
where he might have IM property
2. Creation
a. Can be recorded as soon as the final judgment is rendered
(signed) from the trial court, even if delays for appeals have
not run, bc recordation is NOT considered
“execution” (whereas a FIFA CANNOT issue until
judgment is executory) (3304)
i. JM can be erased as “premature” during this time
but the judgment C is still protected by suspensive
appeal bond
ii. Only the D can exercise the right to have
recordation erased during pendency of appeal
1. Lower ranking Cs cannot.
iii. Judgment C is an “indispensable party” to a rule to
erase
3. Effect of Public Recordation: protects judgment C’s interest
from 3rd persons
a. Holder of mortgage is protected in their interest in the
property even if judgment D sells to a 3rd party.
b. Mortgage is enforceable against such 3rd parties—they buy
the property subject to the mortgage
c. Per due process concerns, 3rd party MUST receive notice
prior to foreclosure (seizure). Mennonite
ii. Effects of Judicial Mortgage (3303)
1. General Rule
a. Binds property judgment D owns at the time mortgage is
created AND any future property he acquires
i. If current property already has a mortgage on it, the
judicial mortgage falls in line behind it
2. Exception
a. Pre-existing vendor’s lien would take precedent
i. New mortgaged property, judicial mortgage comes
behind special mortgage
3. IMP: Not an execution of the judgment, but merely an effect of a
judgment
iii. Mortgages are ranked in priority based upon date of recordation
1. Significance
a. Proceeds from judicial sale go to 1st in rank
b. If judgment is not satisfied by sale proceeds, then it
continues in effect until additional sales proceeds are
recognized
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2. Steps to Get Ranking
a. 1—Record judgment to create a lien on the debtor’s
property
b. 2—Ranking runs according to recordation
i. A judgment rendered by the district court of one
parish need not be made executory to be operative
in another parish.
ii. Associates v. Hillebrandt: Πs judgment was earlier
in time than the Δ’s judgment, but Δ recorded first,
although Δ did not make it executory. Rank goes to
the person who recorded first.
iii. Ex.—2nd on the mortgage books wants for the
inscription of the first to be gone so that he would
be first to get the money from a judicial sale. A 3rd
party cannot bring a motion to do this, only a debtor
can.
c. 3—Avoid premature execution under CCP 2252
i. Kimberly v. Vestal: late-seizing Fi-fa prevailed even
though there was a prior seizure, as the prior seizure
was premature because Δ applied before CCP 2252
had run.
d. 4—Recording is not a step in execution
e. 5—If a debtor takes a suspensive appeal, he may erase the
inscription.
i. If it is erased, it is as though it were never recorded,
and there are no residual effects. Goldking v.
Primeaux
f. 6—Creditor looks to suspensive appeal bond for security
i. Should test the security of the bond on that rule to
erase
iv. Termination of Judicial Mortgages
1. Proceedings
a. If there is a proceeding to cancel the mortgage, the
mortgagee must be present. Matherne v. Guillot [can’t erase
an inscription without having the holder of the debt/
judgment in the case].
2. Termination permitted by summary proceedings; jurisdiction
of court to order (13:4436.1)
a. Judgment debtor who appeals the judgment may obtain an
order that terminates a judicial mortgage created by
recording the judgment that directs the recorder to erase the
judgment from his records.
b. Proceeding is summary.
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c. Court that renders judgment appealed from has jurisdiction
of the proceedings to terminate a judicial mortgage whether
or not the judicial mortgage results from the recordation of
the court’s judgment or that of an appellate court following
the appeal of the judgment.
i. Mortgage will be cancelled if suspensive appeal is
timely, bond is proper in form and amount, and
surety on bond is qualified
3. Termination of mortgages resulting from judgments of
appellate courts (13:4436.3)
a. Court hearing the rule must find that appellate judgment
was not executory when the proceedings for termination
were filed, and that there is a valid bond and qualified
surety.
4. Testing Sufficiency of the Bond (CCP 5123)
a. Any person in interest who wants to test the sufficiency,
solvency of the surety, or validity of bond furnished as
security can order party furnishing the bond into court in
which proceeding was brought to show cause why bond
should not be decreed insufficent or invalid.
b. If bond is sought to be held invalid on the ground of the
insolvency of a surety other than a surety company licensed
to do business in this state, the party furnishing the bond
must prove the solvency of the surety.
i. Surety is deemed qualified unless judgment creditor
expressly denies in answer (13:4436.4)CCP 5123
is the testing device
1. If surety is licensed in LA, must also proved
surety lacks necessary qualifications
c. Notice must be given to judicial mortgage holder before
inscription can be erased
b. Executing Money Judgments on Movables
i. Perfect a UCC 9 SI and it acts just like a JM
ii. Recorded by Sec. of State
VIII.Property Exempt from Seizure
a. Effect of exemptions
i. Sheriff has the responsibility to make sure he seizes only items susceptible
to seizure
b. Homestead exemption
i. Amount of exemption
1. General rule: Home is exempt up to $25K or 200 acres,
whichever is greater
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2. Exception: Debt resulting from catastrophic event will result in
the entire value of the homestead being exempted
ii. To get the exemption
1. Homeowner must intervene & assert exemption
2. Exemption is NOT available against the debt of the property’s
purchase (can’t plead homestead exemption against person who
lent the borrower money)
3. Sales proceeds have to be enough to clear $25K exemption &
amount(s) of any superior SIMPLs
c. General Exemptions from Seizure (13:881)
i. Garnishment:
1. 75% of what one earns is exempt from seizure by way of
garnishment
2. Exception: Exemption is only 50% for child support; only 60% for
spousal support
3. Employees cannot be fired for having wages garnished
ii. Tools of trade:
1. Except for the debt used to purchase them
2. Applies to property necessary to exercise a trade, calling, or
profession by which he learns his livelihood
3. Limited to: Tools, instruments, & books, $7,500 towards 1 motor
vehicle, 1 utility trailer, etc.
iii. Personal items: clothes, bedding, pictures, pets, furnishings, 1 cow & all
chickens
iv. Pensions, annuities, retirement plans: Not exempt for support debt
d. Wrongful seizure
i. Seizure for exempt items can result in “wrongful” seizure
ii. Damages are against seizing C, not the sheriff
IX. Distribution of Proceeds of Sale
a. Costs of sale
b. Homestead exemption (if asserted)
c. Superior SIMPLs
i. SIMPL = Security Interest, Mortgage, Privilege, & Lien
d. Judgment C’s judgment amount
e. Inferior SIMPLs
X. Seizure under FIFA
a. General Dispositions
i. Can only be done by trial court; if appellate court judgment, must file
certified copy with clerk of trial court
ii. Rule
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1. Money judgment may be executed by a writ of FIFA, directing
the seizure & sale of all of the D’s property so specified on the:
a. Writ or
b. Garnishment of wages
c. Attachment
i. Sheriff will only seize property specified in FIFA
2. Property in another parish: Writ must be directed to the sheriff
of that parish
3. Judgment rendered in another parish: may be enforced in
another parish without further court proceedings EXCEPT where
judgment is through garnishment proceedings or the examination
of the judgment debtor
4. Foreign judgments: Judgment C must first have the judgment
recognized & made executory by a LA court
iii. Delays for Execution
1. Regular judgment: May not be executed until the delay for
suspensive appeal has elapsed and a suspensive appeal has not
been taken (2252)
a. Delay commences with service of notice of the final
judgment [1913(A)]
b. Clerk must mail a copy of the final judgment to D
2. Judgment rendered by default: & Δ not personally served and
did not make an appearance, notice of judgment must be served by
the sheriff ([1913(B)]
a. Judgment C must then await expiration of the delay for new
trial (7 days exclusive of holidays) and subsequent
expiration of delay for suspensive appeal before executing
b. Movables (2292)
i. IF no perfected SI, then seizing C, by act of seizure (or attachment preseizure) acquires a privilege on the property seized
1. Entitled to preference over ordinary Cs
2. Several judgment Cs are entitled to judgment among themselves
according to the order of their seizures
3. Privilege is effective from date of seizure
ii. Recordation is all that is required for movables
1. Court can order deliver of money or other property on the person
of the D
c. Immovables (2293)
i. Sheriff files a:
1. Notice of seizure of IMs in the mortgage records
2. Notice to judgment D
3. Notice to 3rd persons who have registered for notice
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a. Registration is insufficient for Mennonite Due Process.
Need to provide notice to all parties, whether they have
registered or not
ii. Constructive seizure
1. Sheriff makes this by serving notice upon D AND filing in
mortgage records
iii. IM located in more than 1 parish:
1. Can be fully seized by sheriff of either parish
iv. Property is considered seized upon recordation in BOTH:
1. Mortgage records AND
2. Sheriff’s “Seizure Book”
v. Actual seizure of IM
1. Sheriff can do this
2. Debtor’s rights/cause of action, once the suit has been filed, can be
seized and then D can’t proceed without the seizing C as an
intervenor
d. Deadline for execution (2294)
i. Sheriff has 1 year from date of issuance of FIFA to execute seizure
1. IMP: Sheriff not liable for mistaken/improper seizures
XI. Proceedings Pending the Sale
a. 3rd Party Options
i. 3rd party owner has the right to:
1. Arrest the seizure & consequent sale, by injunction, on the
grounds that:
a. Mortgage was not recorded
b. Inscription of recordation had preempted
c. Debt secured by mortgage is prescribed or extinguished
d. Discussion
2. Pay the balance due in principal with interest, attorneys fees,
& costs
3. Intervene in the executory proceeding to assert any claim
which he has to enhance the value of the property due to
improvements
ii. Intervene & assert (1092)
1. 3rd person asserting ownership of seized property can assert his
claim by intervention, filed at any time prior to judicial sale,
2. Court may grant 3rd party injunctive relief to prevent sale until his
claim can be heard
rd
iii. 3 party claiming superior mortgage or privilege on property seized
MUST:
1. Intervene & assert his superior SIMPL, if it covers all of the seized
property, at any time prior to distribution of proceeds of the sale
La. Civ. Pro. II Outline: Crawford-Spring 2011
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2. Demand separate appraisal & sale if his SIMPL is only over part of
seized property, so that his proportion of the proceeds may be
determined
3. Can also assert invalidity of seizing creditor’s claim
iv. Sheriff’s action upon intervention (2298)
1. If there has been an intervention, sheriff will hold amount of
proceeds, sufficient to cover that claim, until it is adjudicated
b. Debtor’s Options Prior to Sale
i. Ordering of the sale (2295)
1. If several items of property have been seized, or if 1 item of
property that is divisible has been seized, the D may, prior to 1st
advertisement, specify the order in which items or portions of
property will be sold, EXCEPT THAT:
a. C can direct sale of property burdened with a mortgage
other than the 1 seized upon
2. IF D does NOT indicate order of sale, sheriff has discretion
ii. Reduction for excessive seizure (2296)
1. If property seized exceeds the value of the judgment:
a. D may file contradictory motion, at least 10 days before
sale, to release excess portions of property EXCEPT that
i. D may not obtain a release on property burdened by
a mortgage, other than the seizure mortgage
b. “File rule to show cause why excess property should not be
released”
c. D can get damages for excessive seizure
iii. Injunction prohibiting sale (2298)
1. ONLY way the D can halt sale, by intervention & injunction,
IF:
a. Sale is proceeding contrary to law
b. Judgment is extinguished
c. Judgment is null
iv. Assert homestead exemption
EXECUTORY PROCESS
I.
Introduction
a. Defined
i. Process by which a lender gets his money from a delinquent borrower IF
the note contains a confession of judgment
1. Note: debt/obligation
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2. Mortgage is accessory to and secures the debt
a. Gives the lender the right to seize & sell (foreclosure) and
apply proceeds to the note
b. Balance left on note, after application of sales proceeds
becomes a “deficiency judgment”
c. Lender has to file, in an ordinary proceeding, for
recognition of the deficiency judgment
d. Court then renders a judgment, which becomes executory,
and routine FIFA procedure is pursued to obtain balance
due
3. Non-curable defect in executory package (non-authentic act of
mortgage): then you have to convert to an ordinary proceeding
a. Swear out petition that:
i. Debtor owes on promissory note
ii. Recognize mortgage as prime
b. Get a regular judgment on note and then FIFA
ii. Has lessened in importance as a method of enforcing security interests in
movable property with the adoption of the UCC and advent of limited selfhelp, but still plays a valuable role in the enforcement of mortgages on
immovable property
b. Essence of Executory Process
i. A C whose D has confessed judgment in advance may obtain immediate
seizure and prompt judicial sale of the security by submitting sufficient
proof to the court
c. Purpose of Proceeding (2631)
i. To effect the seizure and sale of property without citation and judgment
(ex parte)
ii. To enforce a mortgage or privilege thereon, evidenced by an authentic act
importing a confession of judgment
1. “Confession of judgment” (2632)—An act evidencing a mortgage
or privilege imports a “confession of judgment” when the obligor
therein acknowledges the obligation secured thereby, whether then
existing or to arise thereafter, and confesses judgment thereon if
the obligation is not paid at maturity
iii. AND in all other cases allowed by law.
d. Jurisdiction & Venue
i. Jurisdiction
1. On either movable or IM property may be brought in district court
or, subject to the “amount in dispute” limitation, in city or parish
court [4850(A)]
2. May NOT be maintained in justice of the peace court [4913(B)(7)]
ii. Venue (2633)
1. To enforce a mortgage or privilege, may be brought in either:
La. Civ. Pro. II Outline: Crawford-Spring 2011
35
a. Parish of situs OR
b. Per 42 ONLY
2. Non-waivable
II.
Procedure (2634)
a. Person seeking to enforce a mortgage or privilege in an executory proceeding
SHALL:
i. File a petition praying for seizure & sale of property affected by the
mortgage/privilege
ii. Attachments
1. Evidence of default, authenticated by affidavit before a notary
2. Authentic evidence of:
a. Note, bond, or other instrument evidencing the obligation
secured by the SIMPL
b. AA of mortgage/privilege on immovable property
containing a confession of judgment (CCP 2632 & 2635)
i. Bearer paper: Does not need to be authentic
1. No evidence of transfer/negotiation of bear
paper is required
ii. (CCP 3635)
iii. SI: Special form requirements (9:5353)
iii. Deemed “authentic evidence” for purposes of executory process (CCP
2636)
1. For Movables: Copy of the note bond or other instrument
evidencing the obligation secured by the SIMPL, paraphed for ID
with the act of mortgage or privilege by AA or private act duly
acknowledged by officer before whom it is executed
a. 9:5555 allows affidavit, based upon personal knowledge, to
substitute for paraph
2. Certified copy or a duplicate original of an AA
3. Certified copy of any judgment, judicial letters or court
iv. Evidence which need not be authentic (2637)
1. Other evidence necessary for Π’s claim:
a. Identifying proper party Δ
i. Deceased Δ; May be prosecuted against the
1. Surviving spouse (2671)
2. Heirs who have accepted succession (2672)
OR
3. Succession representative (2673)
ii. Otherwise, may be pursued through an attorney
appointed by the court (2674 & 2641)
1. Absentee Δs, etc.
La. Civ. Pro. II Outline: Crawford-Spring 2011
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b. Fact that note or principal obligation has matured and the
amount due on it
c. Any amount advanced by the mortgagee to preserve the
property
v. Evidence of collateral mortgages
1. Defined
a. A fictitious debt on property to secure an actual debt
unrelated to that property
2. Creation
a. Lender executes a hand note, which is analogous to a
promissory note. It is a security agreement under the UCC.
b. Once money is lent on the basis of the collateral mortgage,
the CM is recorded and remains even IF the hand note is
paid off.
c. Hand note is the debt, NOT the CM
d. Can use a CM to secure a hand note someone else is the
debtor on. ONLY those signing the hand note are
personally liable.
3. Proof
a. If mortgage sought to be enforced is a collateral mortgage
securing multiple or other and future indebtedness of
debtor, the existence of the actual indebtedness can be
proven by:
i. Verified or supplemental petition, with handnotes
OR
ii. Other evidence representing actual indebtedness
attached as an exhibit to petition
4. A collateral mortgage standing alone is virtually meaningless, as it
has no intrinsic value and evidences no debt or obligation actually
owed to anyone. . . . . With these principles in mind, we decide
today that personal liability beyond the value of the mortgaged
property does not generally arise on the collateral mortgage note
when the note is pledged to secure the obligation of a third party.
Diamond Services Corp. v. Benoit
vi. Bearer Paper (13:4102)
1. If mortgage is evidenced by bearer paper, don’t need authentic
evidence of its transfer, if it has been transferred or sold by the
original holder, when you use executory to foreclose on it
a. Bearer paper can be negotiated by manual transfer: Made
out to “bearer” or mode out to JS, signed by JS and
endorsed by JS
2. A mortgage note on movables, that is transferred/sold, by private
act duly acknowledged is deemed authentic
La. Civ. Pro. II Outline: Crawford-Spring 2011
37
3. Note holder on a movable can approve the sale of that property.
Approval can be act under private signature duly acknowledged
and deemed authentic.
III.
a.
b.
c.
d.
IV.
a.
b.
c.
d.
Demand for Payment (2639)
Before issuing writ of seizure & sale (serves as notice):
i. Clerk shall issue a demand upon the Δ for payment of the amt due & all
court costs
ii. Demand shall notify the Δ that, in default of payment within 3 days of
service (exclusive of holidays), a writ of seizure & sale will be issued and
the property described in the petition will be seized and sold
Citation Is UNNECESSARY:
i. Demand for payment shall suffice as notice, and must be to both debtor
and 3rd parties
Unrepresented Δs (2641)
i. Demands, notices, and other documents shall be served upon the attorney
appointed to represent him
If after demand, debtor DOES NOT pay:
i. Order for writ of seizure & sale (2638): If the Π is entitled to, court shall
order issuance of a writ of seizure & sale, commanding sheriff to seize and
sell the property affected by the mortgage/privilege.
Execution of the Writ of Seizure & Sale (2721)
Time of Seizure
i. Sheriff must seize the property affected by the SIMPL immediately upon
receiving the writ of seizure & sale, but NOT BEFORE the expiration of
the 3 day delay allowed for payment of the demand required by 2639,
UNLESS this demand has been waived
Service
i. Sheriff must serve the Δ written notice of the seizure of the property
Sheriff’s Liability
i. Sheriff has no liability to any 3rd party for wrongful or improper seizure of
secured collateral of the same general type as described in debtor’s
security agreement.
ii. Sole remedy against secured creditor: for actual losses sustained by
wrongful or improper seizure
Immovable Property
i. May effect seizure of IM property either by actual seizure or by filing a
notice of the seizure in the mortgage records and serving a copy of notice
on the Δ [2721(B) & 13:3851]
ii. Must provide notice to other parties whose names and addresses can be
ascertained by diligent effort, including those who have filed a request for
notice of seizure
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38
V. Contesting the Seizure & Sale: Debtor’s Remedies Prior to the Sale
a. Debtor’s Options
i. Defenses & procedural objections to an executory proceeding may be
asserted through:
1. Suspensive appeal OR
2. Injunction OR
3. BOTH
b. Injunction
i. Debtor must petition court to enjoin & dissolve
ii. Grounds for injunctive relief
1. Δ in executory proceeding may arrest seizure & sale of the
property by injunction when the debt secured by the SIMPL is:
a. Extinguished;
b. Legally unenforceable; OR
c. Procedure required by law for executory proceeding has
not been followed
i. Must have strict compliance
iii. Procedure for Injunction (2752)
1. Petition for injunction must be filed in court where executory
proceeding is pending, either in the executory proceeding or in a
separate suit
2. TRO shall NOT be issued, BUT Δ may apply for a preliminary
injunction in accordance with 3602
a. Notice & opportunity for a hearing, 2-10 days after service
of notice
3. If court finds that TRO or preliminary injunction was wrongfully
issued, court, unless proceedings are stayed, in addition to damages
authorized under 3608, may allow the sheriff to proceed with the
sale by virtue of prior advertisement, if it hasn’t expired
a. 2298—court may award attys fees also.
iv. Creditors Options When Injunctive Relief is Granted
1. Creditor can either:
a. Correct errors and file another executory proceeding OR
b. File for a judgment on the note in an ordinary proceeding,
then file the judgment as a judicial mortgage and proceed
with a writ of FIFA
i. Risk to creditor: that the judicial sale by FIFA is
subject to being overturned, whereas judicial sale by
executory proceeding is far less susceptible
v. Security Not Required in Certain Cases (2753)
1. Original debtor, surviving spouse in community, heirs, legatees,
and legal reps. are NOT required to furnish security for TRO
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or prelim. Injunction IF such relief is applied for on the
following grounds:
a. Debt secured by SIMPL has been extinguished or is Rx-ed
b. Enforcement of the debt is premature, either because the
original term for payment or any extension granted by
creditor has not expired
c. Act evidencing SIMPL is forged or debtor’s signature on it
was procured by fraud, violence, or other unlawful means
d. Δ has a liquidated claim to plead, in compensation against
the debt
e. Order directing the issuance of the writ of seizure & sale
was rendered without sufficient authentic evidence having
been submitted or the evidence was not actually authentic
c. Suspensive Appeal
i. Time of making
1. From an order of seizure & sale must be taken within 15 days of
the signing of order of seizure & sale
ii. Security
1. Must be at least ½ of the balance due on the debt secured by the
mortgage sought to be enforced, including principal, interest
accrued to date & attys fees
d. Conversion to an Ordinary Proceeding (2644)
i. Π may convert by amending his petition, so as to pray that the Δ be cited
& for judgment against him on the obligation secured by the mortgage/
privilege
1. Motion to dissolve writ of seizure & sale
VI. 3rd Party Remedies
a. Intervene & Assert (1092)
i. 3rd Person Asserting Ownership of Seized Property
1. May be filed at any time prior to judicial sale
2. Court may grant injunctive relief to prevent the sale before an
adjudication of ownership claim
ii. 3rd Person Asserting SIMPL on Seized Property: Can intervene and assert
his right to a share in the proceeds of the sale of the property in a summary
proceeding (2643)
1. SIMPL claimed on entire property (1092)
a. Regardless of whether the SIMPL is superior or inferior to
that of seizing creditor, intervention may be filed at any
La. Civ. Pro. II Outline: Crawford-Spring 2011
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b.
c.
d.
e.
time prior to distribution by sheriff of proceeds of sale of
the seized property
i. Court must order the sheriff to hold the proceeds
subject to further orders
2. SIMPL claimed on part of property (1092)
a. If intervention is filed prior to the sale, the court may order
the separate sale of the property on which the intervener
claims a SIMPL
b. If a separate sale is not feasible or necessary, or intervener
has no right thereto, court may order the separate
appraisement of the entire property seized and of the part
thereof on which intervener claims a mortgage or privilege
3. Intervener claiming the proceeds of a judicial sale does NOT
thereby admit judicially the validity, nor is he estopped from
asserting the invalidity, of the claim of the seizing creditor
rd
3 Party Can Assert Mennonite, Due Process, Lack of Notification Claim
Alienation of property to 3rd party disregarded (2701)
i. Mortgage/privilege evidenced by authentic act importing a confession of
judgment that affects property sold by original debtor to 3rd party may be
enforced against the property without reference to the sale or alienation to
the 3rd party
ii. Executory proceeding shall be brought against original debtor
iii. 3rd party, current owner need not be made party to the proceeding
Rights of 3rd person who has acquired property & ASSUMED the debt: (2702)
i. Pay the balance due in principal, interest, attorneys fees & costs OR
ii. Arrest S&S, by injunction per 2751, on grounds of:
1. Extinguished
2. Legally unenforceable
3. Procedure required by law for executory proceeding has not been
followed (strict compliance)
rd
Rights of 3 Possessor Who Acquired Land but DID NOT ASSUME indebtedness
include: (2703)
i. Pay the balance due in principal, interest, attys fees, and costs OR
ii. Arrest S&S by injunction per 2751, on grounds of:
1. Extinguished
2. Legally unenforceable
3. Procedure required by law for executory proceeding wasn’t
followed
4. Mortgage was not recorded
5. Mortgage inscription had preempted
iii. Intervene & assert any claim for enhanced value of the property due to
improvements made by him or prior 3rd party possessor through whom he
claims ownership
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41
1. Intervention will be a summary proceeding
JUDICIAL SALE
I. Judicial Sale
a. Advertisement of Sale (2331)
i. Time of making
1. Must wait at least 3 days, exclusive of legal holidays, after service
of notice of seizure upon judgment debtor before advertisement:
ii. Requisite number of advertisements
1. At least once for movables
a. 10 days before sale
2. At least twice for immovables
b. 1st one at least 30 days before sale
c. 2nd one at least 7 days before sale
b. Location/Time of Sale
i. Must be held at the courthouse or some other public place in the vicinity,
on MWF or Saturday
c. Appraisal of Property (2332)
i. Rule
1. Must be appraised according to law, UNLESS debtor has waived
his right to appraisal AND judgment is in rem
ii. Time requirements
1. Notice to debtor to appoint an appraiser: unless waived, at least 7
days before the sale
2. Appraisal must be made and delivered to sheriff at least 2 days
before sale
iii. Property Subject to a SI
1. There is NO requirement that seized property subject to a SI under
UCC 9 be appraised prior to a judicial sale.
iv. Executory Proceedings (2723)
1. MUST appraise UNLESS waived in act evidencing the SIMPL
AND Π has prayed that the property be sold without appraisal
AND order of S&S directed that the property be sold “as prayed
for.”
2. Even if proceeds are insufficient, debt is considered satisfiedif
there has been NO appraisal.
d. Superior Creditors
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e.
f.
g.
h.
i.
i. A superior creditor over a portion of seized property MUST intervene,
assert priority, and demand separate appraisal and sale (movables and
immovables)
1. This assures that the superior creditor’s proportion can be
identified
2. IF superior creditor has perfected his security interest, then the
mortgage rules apply
a. IF price is not high enough to meet the superior debt, sale
won’t go through
b. IF price is high enough, purchaser pays only excess to
sheriff, then assumes responsibility to pay superior creditor
ii. Superior creditor over the whole of the seized property does NOT need a
separate appraisal and sale
1. Just need to intervene and assert superior SIMPL
2. If perfected SI/recorded mortgage, then NO need to intervene and
assert
Sale of Perishable Property (2333)
i. Court may, at request of party, order immediate sale at public auction,
without advertisement or appraisal, perishable property subject to loss
pending compliance with usual formalities
1. Notice of time and place of sale shall be given to all parties
2. Sold for cash to highest bidder
Payment of debt prior to adjudication (2340)
i. Payment to sheriff of judgment, with interest and costs, will prevent the
sale.
Can’t hold seized property indefinitely; must proceed with a timely judicial sale
(Carroll)
Reading of advertisement & certificates
i. Sheriff has to read aloud, at time of sale:
1. Advertisement & mortgage (2334)
2. Announce that property is to be sold for cash, subject to any
SIMPL thereon, superior to that of the seizing creditor (2335)
Minimum Price (2336)
i. Can’t be sold if highest bid is less than 2/3 of appraised value
1. If less: then re-advertise, THEN
2. 2nd sale: Sell to highest bidder
ii. No sale 2nd time IF:
1. Bid is insufficient to discharge costs of sale and all superior
SIMPLs (2337)
2. AND $25K homestead exemption, if applicable & asserted
iii. Debt owed to seizing creditor shall be reduced by ½ appraised value
La. Civ. Pro. II Outline: Crawford-Spring 2011
43
iv. IF the seizing creditor’s interest is superior to other creditors, he may
require that the property be sold, even if the price is not sufficient to
satisfy his own interest (2338)
1. Seizing creditor needs to be present at the sale to compel sale for
less than necessary value
2. If there are other inferior judicial mortgages, they get cleared
from the property sold, but their judgment remains, as does the
judicial mortgage, as it effects other property, current or future
j. Judgment creditor & debtor may bid on the property at the sale (2339)
k. IF debtor does not stop proceedings before funds are disbursed, then it is too late
l. 3rd party with property interest can ALWAYS overturn d/t Mennonite, even if they
didn’t receive notice
ADJUDICATION OF THE SALE
I. Adjudication of the Sale & Its Effect
a. Effect (2371)
i. Act of sale transfers to the purchaser all the rights and claims of the
judgment debtor as completely as if the judgment debtor had sold the
property.
b. Sale Subject to Superior or Lease (2372)
i. Property is sold subject to any real charge or lease with which it is
burdened, superior to any SIMPL of the seizing creditor.
1. If there is a SIMPL on the property superior to that of the seizing
creditor, the purchaser shall pay to the sheriff only that portion of
the sale price which exceeds the amount of the superior SIMPL.
(2374)
a. Purchaser has to pay to superior creditor the amount of
their SIMPL
b. If purchaser does not, the superior creditor may enforce
their simple against the purchaser
c. Distribution of Proceeds of Sale (2373)
i. After deducting costs, sheriff must:
1. Pay debtor homestead exemption, if he asserted it
2. Then subtract superior SIMPLs, buyer will pay directly
3. Then pay the amount due the seizing creditor
4. Then inferior SIMPLs on the property sold
c. If amount leftover is not enough to pay inferior SIMPLs,
then sheriff will deposit remainder with the court and
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44
d.
e.
f.
g.
inferior creditors will have to proceed to have their claims
adjudicated
5. Anything leftover goes to judgment debtor.
Purchaser Liability (2375)
i. Liable for nothing beyond the purchase price. Must pay the full price to
the sheriff despite the existence of inferior SIMPLs to the seizing creditor
ii. Sheriff must give the purchaser a release from the:
1. Seizing creditors SIMPL AND
2. All inferior SIMPLs and direct mortgage recorder to cancel their
inscriptions (2376)
iii. Inferior judgment creditors can simply reinscribe a judicial mortgage
against other property, current & future
Enforcement of mortgage or privilege superior to that of seizing creditor (2378)
i. If purchaser fails to pay the purchase price fully, seizing creditor may
direct sheriff to re-advertise or offer property for re-sale immediately
1. Immediate re-sale relieves 1st purchaser of any further liability
2. If there is a loss at a 2nd sale after re-advertisement, the 1st
purchaser is responsible for that loss
3. 1st purchaser can’t bid at a 2nd sale
Rights of buyer in case of eviction (2379)
i. If purchaser is subsequently evicted due to an unrecorded, undisclosed
SIMPL, the purchaser can sue either the seizing creditor or judgment
debtor for reimbursement of the undisclosed SIMPL, provided that the
purchaser gives the judgment debtor timely notice of the suit to evict.
1. Must be timely enough for the judgment debtor to defend the suit
IF he could have successfully done so.
In globo sales
i. C may compel an in globo sale, BUT the property must be appraised “with
such minuteness that it can be sold together or separately.” Williams v.
Perkins-Seigen Partnership
POST-SALE PROCEEDINGS
I. Post-Sale Proceedings
a. Procedure
i. Sheriff, after sale, will sign a return notice to clerk who issued writ
showing that all formalities were complied with, manner in which writ
was executed, description of property sold, purchaser’s name, purchase
price & distribution thereof
b. Overturning a FIFA judicial sale
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45
i. Debtor can overturn a 2 or 5 year
1. Fundamental flaws
a. Actions to set aside sale Rx in 5 years from date of sale IF:
(9:5642)
i. Owner knew sheriff was proceeding to sale his
property AND
ii. Purchaser remained in actual open and peaceable
possession for 5 years AND
iii. Purchaser paid consideration for the property which
was then paid over by sheriff to Cs of the real
owner of the property
b. “Fundamental flaws” include:
i. Failure to notify D or 3rd parties w/ interest of
seizure
ii. An absolutely null judgment
iii. Failure to notify spouse or co-owners in indivision
prior to sale of community property asset (may not
have a Rx limit)
2. Informalities (9:5622)
a. 2 years from sale, EXCEPT
i. Where minors or interdicts were owners, then 5
years
b. “Informalities” include:
i. Improper description of property
ii. Improper seizure, seized wrong thing
iii. Improper advertisement:
1. Not advertised
2. IM sale advertised only once
iv. Sale was part of a fraudulent conspiracy
v. Sale was for less than ½ appraised value
vi. No or improper appraisal
c. Executory Proceeding
i. Debtor CAN’T overturn, 3rd party can
ii. Once sheriff has adjudicated the sale from an executory proceeding, it is
final and CAN’T be set aside (13:4112)
1. Objections to form, procedure, or authentic evidence are no longer
available once sheriff has recorded the sale
2. HOWEVER, Cr thinks that a Mennonite objection by a superior
SIMPL holder or Magee by a co-owner could lead to overturning
the sale
3. Cr thinks that if seizing party bought the property, flaws might be
enough to overturn the sale because the C should not be able to
profit from his mistakes
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46
d. Deficiency Judgments & Executory Process
i. Deficiency Judgment Act (13:4106 et seq)
1. Rule
a. If seeking a deficiency judgment and you sell the property
without appraisal under executory process, the entire debt
is discharged.
b. Mortgagee/C forfeits right to thereafter proceed against the
D or any of his other property for such a deficiency
c. If the principle debt is discharged, the sureties are
discharged as well.
2. Waiver: Debtor CAN’T waive 13:4106, since it is declared as
public policy
ii. Application
1. Deficiency Judgment Act bar DOES NOT apply to UCC 9; no
requirement of appraisal to judicial sales under UCC 9
2. Applies ONLY to executory process, not ordinary process; thus,
does not involve ordinary judicial sales under FIFA
3. DOES NOT apply to the enforcement of SIs or agric. liens
iii. Getting a Deficiency Judgment
1. When DJ CAN be obtained (CCP 2771)
a. C may obtain a judgment against D for any deficiency due
on the debt after distribution of proceeds of the judicial sale
ONLY if property has been sold under executory
proceeding after appraisal in accordance with 2723
2. Procedure to obtain DJ (2772)
a. C may obtain DJ against D by either converting the
executory proceeding into an ordinary proceeding per 2644
OR by separate suit
b. In either case, Δ must be cited, and all delays & formalities
required in ordinary proceedings must be observed
iv. Rules re: blocking deficiency judgments
1. D can’t conceal defects in the C’s authentic evidence until after the
executory proceeding and use the defects to deprive C of a
deficiency judgment
2. Refusal of deficiency judgment deals with problems of appraisal,
NOT minor formal defects in executory procedure. 1st Guaranty
Bank of Hammond v. BR Petro Center
3. Deficiency judgment can’t be blocked for trivial flaws, but ONLY
for fundamental flaws, which may include: (Kinchen)
a. Trivial flaws
i. Prior to sale—stop the sale by injunction or
suspensive appeal
ii. After the sale—no effect
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b. Fundamental flaws
i. Lack of appraisal
ii. No notice of appraisal
iii. In globo sale under separate mortgages
v. Rules RE: Execution of Deficiency Judgment In Globo
1. If there are 2 or more parcels subject to a single mortgage, C can
foreclose upon them and sell them in globo
2. If there are 2 or more parcels subject to separate mortgages, C can
foreclose upon them but CANNOT sell them in globo unless there
is cross-collateralization
3. While a C is statutorily required to get an appraisal of each tract
separately, if an in globo appraisal is made, the jurisprudential
result seems to be that before the D can complain, the D must be
able to allege & prove prejudice by the appraisal process.
a. In other words, D must show that separate appraisals of
each tract would have resulted in a higher value overall.
vi. Deficiency Judgments are permitted in commercial AND consumer
transactions, regardless of appraisal or minimum bid, IF:
(13:4108.1-4108.2) (“dation en payment”)
1. Agreement is reached between D & C on the value of the property
a. Value=“reasonably equivalent value”
b. Requires a specific agreement on value, and for proof
purposes, should be in writing
2. Agreement must state that D will be liable for deficiency the
parties agree upon, which can’t be greater than the difference
between the loan payoff & the agreed upon “reasonably equivalent
value”
3. Agreement probably can’t be reached prior to default
f. For Movables
i. Movables in Creditor’s Possession: strict foreclosure
1. Do NOT need judicial process
2. Just sell it in “commercially reasonable manner”
3. Small “d” deficiency results, have to go through ordinary process
to get personal judgment for balance
ii. Movables in Debtor’s Possession
1. Two options:
a. Ordinary proceeding for debt obligation to get personal
judgment
i. Seizure & sale by FIFA
ii. Get balance by another ordinary suit
b. Executory proceeding
i. Authentic evidence of:
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1. Security agreement in writing, containing a
confession of judgment
2. Transfer of secured obligation proved by
any private writing
3. Signatures presumed genuine if alleged as so
in verification
4. Authority & capacity of signatories assumed
5. Amount of advances & fact of default
proved by verified petition
6. Allegations of verified petition may be by
personal knowledge & belief
ii. Need demand for payment, unless waived
iii. Seizure & judicial sale
iv. Get deficiency judgment
1. NO requirement for appraisal
SEIZURE IN THE HANDS OF 3RD PERSONS:
GARNISHMENT UNDER FIFA
I. Garnishment under FIFA
a. Defined
i. Attachment of property in the possession of a 3rd person (garnishee),
which belongs to the judgment debtor, can be either:
1. One time garnishment of debtors property OR
2. Ongoing garnishment (until debt is paid) of:
a. Debtor’s debt to 3rd person OR
b. Wages from 3rd person to debtor
b. Venue (2416)
i. Under FIFA, only where the garnishee may be sued under either:
1. 42 only (general rule of venue) OR
2. 77 (parish of office or establishment)
c. Mechanics
i. Effect of service (2411 & 2412)
1. Procedure
a. Judgment creditor files a petition (ordinary action) and gets
a writ of FIFA
b. Send petition to court asking them to serve process on the
garnishee to declare under oath what property he has in his
possession.
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c. May require a 3rd person to answer under oath the
interrogatories
2. Garnishee’s declaration
a. Must declare under oath what property of the judgment
debtor he has in his possession and to what amount the
judgment debtor is indebted to him, even if it is not yet due.
b. IF garnishment is not continuing, garnishee need only
provide info on property held at the time the garnishment
interrogatories were served upon him
3. Service upon Financial Institutions
a. Can honor checks presented to it, drawn upon the debtor’s
account in the normal course of business, for the day
garnishment is served and the next business day thereafter.
ii. Method of service; delay for answering (2412)
1. Service upon garnishee: To put into effect, sheriff will serve on
3rd party garnishee a petition with interrogatories and citation with
notice of seizure
a. If garnishee is an individual, service must be personal
b. When the citation and notice of seizure hit the 3rd party’s
hands, the property in his hands is seized.
c. If the sheriff says turn it over and you don’t have it, you are
liable for it.
d. If he admits in his answer that he has property belonging to
the debtor, shall order the garnishee to deliver property
immediately to sheriff or pay off the indebtedness.
2. Notice by judgment creditor: Must send written notice of
garnishment petition, although notice has no effect on the validity
of the seizure
3. Delay: Garnishee must file sworn answers to interrogatories within
15 days from the date of service upon him
iii. Effect of garnishee’s failure to answer (2413)
1. Failure to answer within delay for answer, Judgment C may
proceed by contradictory motion against garnishee for the amount
of judgment, with interests & costs
2. Failure to answer prior to contradictory motion is prima facie proof
that garnishee has property or indebted to judgment D to the extent
of judgment, interest & costs
iv. Notice of answer (2414)
1. Unless C files a contradictory motion traversing the answer of
garnishee within 15 days after service upon him of notice of filing
of garnishee’s answer, any property of judgment D in the
possession of the garnishee and any indebtedness to D which
garnishee has not admitted holding or owing must be released
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d. If Garnishment is in Court other than rendering court, THEN (2417)
i. Judgment from rendering court MUST be made executory in the other
court
1. Ex parte petition
2. Attach certified copy of LA judgment
3. Pray for judgment to be made executory
ii. Writ of FIFA may be issued by either rendering court or garnishment
court.
e. Delivery of Property or Payment of Indebtedness to Sheriff (2415)
i. IF garnishee admits of property or indebtedness or when trial on
contradictory motion finds such, court shall order garnishee to deliver
property immediately to Sheriff or pay him indebtedness WHEN due.
ii. Delivery/payment discharges garnishee’s obligation to judgment debtor to
the extent of the delivery/payment.
f. Other ways to garnish
i. Under a writ of attachment (debtor is out of the jurisdiction and you have a
claim to the property) OR
ii. Sequestor (debtor is about to flee)
II. Garnishment of Wages, Salaries, & Commissions
a. Mechanics (13:3921)
i. FIFA issues, garnishment is effected, garnishee answers interrogatories,
creditor files rule to show cause why the non-exempt proportion should
not be set at $X.
ii. There is no need for a hearing to accomplish this as long as competent
evidence is presented to determine the amount of the person’s earnings or
the amount of any other assets, or both… (13:3922)
iii. Court sets the amount subject to garnishment:
1. 25% of disposable earnings are seizable
2. 50% for child support and alimony
3. Exempt earnings include things like tax withholdings, SSI,
mandatory retirement
iv. Garnishee becomes obligated to submit a designated portion of debtor’s
wages to the seizing creditor each time the debtor gets paid
b. Effect
i. Garnishment seizes current and future wages, IF employee leaves and
returns within 6 months, garnishment is still in effect. (13:3923)
ii. If employee owes bona fide debt to his employer, then the employer has
priority in payment. (13:3925)
iii. If there are multiple garnishments, they are fulfilled in rank order of
posting.
1. Exception: Garnishments for child support or alimony shall prime
in enforcement, even over pre-existing civil garnishments.
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iv. Effect of garnishee’s failure to answer: liable for the unpaid judgment.
CONSERVATORY WRITS ON INSTATE
PROPERTY: ATTACHMENT & SEQUESTRATION
I.
Introduction
a. Purpose
i. Designed to nail down property until a lawsuit can be resolved.
ii. Done on an emergency basis
iii. The conservatory writ preserves the status quo pending the outcome of the
proceeding but does not transfer title; the plaintiff, if successful, must
proceed to judicial sale of the property through a writ of FIFA.
1. Denies Δ possession or control of the property, so subject to strict
construction & due process requirements
b. Jurisdiction over property in rem (8)
i. A court otherwise competent under the laws of this state has jurisdiction to
enforce a right in, to or against property having situs in this state, claimed
or owned by a non-resident.
c. In General
i. Prejudgment & Ex parte
1. Venue
a. ANY parish where the property, or part of it, is situated
(72)
b. For garnishment, under a writ of attachment or
sequestration, is in any parish in which the Δ may be sued
(2416)
ii. Petition (3501)
1. Writ of A or S shall issue ONLY IF petition for writ clearly shows
by specific facts, verified or by affidavit by petitioner, attorney, or
agent:
a. Nature of claim
b. Amount
c. Grounds
2. Must be verified by petitioner or atty. or agent through verified
petition or accompanying affidavit
iii. Strict Construction
1. Prevents amending petition to provide missing element and
validate an improper seizure under conservatory writ
iv. Issuance before petition is filed (3502)
1. May issue IF:
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a. Leave of court is granted
b. Π furnishes (1) affidavit & (2) security
c. Petition needs to be filed on first judicial day after writ is
issued unless for good cause, court grants a longer delay
v. Garnishment (3503)
1. Both writ of A & S is governed by the general rules of
garnishment under FIFA, EXCEPT:
a. The ONLY property that can be seized is property whose
ownership or possession is claimed by Π or on which he
claims a privilege
b. Use it when property is in the hands of a 3rd party
2. Ex.—Automobile that has a SI in it, note is in default, and
concerned that the debtor is going to leave town. At the moment,
the car is in a storage garage. Can seize in the hands of a 3rd party
by issuing a typical garnishment procedure to that garage.
vi. Return of sheriff; inventory (3504)
1. After executing writ of A or S, sheriff will deliver to clerk a written
return stating the manner in which the writ was executed, along
with an inventory of property seized
vii. Reduction of excess seizure (3505)
1. Debtor can file a rule to show cause why the order of S should not
be limited to 1 item if the value of the property seized exceeds
what is “reasonably necessary” to satisfy Π/creditor
2. This links up with 3506.
viii.Dissolution of writ; damages (3506) (this is a harsh procedure)
1. By contradictory motion, Δ may obtain dissolution UNLESS Π
proves the grounds upon which the writ was issued
a. Shifts BOP to Π/seizing creditor
b. Can’t cure deficiently issued writ. Correctness of procedure
determined from status at time of writ issuance. Can’t just
fix it.
2. Court may allow damages for wrongful issuance, on a motion to
dissolve OR reconventional demand.
a. Attys fees for services rendered in connection with
dissolution are included
ix. Release of property/security
1. By Δ (3507)
a. Can obtain release in 1st 10 days by putting up security in
the amount of the judgment
2. By Π (3507.1)
a. Can obtain release of seized property IF Δ does not in 1st 10
days after seizure AND upon:
i. Proof of ownership AND
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ii. Furnishing security, to lesser of ¼ value of property
OR ¼ value of claim (3508)
1. Security is released upon rendering of
judgment in creditor’s favor & EITHER:
a. Affirmed on appeal OR
b. No appeal taken & delay has elapsed
(3512)
rd
3. By 3 Party (3509)
a. When in possession of seized property, may intervene AND
i. Upon prima facie proof that he is owner, pledgee, or
cosignee AND
ii. Security in the amount of the judgment
x. Effect of release (3514)
1. Posting security, etc. before getting the writ dissolved does NOT
affect a party’s right from asserting a wrongful seizure action
xi. Necessity for judgment & execution prior to sale (3510)
1. Final judgment must be obtained in an action where a writ of A or
S has issued BEFORE seized property can be sold
a. Exception: Sale of perishable property may be sold per
2333 with proceeds held by the sheriff until the court orders
disbursement (3513)
2. This looks a lot like a FIFA, but it isn’t. Can’t have a judicial sale
based on seizure under the writ, but only on a FIFA seizure.
Hancock Bank [MS bank seized car in LA and obtained a judgment
for the amount claimed. Auto was seized under an order of
sequestration, and Π told sheriff to sale the car. IMP: Can’t sell by
writ, only by FIFA; seizure was dissolved, judgment was upheld]
xii. Privilege created by seizure (3511)
1. Either under writ of A or S, creditor acquires a privilege that is
effective as of the time of seizure IF judgment is rendered in the
creditor’s favor
II.
Sequestration
a. Defined
i. Sequestration permits one (Π) who claims the ownership, the right to
possession, or a lien upon property to have the property seized and held
pending the outcome of a suit to establish his or her rights in the property.
ii. Provisional seizure authorized by statute
iii. Diff. w/ attachment: Attachment is when a creditor has some connection
with the property like a SIMPL
b. Grounds for (3571)
i. Where Π claims of ownership, right to possession or SIMPL if it is within
the power of debtor/Δ to conceal, dispose of, or waste the property or
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c.
d.
e.
f.
revenues or remove property from the parish during the pendency of the
action
1. Movables – Where property is a movable, an allegation that the
property is w/in the Δ’s possession or control is sufficient to
establish the power to conceal or remove
2. Ex.—someone is about to skip town owing a lot of rent. LL needs
a quick action, so what can he do? If not so urgent, you would
draw up a petition showing the amount of rent due and say that
debtor/Δ has the power to put possession in apartment out of reach
and you need a sequestration to prevent this.
a. Need faster action than this? Under 3502 writ can issue
before the petition
3. Ex.—Big A Sand & Gravel: There was a vendor’s lien on the
equipment that had been bought, which is sufficient to justify
sequestration. However, in this case the Π seized bank accounts
which had nothing to do with sequestration, so the court dissolved
the writs and issued an injunction against further seizure.
ii. Lessor’s privilege, before rent is due IF:
1. Lessor has good reason to believe lessee will remove property
subject to lessor’s privilege (3572)
2. No need for lessor to pose security (3575)
3. If rent is paid when due, costs are assessed to lessor/Π
iii. When ownership of property is in dispute and neither party appears to
have a better right to possession, court may sequester on its own motion
(3573)
Security (3574)
i. Π will provide (except lessor)
ii. Court will determine amount
1. Amt must be sufficient to protect Δ against any damage resulting
from wrongful seizure, unless dispensed with by law (i.e. lessor)
iii. Security bond must be executed by:
1. Surety company licensed to do business in LA OR
2. Individual surety, approved by sheriff who is satisfied of surety’s
solvency (5127)
Venue
i. Parish of Δ’s domicile or parish where any portion of property is located
Release of property (3576)
i. Δ has 10 days to effect release by furnishing security.
ii. If he does not: Π may effect release by paying security (at least ¼ value)
or by written hold-harmless agreement for wrongful seizure with seizing
authority
Injunctive relief from sequestration (3663)
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55
i. Available to protect or restore possession of immovable property or of a
real right therein
ii. Available to:
1. Π in possessory action
2. Person disturbed in possession, which he & his ancestors in title
have had for >1 year and which he claims ownership, possession,
or enjoyment of
g. Other Means of Sequestration
i. Intangible movable property: accomplished by garnishment
ii. Immovable or real right therein: by petitory or possessory action
III.
Attachment
a. Defined
i. Attachment is the seizure of any property belonging to the defendant to
either create jurisdiction quasi in rem, or to preserve property at issue
pending the outcome of the proceeding.
b. Rank of seizing creditor
i. Determined by time of 1st “seizure” so the subsequent FIFA you get
“relates back” to the time of attachment (3511)
1. When attachment is maintained, Π has a privilege on property
which ranks from date of seizure
c. Jurisdiction; quasi in rem; attachment (9)
i. Ct which is otherwise competent under LA laws has jurisdiction to render
a money judgment against a nonresident IF:
1. The action is commenced by an attachment of his instate property
2. There is a connection between the property seized & the cause of
action. Shafer v. Heitner
ii. UNLESS:
1. The nonresident submits himself personally to the jurisdiction of
the court, in which case the judgment may be executed ONLY
against the property attached.
a. If Δ is subject to jurisdiction under long arm/minimum
contacts, then judgment can be sought for full amount (not
just the value of the property)
i. Kulko: no jurisdiction over nonresident who visited
CA in connection with custody
ii. Burnham: if you’re present, and served within the
jurisdiction, then that is sufficient for IPJ
iii. Superior Supply: Sending employees to solicit
sales was enough for jurisdiction.
iv. Bordelon: Engaged in LA by out of state law firm.
Court said sufficient for minimum contacts (factors
listed on p. 354)
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d. Grounds for attachment (3541)
i. May ONLY be obtained when the Δ (Resident):
1. Has concealed himself to avoid service of citation
2. Has granted a SI or has mortgaged, assigned or disposed of all or
part of his property, or is about to with the intent to:
a. Defraud his creditors OR
b. Give an unfair preference to one or more of them
3. Has converted, or is about to convert, property to money or
evidence of debt, with the intent to place it beyond the reach of his
creditors
4. Has left the state permanently or is about to do so, before judgment
can be obtained & executed against him
5. Is a nonresident who has no duly appointed agent for service of
process within LA
a. If a nonresident individual or partnership appoints an agent
for SOP informally, with no notice to the Sec of State, that
“appointment” is NOT a defense to a writ of A (13:3485)
ii. Grounds for attachment must be plead with particularity
1. Mere conclusory allegations are insufficient to form the basis of
the issuance of a writ of attachment. Bagert v. Goldsmith
e. Writ of A can be obtained:
i. In any action for a money judgment(3542)
1. Can’t get it for specific performance
ii. Before the debt sued upon is due (3543)
1. If debt is paid when due, then seizure costs are paid by Π/creditor
f. Duration of writ of attachment
i. If properly issued, it will remain until the debt is resolved.
ii. If writ is dismissed, Π’s action for money judgment continues
1. No appeal because interlocutory judgment; must seek supervisory
writs
g. Venue (3545)
i. Nonresident: situs of property to be attached
h. Π’s Security (3544)
i. Equal to the amt of the demand (exclusive of interests + costs)
ii. If Δ is nonresident: security can’t exceed $250, but upon proper showing a
court can increase up to the amount of the demand
i. Debtor’s Remedy
i. File rule to show cause why attachment should not be dissolved
1. BOP on seizing creditor to prove up grounds of attachment
ii. If creditor can’t prove up to the grounds for the attachment: he may be
guilty of wrongful seizure
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57
1. Be careful about what you allege, because if attachment is later
found to be ill-founded, you may be liable for damages and
attorneys fees. American Steel (p. 368)
2. Cannot get punitive damages for improper attachment
j. Summation
i. Non-resident
1. If non-resident has property in LA, file suit and obtain quasi in rem
jurisdiction by attaching property
a. Need connexity between debt, debtor & property
b. Non-res. can make special appearance to contest quasi in
rem jur. without subjecting himself to jurisdiction for full
amount of debt
2. Venue – parish where property is located
3. Security - Π must provide up to $250 security for damages in case
of wrongful seizure; can be increased up to amount of Π’s demand
4. Dismissal – dismissal of writ of non-resident attachment must be
suspensively appealed or jurisdiction is supplies is lost
ii. Resident Attachment
1. May be issued in any action for money judgment, including
unliquidated claims, claims not yet due, or claim for uncertain
amount where:
a. Debtor has concealed himself to avoid service of process
SPECIAL PROCEEDINGS
INJUNCTIONS
CCP 3601-3613
I.
Injunctive Relief
a. Action
i. Ordinary Proceeding so file ordinary action; BUT
ii. 3601(c) states that during the pendency of an action for an injunction, the
court may issue a temporary restraining order (TRO) or preliminary
injunction, or both except where prohibited by law
1. These are ancillary to the main action; done where there is some
time sensitivity
2. Preliminary Injunction – Summary proceeding
3. TRO – signed by judge ex parte. Only good for 10 days, then it
goes away.
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iii. Permanent injunction under 3601 will be issued if you can show the court
you will suffer irreparable injury if it is not granted. It is an ordinary
proceeding.
b. Types
i. “Prohibitory”
1. Most injunctions are “prohibitory,” meaning a party is enjoined
from doing something
2. Mandatory preliminary injunction may not be issued by a trial
court unless the party seeking the injunction proves by a
preponderance of the evidence at a full trial on the merits in which
the taking of evidence is not limited that he is entitled to the
injunction
ii. “Mandatory”
1. Require a Δ to affirmatively do something.
2. Can’t use mandamus to force a government official to do
something that is within their discretion. Have to use mandatory
injunction to get them to do something discretionary.
c. Grounds therefore (3601)
i. Where irreparable injury, loss or damage (something that can’t be
remedied with money and which can’t be measured by pecuniary
standards) may otherwise result to applicant. SREF Bon Marche.
1. “Irreparable Injury” – cannot be remedied with money [In case,
court stated that economic damage and loss of rental income is
measurable in money and doesn’t meet the definition of irreparable
injury]
2. Easiest way to establish: show that the action complained of is
prohibited by statute or local ordinance, then must show
irreparable harm
a. To enjoin enforcement of statute (criminal statutes), see
Labauve on p. 300
b. Irreparable injury is difficult to prove
3. Injunctive relief NOT AVAILABLE
a. Examples from cases include:
i. Old oak trees
ii. Noisy neighbors, barking dogs, church bells
iii. Whorehouse, funeral home
iv. CAN”T enjoin free speech, including libel (for
which there is an adequate remedy at law).
Greenberg.
v. Continuing emotional impairment
vi. Non-compete clause that is violated is NOT
irreparable because there are specified damages for
violation. Termplan Arabi (p. 390)
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59
vii. Failure to maximize sales decreased % rents but
was not irreparable because rents could be
calculated
viii.Gil net ban means you don’t catch fish, can you
show the missed fish belong to Π? NO property
interest in fish until they are caught, so there is
nothing to enjoin.
ix. Unfairly targeting customers of a certain
establishment with citations
b. Situations specifically provided for by law (8 pages all
together):
i. Enjoin a sale under FIFA (2298)
ii. Enjoin a sale under writ of S&S in executory
proceeding (2642, 2751)
iii. Enjoin sequestration (3663)
iv. In a divorce proceeding (3944)
1. DOES NOT require proof of irreparable
harm
v. Temporary child custody (3945), support (3946)
vi. Π in concursus proceeding (4660)
ii. During pendency of action
1. Court can issue either:
a. TRO OR
b. Preliminary injunction
2. Which one is determined by the urgency of the matter
3. Procedure: File petition for injunction, then either get an
immediate TRO & then a preliminary injunction OR just go to the
preliminary injunction if it can wait 2-10 days
iii. MUST be a filing of an ordinary injunctive proceeding in order to
pendente lite get a TRO or preliminary injunction
1. Δ can get damages if ancillary proceeding of TRO or prelim
injunction is ordered without main cause of action, ordinary
proceeding for injunction
2. CAN cumulate other ordinary proceedings with ordinary injunctive
proceeding
II.
TRO (3603)
a. Shall be granted without notice when (ex parte proceeding; go to judge after
filing petition for injunction):
i. Clearly appears from specific facts in verified petition or supporting
affidavit that immediate & irreparable injury, loss, or damage will result to
applicant before adverse party or attorney can be heard in opposition AND
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ii. Applicant’s attorney certifies to the court, in writing, the efforts which
have been made to give the notice or reasons supporting his claim that
notice should not be required
1. Certify in writing that you told the other side you were coming to
the judge to get a TRO
b. Form, contents, & duration of restraining order (3604)
i. TRO shall be:
1. Endorsed w/ date & hour of issuance
2. Filed in clerk’s office & entered of record
3. State why order was granted without notice & hearing
4. Expire by its terms: within such time after entry, not to exceed 10
days
5. May be extended: for good cause shown & prior to expiration, for
1 or more periods not over 10 days each
a. Party against whom it is issued may consent to extension
for longer than 10 days
b. Reasons for extension shall be entered into record
c. Effective IF:
i. Describes restrained conduct in reasonable detail in the order, not by mere
reference to the petition
1. Remember that a TRO subjects Δs to what are just like criminal
penalties. Criminal statutes can’t be vague, and the same is true of
a TRO
ii. Actual notice to the party restrained
d. TRO; Hearing on preliminary injunction (3606)
i. If a TRO is granted: application for a preliminary injunction shall be
assigned for hearing at the earliest possible time (3-10 days after service of
notice) and shall take precedence over all matters except older matters of
the same nature
ii. Party who obtains a TRO shall proceed with prelim injunction application
when it comes up for hearing
1. Failure to do so will result in dissolution of TRO
iii. Not appealable: issues are to be dealt with at the preliminary injunction
hearing
III.
Preliminary Injunction
a. Notice & Hearing (3602)
i. Prelim injunction shall NOT issue unless: notice is given to the adverse
party and an opportunity had for a hearing
1. Summary proceeding; rule to show cause
ii. Application for PI shall be assigned for hearing: Not less than 2 or more
than 10 days after service of the notice
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iii. If court denies the prelim injunction, then the TRO is automatically
dissolved: Can’t get TRO extended until ordinary proceeding
iv. Granting injunctions are within a judge’s discretion
b. Content & Scope (3605)
i. Order granting a prelim or final injunction shall:
1. Describe, in reasonable detail (specific), & not by mere reference
to the petition or other documents, the act or acts sought to be
restrained
a. If it is too general, it is invalid
2. Shall be effective against parties restrained, their officers, agents,
employees, attys & those persons in active concert or participation
with them, from the time they receive actual knowledge of the
order by personal service or otherwise
ii. Clerk of court CANNOT issue a TRO
IV.
General Provisions Applicable to both TRO & Prelim Injunctions
a. Dissolution or modification of TRO or prelim injunction (3607)
i. An interested person may move for the dissolution or modification of a
TRO or prelim injunction upon 2 days notice to the adverse party, or such
shorter notice as court may Rx.
ii. Court may also dissolve or modify TRO upon its own motion and after
notice to all parties and hearing
b. Proof at hearings; affidavits (3609)
i. Court may hear applications upon the verified pleadings, supporting
affidavits, or on proof as in ordinary cases
1. If a party wants a hearing on affidavits only: he has to so move
and get a court order stating as much.
ii. If the application is to be heard upon the affidavits: Court shall so order in
writing & a copy of the order shall be served on Δ with notice of hearing
iii. Applicant must deliver copies of supporting affidavits: to adverse party at
least 24 hours before the hearing (or shorter if the court so orders)
1. Adverse party shall then deliver to applicant, prior to hearing,
copies of their affidavits
2. Court, at its discretion, can allow additional affidavits to be filed at
or after hearing
iv. Applicant MUST prove “irreparable injury”: alleging a violation of a
statute is insufficient
c. Security for TRO or prelim injunction (3610)
i. Applicant is required to furnish amount set by court UNLESS dispensed
with by law
ii. Security shall indemnify the person wrongfully restrained or enjoined for
the payment of costs incurred & payment of damages
d. Damages for Wrongful Issuance (3608)
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i. Court may allow damages, on a motion to dissolve or a reconventional
demand
ii. Attys fees for services rendered in connection with dissolution may be
included
1. As long as the motion to dissolve is set for hearing during the 10
day period of the existence of the TRO, then even if the judge
doesn’t rule during those 10 days, attys fees and damages can be
awarded.
2. Just because the TRO expires of its own limits before the ruling
doesn’t mean the movant to dissolve would be awarded attys fees.
e. Penalty for disobedience (3611)
i. Contempt of court
1. Disobedient party MUST have had notice of injunction in order
for their disobedience to be found contemptuous
ii. Court may cause to be undone or destroyed: whatever may have been
done in violation of the injunction
iii. Person aggrieved may recover damages sustained
f. Appeals (3612)
i. TRO
1. No right to appeal
a. If denied: Π simply moves for prelim injunction
b. If granted: Δ can move for dissolution within 2 days of its
being granted. Will be heard on live testimony.
ii. Prelim Injunctions
1. Appeal allowed as a matter of right, but does NOT suspend or
delay injunction during its pendency UNLESS the court so
orders
a. Π can’t reinstate the prelim injunction that has been denied
at the trial court level during the pendency of the appeal
b. Δ can’t lift the prelim injunction granted at trial during the
pendency of his appeal
iii. Requirements for appeal of prelim injunction
1. Appeal of prelim injunction & posting of bond is required
within 15 days after the day of order/judgment
a. Court MAY stay further proceedings until appeal has been
decided, although a suit for a permanent injunction can
move forward while the appeal on the prelim injunction is
pending. Cloud v. Dyess (p. 404)
b. Parties can stipulate that final outcome of the prelim
injunction is what the final injunctive result would be.
Avoids the delay/expense of ordinary proceeding for
injunction.
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c. 15 day time limit for taking an appeal applies only to
preliminary injunctions, and NOT to final judgments which
disposes of a case on the merits. Calhoun v. State of LA
[appeal of exception of no right of action was a final
judgment]
2. When the court dismisses the ordinary injunctive proceeding
along with denying the prelim injunction, that is a final
judgment with a 60 day appeal delay
DECLARATORY JUDGMENTS
CCP 1871-1883
I.
Purpose
a. Idea is to get the court’s adjudication before the parties have acted and created
real obligations and real rights.
b. Essence of these actions is that you want to get the issue settled before shit hits
the fan.
c. Can be a stand alone ordinary proceeding OR done in conjunction with a
summary proceeding as an incidental question
II.
Scope (1871)
a. Courts may declare rights, status, and other legal relations, and it doesn’t matter
whether or not further relief could be claimed.
i. Proof of title: 3654 allows a person in possession of immovable property
to institute an action for declaratory judgment for the recognition of his
ownership against a person who claims ownership.
1. Diff. w/ petitory action: In a declaratory action, you only have to
prove better title. Otherwise you would have to prove title against
the world.
ii. Liability on a note: Don’t have to wait until sued before asserting “nonpersonal” liability on a note. Dazet v. French Market Homestead (p. 434)
b. No action or proceeding is open to objection on grounds that a declaratory
judgment or decree is sought, and the existence of another adequate remedy does
not preclude judgment for declaratory relief where it is appropriate.
c. Has force and effect of final judgment or decree.
III.
Standing
a. Must have a “justiciable” controversy
i. Provisions related to dec judgments are remedial in nature, and are thus
afforded a liberal construction.
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ii. Connotes an existing actual and substantial dispute. Can’t be merely
hypothetical or abstract.
iii. Dispute must involve the legal relations of parties who have real adverse
interests, and upon which the judgment of the court may effectively
operate through a decree of a conclusive character
iv. Π must have legally protectable & tangible interest at stake, and dispute
presented should be of sufficient immediacy & reality to warrant the
issuance of declaratory judgment
b. Face of the pleading MUST show that it is a justiciable controversy
IV.
V.
Relief Available
a. Declaration of rights, status, or other legal relations (1872)
i. Person under deed, will, written contract, or other writing constituting
contract; OR
ii. Person whose rights, status, or other legal relations are affected by a
statute, ordinance, contract or franchise.
b. Contracts
i. Contract may be construed either before or after there has been a breach.
(1873)
c. Statutory Construction
i. Balancing test for determining propriety of declaratory judgments:
1. Π’s interests
2. Interest of state
3. Adversity
ii. Statutes are independent & severable
1. Invalidity of any one does NOT make others invalid
iii. Purpose of such relief: Are to be interpreted & construed so as to
effectuate their general purpose to make uniform the law of those states
which enact them and to harmonize, as far as possible, with federal laws
on declaratory judgments
iv. Ex.—Declaratory judgment was appropriate vehicle for declaration of Π’s
rights to continue receiving vacation & sick leave benefits following
passage of state law purporting to terminate such benefits. Chauvet v. City
of Westwego (p. 428)
d. Supplemental relief (1878)
i. Court may grant further relief based on a declaratory judgment whenever
necessary or proper.
ii. Ex.—Court grants a declaratory judgment. After judgment is rendered,
other side refuses to comply. Court may grant further relief in such a
situation.
Parties
a. Interested Persons Who May Obtain Declaration of Rights (1874)
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i. Person interested as or thru an executor, administrator, trustee, guardian or
other fiduciary, creditor, devisee, legatee, heir, next of kin, in the
administration of a trust or estate of a decedent, infant, lunatic or insolvent
may have a declaration of rights or legal relations in respect thereto:
1. Ascertain any class of creditors, devisee, legatees, heirs, next of
kin
2. Direct executors, administrators, or trustees to do or abstain from
doing any particular act in their fiduciary capacity
3. Determine any question arising in the administration of the estate
or trust, including construction of wills and other writings
b. Mandatory Parties (1880)
i. All persons shall be made parties who have or claim any interest which
would be affected by the declaration
ii. No declaration shall prejudice the rights of persons not made parties to the
proceeding.
VI.
Powers
a. NOT limited or restricted to those listed above (1875)
i. General powers of 1871 may be exercised in any proceeding where such
relief is sought, in which a judgment will terminate a controversy or
remove an uncertainty
b. Court may refuse declaratory judgment where, if rendered, it would not terminate
the controversy or uncertainty (1876)
VII.
Available Defenses
a. NOT a justiciable controversy
i. Not ripe
ii. Asking for an “advisory opinion” rather than a declaration of rights
iii. Diff. w/ exception of prematurity: Exception will fall because the whole
purpose of a declaratory judgment is to get the declaration BEFORE you
do the act you are concerned about incurring liability for
b. Lack of standing: MUST be a party to the controversy
c. No cause of action: has to be a party that is actually impacted, not potentially
impacted
EXTRAORDINARY REMEDIES
CCP 1732(3); 2592; 3781-3785; 3821-3831
I.
Procedure Applicable to HC, M, & QW
a. Filing of Petition (3781)
i. Writ may ONLY be ordered by a court on petition
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b.
c.
d.
e.
II.
1. Even though this is a summary proceeding (which usually begins
with a rule to show cause), because the court needs more facts for
these a petition is required
a. Note: Crawford doesn’t understand this distinction
ii. Order signed by clerk under seal OR by judge without formality
Return date (3782)
i. Shall be assigned for hearing 2-10 days after service of the writ.
ii. May be assigned earlier upon a proper showing
Answer (3783)
i. MUST be filed by the time of the hearing.
ii. Courts have said that there is no requirement for an answer unless you’ve
been served, but IF you file an answer, it must be filed before the hearing
iii. HC requires an answer, M does not.
Hearing (3784)
i. May be held in open court or in chambers, in term or on vacation
ii. Jury trial is NOT available for HC, M, QW, & concursus proceedings
[1732(3)]
Failure to comply (3785)
i. Punishable by contempt.
ii. When a sentence of imprisonment is imposed for contempt, imprisonment
may continue until Δ obeys the writ or judgment.
Civil Habeas Corpus
a. Definition (3821)
i. A writ commanding a person who has another in his custody to produce
him before the court and to state authority for the custody (includes
detention & confinement)
ii. Petition for writ of HC may be filed by person in custody or any person on
his behalf
iii. Often used in child custody disputes
b. Venue (3282)
i. May be brought in parish in which Δ is domiciled or parish where person
is in custody
c. Service of writ
i. Persons authorized to make service (3283)
1. May be served by any person over 21 who is capable of testifying
2. If served by someone other than sheriff, the affidavit of person
making service is prima facie proof of service.
ii. Method of service (3284)
1. Shall be served on party to whom it is addressed or who has the
person in custody.
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2. If personal service can’t be made: service may be had by
attaching the writ to an entrance door of the residence of the party
to be served or to door of the place where the person is in custody.
d. Notice of hearing (3829)
i. When detainee is in custody due to prior court order or at the request of
any person, then reasonable written notice of the HC hearing MUST be
given to the person who provoked prior court order or requested custody.
e. Answer to writ
i. Person required to answer
1. By the time of hearing, person upon whom writ has been served,
whether directed to him or not, MUST file an answer stating
whether he has custody of person named in writ (3825)
ii. If in custody:
1. MUST produce him & state in answer by what authority he holds
the person so detained (3825)
2. If person can’t be brought into court: Must state reasons
therefore in the answer (3827)
iii. If person has been transferred prior to service, the answer MUST state:
1. To whom custody was transferred
2. When transferred
3. By what authority
4. Place of current detention (3826)
f. Judgments
i. BOP
1. On custodian to prove justification of custody
ii. Pendente Lite (3828)
1. If judgment can’t be rendered immediately, court may award
custody to a proper person until rendering
iii. Final (3830)
1. May order person released OR placed in custody of a proper
person
iv. Appeals
1. Effect of Appeal
a. Does NOT suspend execution of judgment ordering the
release of a person or placing him in the custody of another
person (3831)
2. Delay
a. 30 days from:
i. Expiration of 7 day delay for new trial/JNOV if no
application is filed OR
ii. Date of mailing of notice of court’s refusal to grant
new trial/JNOV
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III.
Mandamus
a. Application
i. Used only when there is NO discretion allowed on the part of the public or
corporate official
1. If official has discretion:
a. Mandatory injunction must be used
i. Enjoins official from NOT doing act complained of;
an affirmative duty
b. File ordinary action for mandatory injunction and then get
hearing set for prelim injunction set quickly (see supra)
ii. Classic Example: Rule against the recorder of mortgages to show why he
shouldn’t strike a recorded mortgage
b. Function
i. Writ directing a public officer or corporation (or officer of corp.) to
perform his duties (3861)
1. Public official: Performance of a ministerial duty (NO discretion)
required by law (3863)
2. Former public official or heirs: Delivery of papers & effects of
former office to successor in office (3863)
3. Corporation/corp. officer:
a. Holding an election or other duties required by corp.
charter/bylaws/prescribed by law
b. Recognition of rights of its members or sharefholders
c. Issuance of the writ; answer
i. May be issued in all cases where (3862)
1. Law provides no relief by ordinary means
2. Delay involved in obtaining ordinary relief may cause injustice
3. CANNOT direct public official to spend public monies IF they
certify that it would create a deficit or be in violation of spending
requirements set by the legislature
ii. Answer
1. Do NOT have to file an answer, UNLESS Π chose to request
service of citation, which orders Δ to file an answer or be found in
default. State Citizens Finance v. James (p. 451)
a. Diff. w/ HC: HC requires an answer
iii. Alternative Writ (3865)
1. Writ issues and requires that the Δ do what the Π requests or show
cause why he should not
d. Judgment (3866)
i. Court may render judgment making the writ peremptory (leaving no
opportunity for denial or refusal
IV.
Quo Warranto
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a. Definition (3901)
i. Writ directing an individual to show by what authority be claims or holds
public office, office in a corp.OR
1. Note: If you use the long-arm statute to get jurisdiction in a
summary proceeding, the long-arm appeals delay of 30 days
applies, rather than the shorter delay for appealing a summary
proceeding. Clay v. Clay (p. 452)
ii. Directing corp. to show by what authority it exercises powers
b. Purpose
i. To prevent a usurpation of office or powers
c. Standing
i. Anyone with a real & actual interest
d. Judgment (3902)
i. When the court finds that:
1. A person is holding or claiming office without authority:
a. Shall forbid him from so doing
b. May declare who is entitled to the office
c. May direct an election when necessary
2. Corp. is exceeding its powers
a. Judgment shall prohibit it from doing so
e. QW & Declaratory Judgments; cumulation
i. Can cumulate declaratory action with QW because the court will likely
render the declaratory judgment as part of the QW proceeding
CONCURSUS PROCEEDINGS
CCP 4651-4652
I.
Concursus Proceedings
a. Definition (4651)
i. Proceeding in which 2 or more persons having competing or conflicting
claims to money, property, or mortages or privileges on property are
impleaded and required to assert their respective claims contradictorily
against all other parties to the proceeding
b. Examples
i. Life insurance: where there are competing beneficiaries, even if the
insurance company denies coverage is applicable
ii. Oil company: when there are competing claims to mineral royalties
iii. Liability insurance: when claims exceed coverage limits, BUT must admit
liability to the full extent of the coverage
c. Claimants Who May be Impleaded (4652)
i. Who may be impleaded:
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d.
e.
f.
g.
h.
i.
1. Persons with competing or conflicting claims may be impleaded
even though the person against whom claims are asserted denies
liability in whole or part to any or all claimants & whether or not
their claims or the titles on which the claims depend have a
common origin or are identical or independent of each other
ii. Who CAN’T be impleaded:
1. Claimant whose claim has been prosecuted to judgment
2. Person who is claiming damages for wrongful death or physical
injuries
a. Exception: a casualty insurance company which admits
liability for the full amount of the coverage AND has
deposited the sum in the registry of the court
Venue (4653)
i. Any parish of proper venue under 42 ONLY as to any claimant impleaded,
EXCEPT:
1. If re: immovable, then must be in parish of situs
Petition (4645)
i. Must include:
1. Allegation of the nature of competing claims
2. Prayer that all persons having such claims be required to assert
them contradictorily against all other parties to the proceeding
Service of Process
i. Same as for ordinary proceeding
Answer
i. Delays the same as ordinary proceeding
ii. NO exceptions or responsive pleadings to answer allowed
iii. Failure to answer: Any party may move for an ex parte order limiting the
time for answering (4657)
1. Less than 5 D’s failing to answer: Serve each with order
2. 5 or more D’s fail to answer: Publish (only once) in the parish
where action was filed
3. After order/publishing: Must then answer within 10 days of that
order
4. Still no answer: Precludes Defendant from asserting any claim
against P
Defendants as Plaintiffs (4656)
i. Each D is considered both a P & D as to other parties
Deposit of money with court (4658)
i. With leave of court, P may deposit the money claimed by D’s with court
and which P admits is due to 1 or more of them
ii. When money accrues from time to time, if order so states, P can continue
to deposit as it accrues
iii. After deposit, P is relieved of all liability to D’s
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j. Costs (4659)
i. Deducted from money on deposit
ii. Upon resolution, costs may be awarded to successful claimant against any
other claimant
k. Injunctive relief (4660)
i. Court may grant P injunctive relief, prohibiting D’s from instituting or
prosecuting, in any court of LA or US, any other action to the claim
involved
THE REAL ACTIONS
ACTIONS TO DETERMINE OWNERSHIP OR POSSESSION
CCP 3651-3663; 4651-4662
I.
Introduction; Property Review
a. Generally
i. IMP: You don’t lose your ownership or possession of property; it must be
taken from you
ii. If ownership or possession of immovable property is at issue, there is no
other way to litigate that than through 3651 et seq.
iii. Two Types
1. Petitory actions
2. Possessory actions
ii. Ordinary proceedings
b. Property Review
i. “Possession” Defined
1. Possession is the detention or enjoyment of a corporeal thing,
movable or immovable, that one holds or exercises by himself or
by another who keeps or exercises it in his name
a. Possessor considered provisionally as the owner
ii. Acquiring Possession
1. To acquire, one must intend to possess as owner and take
corporeal possession of the thing
a. One is presumed to intend to possess as owner UNLESS
you begin possession in the name of another
b. Corporeal possession—the exercise of physical acts of use,
detention, or enjoyment over a thing
2. One can acquire possession through another who possesses for
him (e.g., lessor through lessee)
3. Possessing for 1 year gives one a right of possession
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iii. Possession of an Immovable
1. By title: Constructive possession to the limits of title all that is
contiguous
2. Without title: Only what he actually possesses
a. Act of possession must be in keeping with the nature of the
property
iv. Retaining possession
1. Once acquired, possession is retained by intent to possess as
owner, even though corporeal possession has ceased
a. This becomes civil possession
v. Losing possession
1. Lost when:
a. Possessor manifests an intent to abandon
i. Right to possess is lost
b. Possessor is evicted by force or usurpation
i. Right to possess is lost after a year IF possessor
makes no move to recover possession
vi. Acquisitive Rx
1. Defined
a. Possession that is continuous, uninterrupted, peaceable,
public, & unequivocal
2. Immovables
a. GF & just title: 10 years, to the extent of the title
b. BF: 30 years, & extends only to that which has actually
been possessed
3. Movables
a. GF: 3 years, IF possession as owner, in GF, under an act
sufficient to transfer title
b. BF: 10 years if possession as owner only
c. Rules
i. Use possessory action when:
1. Still in possession, but just disturbed and have been in possession
for more than 1 year, use possessory action to prove right to
possess
2. Disturber has been there less than 1 year, use possessory action
because you still have a right to possess
ii. Use petitory action when:
1. If disturbed for more than 1 year, you’ve lost right to possess,
disturber now has the right to possess, so must bring petitory action
a. If you’ve owned for less than 10 years, you lose because
you can’t show ownership by acquisitive Rx
b. If you’ve been there for more than 10 years, you win
because you now own by acquisitive Rx
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II.
a.
b.
c.
d.
e.
f.
Petitory Actions
Purpose
i. To obtain judgment recognizing Π’s ownership
Parties
i. Π claims ownership, but has lost possession of immovable property or
a real right therein, against one who is possessing or claiming ownership
adversely (3651)
1. Can only be an undivided interest or limited to a certain time
period, which has not expired or terminate by an event yet to occur
(3652)
2. Ex.—A buys from C & goes into possession by farming what he
can. Adverse possessor B puts up a fence around a few acres & it
remains for over a year.
a. B has right to possess because he has possessed for over 1
year.
b. A has to file petitory action and prove better title to the
world. Usually done by proving up an earlier title because
few title records go all the way back to original ownership
without breaks.
ii. Δ is in possession or claims ownership adversely
1. Lessee of Δ may be joined as a co-Δ (3652)
Venue (3652)
i. Parish of situs or Δ’s domicile per 80(1), even when Π seeks judgment for
fruits & revenues, & for damages
Burden of Proof in petitory action (3653)
i. To obtain a judgment recognizing his ownership of or real right in
immovable property, Π shall:
1. If Δ is in possession: prove that he has acquired ownership from a
previous owner or by acquisitive Rx
2. If Δ is not in possession: prove a better title than Δ
a. Note: This reversed Pure Oil v. Skinner.
ii. Presumption
1. When titles of the parties are traced to a common author, he is
presumed to be the previous owner
Defenses
i. If 30 years of possession has run, then Δ can file peremptory exception of
30 years Rx
ii. Court doesn’t grant “ownership,” but may grant the exception dismissing
the petitory action
In action for declaratory judgment (3654)
i. The issue is ownership, so the court MUST render judgment in favor of:
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1. Party who would be entitled to possession of the immovable or real
right therein in a possessory action, UNLESS adverse party proves
that he has acquired ownership from a previous owner or by
acquisitive Rx
2. Party who proves better title to immovable or real right therein,
when neither party would be entitled to possession in a possessory
action
g. Examples
i. A buys lot from C, who had never set foot on the land, such that there is
NO tacking of possession from C to A
1. B sets up corporeal possession on a corner of the lot
2. A has to file petitory action and since B is in possession, A has the
BOP to prove a better title as to the world or acquisitive Rx
a. A can dispute that B has possessed for over 1 year (if B has
not, wouldn’t have the “right to possess”)
3. If B has possessed for over a year, then he has the right to possess
ii. B buys corner of lot from X, who actually doesn’t own it. A buys whole
lot from C, except that C never possessed the lot.
1. A would have better title than B
2. If B possessed for over 1 year, then he has the right to possess &
would win
III.
a.
b.
c.
d.
Possessory Action
Purpose
i. To be (3655):
1. Maintained in possession of immovable
2. Maintained in enjoyment of real right
3. Restored to the possession or enjoyment he has been evicted
from
ii. Ownership or title is NOT at issue (3661)
Parties (3656)
i. Π
1. One who possesses for himself an immovable or real right therein
2. Can be a person entitled to use, usufruct, or own the real right
3. CANNOT be a predial servitude lessee because he possesses for
the lessor, not himself
ii. Δ
1. One who caused a disturbance in Π’s possession
Venue (3656)
i. Venue provided for in 80(1), even if Π seeks fruits & revenus of property,
or for damages
Burden of proof (3658)
i. Π must allege & prove:
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1. Possession of immovable or real right at time the disturbance
occurred
2. Π & ancestors in title had such possession quietly & without
interruption for more than 1 year immediately prior to the
disturbance, UNLESS evicted by force or fraud
3. Disturbance was one in fact or law (3659)
a. “Disturbance in fact”:
i. Eviction of any other physical act which prevents
the possessor from enjoying his possession quietly
or which throws any obstacle in the way of that
enjoyment
ii. Must be sufficient to let actual possessor know that
his dominion is seriously being challenged
iii. Possession is NOT interrupted when it is merely
disturbed. Have to be forcefully expelled or
possession is usurped for more than 1 year. Liner
iv. When possession is broken, acquisitive Rx is
interrupted
b. “Disturbance in law”
i. Execution, recordation, registry, or continuing
existence of record of any instrument which asserts
or implies a right of ownership or possession or any
claim or pretension of ownership or right to
possession, EXCEPT in an action or proceeding,
adversely to the possessor of such property or right
4. Possessory action was instituted within 1 year of disturbance
ii. Evidence of ownership or title SHALL NOT be admitted (3661)
1. Exceptions (can be admitted to prove):
a. Possession by a party as owner
b. Extent of possession
c. Length of time in which a party & his ancestors in title
have had possession
2. Violation of this exclusion: triggers a judicial confession of
possession of the Π (3657)
e. Relief which may be granted to a successful Π (3662)
i. Recognition of right to possess
ii. Restoration of possession if he has been evicted
iii. Maintenance of possession if he has been disturbed
iv. If requested, court may also:
1. Order Δ to assert his adverse claims of ownership in a petitory
action within 60 days from the date the judgment becomes
executory or be precluded from ever asserting ownership
2. Award Π damages
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f. Appeals (3662)
i. Suspensive: may be taken within 30 days, with posting of bond
ii. Devolutive: delay reduced to 30 days
IV.
a.
b.
c.
d.
e.
Procedural connection between petitory & possessory actions (3657)
Π is not allowed to:
i. Cumulate or plead petitory & possessory in the alternative
1. Penalty: Waiver of the possessory action
ii. Institute possessory and then, without dismissing it & prior to judgment,
institute a petitory
1. Penalty: Abatement of possessory action
If possessory action Δ asserts his title:
i. Converts possessory to petitory, in which he becomes Π (and thus has
BOP) AND
ii. Judicially confesses Π’s possession
If possessory action Δ brings his own petitory action against possessory Π before
judgment:
i. He judicially confesses possessory Π’s possession
Sequestration (3663)
i. Available in both possesory & petitory actions during their pendency
Injunctive relief (3663)
i. To protect or restore possession from a trespasser, injunctive relief is
available to:
1. Π in possessory action
2. Person who is disturbed in possession in which he & his ancestors
in title have had for more than 1 year, in which he claims
ownership, possession, or enjoyment
THE BOUNDARY ACTION
I.
Boundary Actions
a. Definition
i. An action to fix the boundaries of a property
ii. This is a notarial process before the court
iii. Court appoints surveyors to survey the property (3692)
b. Standing (CC 786)
i. Owner
ii. One who possesses as owner
iii. Usufructuary
iv. Lessee may compel lessor to assert when necessary to protect his interest
(CC 787)
c. Right to compel fixing of boundaries DOES NOT Rx (CC 788)
d. Boundary must be fixed according to (CC 785):
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i. Titles/ownership
ii. Possession if no titles
TRESPASS
I.
Action in trespass
a. Common law
i. An actionable offense
ii. Mere crossing the boundary is all that is required; no damage required
b. Louisiana Law
i. Damage MUST result; no harm in mere crossing
1. Ex.—taking timber/fruits
ii. Valuation varies as to GF or BF
EVICTION
CCP 4701-4705; 4731-4735
I.
General Dispositions
a. Reconduction
i. Written lease has a designated beginning & ending; lease will reconduct
from month-to-month if neither party takes action upon termination
ii. Lease terminates by expiration of its term, action by the lessor,
nonpayment of rent, or for any other reason, and the lessor wishes to
obtain possession of the premises
1. IMP: Must give notice of termination
b. Notice of eviction; termination of right of occupancy
i. Notice to tenant (4701)
1. Written notice required
a. When tenant’s right to occupancy has ceased because of
termination of the lease by expiration of its term, action of
the lessor, non-payment of rent or any other reason, AND
the lessor wants to obtain possession of the premises, lessor
has to give written notice to tenant to vacate.
2. If written notice is waived in the lease: notice to vacate shall
allow at least 5 days to vacate
a. Effect of waiver: Gives lessor the right to immediately
institute eviction proceedings upon termination of lessee’s
right of occupancy
3. If lease has no definite term (i.e. month to month): Notice to
terminate & vacate (not less than 5 days before end of the month)
4. If lease has a definite term: Notice to vacate, not more than 30
days before end of term
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ii. Notice to occupant other than tenant (4702)
1. After purpose for occupancy has ended and owner wishes to evict,
owner must first serve written notice to the occupant which must
allow the occupant 5 days from its delivery to vacate
iii. Notice when whereabouts unknown (4703)
1. When abandoned, closed or whereabouts unknown, notice may be
posted on the door
2. However, this may be inadequate if there is a “mass of humanity”
II.
a.
b.
c.
d.
e.
Procedure
Outline of procedure
i. Terminate the lease
ii. Notice to vacate or waiver of notice
iii. Rule to show cause why possession should not be delivered (4731)
1. If tenant/occupant has failed to comply with notice to vacate or
waived right to notice and has lost right to occupy for any reason,
lessor may cause tenant to be cited summarily by court to show
cause why he should not be ordered to deliver possession to lessee/
owner
2. Rule shall state grounds upon which eviction is sought
Tenant can’t be found and premises are empty
i. After required notice is given, lessor may take possession of premises
without further judicial process, upon a reasonable belief that lessee has
abandoned the premises
ii. Indicia of abandonment include:
1. Cessation of business activity or residential occupancy
2. Returning keys
3. Removal of equipment, furnishings, movables
Trial of the Rule (4732)
i. Court shall make rule returnable (tenant has to show up in court) not less
than 3 days after service, at which time court will try rule and hear
defenses
ii. IF court finds:
1. Lessor is entitle to relief sought
2. OR if tenant fails to answer or appear
a. Court shall order immediate judgment of eviction
iii. If tenant has a defense and fails to answer under oath, signed by tenant,
AND show up for hearing on rule, he can’t appeal
Non-Compliance with Judgment (4733)
i. Tenant must comply with rule to vacate within 24 hours of rendition
ii. If not, then court shall issue warrant immediately, commanding sheriff to
deliver possession of premises to lessor
Execution of warrant of eviction (4734)
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i. In presence of 2 witnesses
ii. Clearing the premises of any property therein
1. Lessor also has sequestration of movables for past due rent
iii. If locked, sheriff can break in to effect convenient entry
f. Appeals (4735)
i. Does NOT suspend execution UNLESS:
1. D answered (rule to show cause) and signed rule under oath
2. Pleading an affirmative defense entitling him to retain possession
3. Appeal has been applied for within 24 hours of judgment of
eviction AND
4. Appeal bond filed within 24 hours of judgment of eviction
ii. Court sets amount of bond, sufficient to protect appellee/lessor against
damages he may suffer as a result of appeal
FAMILY & JUVENILE MATTERS
DIVORCE
CCP 3941-3958
I.
Matters applicable to all divorces
a. Jurisdiction (10)
i. Court otherwise competent under LA laws has jurisdiction over the
following actions:
1. (6) Action to annul marriage if 1 or both spouses are domiciled in
LA
2. (7) Action of divorce, if at time of filing, 1 or both spouses are
domiciled in LA
ii. Presumption
1. (B) If spouse has established & maintained residence in LA for 6
months, there is a rebuttable presumption that he has domicile in
LA in the parish of such residence
b. Venue (CCP 3941)
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i. ONLY In parish where either party is domiciled OR parish of last
matrimonial domicile
ii. Venue in this art. may NOT be waived, and a judgment rendered in either
of these actions by a court of improper venue is an absolute nullity
c. Determination of incidental matters
i. When such matters can be raised (CC 105)
1. In proceeding for divorce or thereafter, either spouse may request
determination of custody, support, injunctive relief, use of
property, etc.
ii. Injunctive relief (3944)
1. Authorizes injunctive relief as to any matters listed in CC 105
2. Irreparable injury need NOT be shown
d. Appeals
i. Divorce & annulment (3942)
1. Effect
a. Suspends execution of judgment re: annulment, divorce, &
partition of community property
b. If your motion is filed timely but judge doesn’t act on it
until time has expired, rule of Traigle is that it is still an
effective appeal.
2. Delay—30 days from either:
a. Expiration of 7 day delay for new trial/JNOV, OR
b. Date of mailing of notice of court’s refusal to grant new
trial/JNOV
ii. Custody, support, & visitation (3943)
1. Same 30 day delays, but NOT suspensive
e. When support or claims for contribution to education are in arrears (3946)
i. Support judgments are NOT executory. Thus, if payment is in arrears,
then:
1. Contradictory motion by party owed (rule to show cause why
amount alleged is not owed) to have amount owed determined &
made executory
2. Court shall render judgment for amount of past due support or
contributions to education & training
II.
“No Fault Divorce”; Living separate & apart prior to rule (CC 102)
a. Application
i. IF uncontested: CC 102 proceeding is a default procedure
b. Procedure
i. File petition for divorce, verified by affidavit, alleging:
1. Jurisdiction &
2. Venue
ii. Service or waiver of service
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c.
d.
e.
f.
g.
1. Note: No answer required from non-filing spouse
iii. Wait 180 days, then EITHER party can file a “Rule to Show Cause”
1. Rule to show cause must allege, by verified petition (3952):
a. Proper service or waiver of original petition
b. 180 days have passed since waiver or service, &
c. Lived separate & apart continuously during the 180 days
d. Note: “Verified”=signed before a notary under oath
2. Service of rule to show cause
a. UNLESS waived, can be served on either Δ, Δ’s attorney,
or Δ’s curator
Nullity (3953):
i. Judgment under CC 102 is absolutely null when:
1. Less than 180 days since service OR execution of written waiver
of service & filing of rule
2. Less than 180 days since the couple commenced living separate &
apart & filing of rule to show cause
3. Jurisdiction or venue are improper
ii. Imprescriptable
1. Nothing prevents a later review of the record for nullity
Action is abandoned IF (3954):
i. Rule is not filed within 2 years of service of original petition OR
execution of waiver
ii. Operative on ex parte motion of either party or any interested party
Evidence of facts in divorce action (3956)
i. Facts entitling moving party to CC 102 divorce may be established by:
1. Petition for divorce
2. Sheriff’s return of service of petition, either showing personal
service on Δ if they were living together at time of filing or return
receipt
3. Rule & affidavit
4. Sheriff’s return of service of rule or waiver of service
5. Affidavit of mover, executed after filing rule, showing:
a. Parties lived separate & apart continuously for 180 days
prior to filing rule &
b. Are still living separate and apart &
c. Mover desires to be divorced
Contesting the action ONLY on the hearing of the rule:
i. Procedure does not comply with the law in terms of dates
ii. Affidavit on living separate & apart is false
iii. Contest service of petition or rule
iv. If you don’t appear at rule & divorce is granted: appellant can appeal
BUT NOT introduce new evidence
Waiver of service (3957)
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i. Service of petition: by written waiver executed after petition is filed
ii. Service of rule: by written waiver executed after rule is filed
h. Voluntary dismissal (3958)
i. Shall be rendered upon joint application of the parties and upon payment
of all costs OR
ii. Upon contradictory motion of the Π.
III.
Ordinary Proceeding; other grounds for divorce (CC 103)
a. Divorce shall be granted on petition of a spouse upon proof that:
i. Have been living separate & apart continuously for 6 months prior to
filing of petition
1. UNLESS there are minor children of the marriage, in which case
they must have lived apart for 1 year (CC 103.1)
ii. Other spouse has committed adultery
iii. Other spouse has committed a felony & sentenced to death or hard labor
b. Getting a Judgment
i. Judgment by Default
1. Can take place in 4 days IF:
a. Δ, by sworn & notarized affidavit
b. Acknowledges (1) living 6 mos. separate and apart & (2)
receipt of certified copy of petition AND
c. Waives:
i. Formal citation
ii. Service of process
iii. Notice
iv. Delays &
v. Appearance at trial
2. Filing on Day 1 amounts to preliminary default, then:
a. Wait 2 days, exclusive of legal holidays per 1702(E),
THEN
b. Hearing (oral motion) if judge orders OR written motion
submitted to court for confirmation of default on Day 4
3. Judgment must be served on Δ by sheriff, personal or
domiciliary
ii. Regular trial
1. Same as for anything else: service & citation, answer, exceptions,
& hearing
ADMINISTRATION OF MINOR’S PROPERTY
I.
Tutorship
a. Explication
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i. Allows one person to administer the property of another. Must do it by the
book
ii. Put the officer properly in charge to manage
iii. Officer has to get proper authority to manage
iv. Files accountings to show management is appropriate
v. Point comes when officer is discharged
b. 4 Kinds of Tutorship
i. By nature: parents
1. CC 4061.1 – Natural tutor can file action for damages based on
delictual obligations without qualifying first
ii. By will: couples appoint another couple
iii. By effect of law
iv. By appointment of judge: dative
c. Process Generally
i. Petition to court to qualify
1. Venue – Typically, the parish of surviving parent (CC 4061)
2. W/ affidavit listing instate relatives & any stepparents
3. Publication of petition
4. Hearing if any opposition filed
ii. Court appointment
iii. Appeal within 30 days, NOT suspensive
iv. Swear an oath (4171)
v. Post security (4131-4137)
vi. Obtain letters
vii. Inventory or SDDL filed
viii.File legal mortgage
ix. Administer as prudent administrator
x. Seek court approval for any sale as being in child’s best interests
II.
Administration of Minor’s Property
a. Parental administration of child’s estate
i. Parents are married: Father is automatically administrator (natural tutor),
but still must qualify
ii. Father mentally incompetent, interdicted, imprisoned, or absentee: Mother
has authority
1. Can get judges permission if father fails or refuses to administer
2. May administer under conditions of laws on voluntary
management of another’s affairs
iii. To settle a lawsuit: Don’t have to qualify but have to follow same
procedure
1. Petition to court asking to settle minor’s personal injury claim in
child’s best interest
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b.
c.
d.
e.
f.
g.
2. Usually filed by insurance company seeking to settle (must compel
parent to qualify
3. Requires court order
Separate property for tutor (4069)
i. In exceptional cases & for good cause, court can appoint a bank or other
as tutor over property only
1. Court’s own motion
2. Tutor’s motion
3. Any interested party can have standing, after contradictory motion
Provisional tutor (4070)
i. Can be appointed quickly to take care of immediate matters
Inventory of minor’s property (4101)
i. To determine what is coming under control of the tutor
ii. Lawyer, family members, and others do inventory & appraisal OR
compile a SSDL in front of a notary
Security (4131-4137)
i. General rule: In the amount of the appraised value
1. Exception: Natural tutor NOT required to post
ii. Alternative: Can record a mortgage in favor of minor, as a 1st lien, in lieu
of security
iii. Natural tutors:
1. Recordation of SDDL creates a legal mortgage in favor of minor
2. Can substitute bond instead of a legal mortgage so that property
can continue to be freely alienated
Undertutor (4201-4206)
i. Oversight of tutor, goes to court to challenge any tutorial action when he
suspects minor’s interests conflict with tutor’s
ii. Appointed at same time as tutor, swears an oath
Removal of tutor
i. Who CAN’T be a tutor: (4231)
1. Younger than 18
2. Interdict or proven mentally incompetent
3. Convicted felon
4. Debtor to minor
5. Adverse party in a suit against a minor
6. Incapable of performing, proven unfit by physical or mental
incapacity or bad moral character
ii. Revocation
1. Of appointment occurs if he fails to qualify within 10 days
iii. Resignation
1. Can be obtained with court authorization IF:
a.Gets appointed to office, service, or occupation that excuses
him
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h.
i.
j.
k.
l.
III.
b.Turns 70
c.Becomes infirm, incapable of discharging duties
iv. Grounds for Removal (Rxs 4 years after minor becomes a major)
1. Most common grounds is failure to file an annual accounting
2. Left state without appointment of agent
3. Mismanagement
General Duties, Powers & Functions
i. Prudent Administrator
1. Takes possession of, preserves, and administers
2. Personally liable for damages resulting from failure to act
ii. Shall exercise judgment & care of prudent men in managing their own
affairs
Procedure for sale of property
i. Anytime tutor wants to change the nature of the property, he MUST seek
court approval
ii. File a petition, detailing exactly what he wants to do and why it is in “best
interests of the minor”
1. Undertutor submits written concucrrence/disagreement
2. Evidentiary hearing
3. Can have adversarial evidence from minor’s other relatives
4. Judge so orders
iii. Always done by private sale
iv. Adjudication to the parent (4361-4371)
Accounting by Tutor
i. Required annually
Foreign Tutor
i. Can come to LA and get qualified by court or get court appointed LA
attorney
ii. Must petition to remove property from the state
Small tutorship
i. For LA property worth less than $20K
ii. No inventory or bond required
Emancipation
a. 4 Ways to do this
i. 1—Marriage
1. Age 16 & married
2. Full emancipation
ii. 2—Notarial act
1. Age 15
2. Allows him to administer affairs (366)
3. Can’t alienate any property that he owns
iii. 3—Judicial declaration (385)
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1. Age 16+
2. Petition
3. Consent of parents
4. Judge signs order, can be in chambers
iv. 4—Emancipation for ill treatment
1. Does NOT require parental consent
2. Must contain proof of ill treatment
b. Requirements when sought through judicial process
i. Minor must be domiciled in LA AND
ii. Must petition the district court in the parish of her domicile
1. Venue CAN’T be waived
INTERDICTION
I.
a.
b.
c.
d.
e.
Interdiction
Generally
i. Puts a curator in office to manage the affairs of the interdict who can’t
handle their own affairs
Petition (4561)
i. Can be done by any person
ii. Must be verified & show with particularity:
1. Name, domici
Venue (4542)
i. Δ’s domicile
ii. Residence if no instate domicile
iii. Physical presence if no residence
Service (4543)
i. Upon Δ:
1. Personal service ONLY
ii. Upon all other named persons
1. Within 3 days of filing petition
2. By certified mail, return receipt requested
3. Noncompliance is sanctionable but not preclusive of judgment
Appointment of attorney (4544)
i. If Δ makes no timely appearance through an attorney , court can appoint
attorney to represent him
1. Can be declined if Δ either retains own attorney or intelligently
and voluntarily waives assistance of counsel
ii. Attorney must personally visit Δ unless excused by court for good cause
1. Failure to do so shall not effect proceeding but may get attorney
sanctioned
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f. Appointment of examiner (4545)
i. Court may appoint examiner with training or experience in the infirmity
alleged
ii. Court may compel Δ to be examined
iii. At least 7 days prior to hearing, examiner MUST provide written report of
exam to court, attys & unrepresented parties
g. Hearing (4547)
i. Summarily and by preference
ii. Δ has right to:
1. Be present unless court has good reason for barring him
2. Present evidence
3. Testify
4. Cross examine witnesses
iii. Judge may hold hearing wherever Δ is located if he can’t get to court
house
iv. May be closed for good cause
v. Court may call its own witnesses and require presence of proposed curator
h. Burden of proof (4548)
i. Upon the petitioner
ii. Clear & convincing evidence
i. Temporary interdiction (4549)
i. If immediate or irreparable injury, loss or damage will result to person or
property of Δ before hearing can be held
ii. Court may order without notice or adversarial proceeding
iii. Prelim. interdiction hearing must be scheduled within 10 days following
ex parte judgment of temp. interdiction
iv. Certain evidentiary requirements
j. Preliminary interdiction (4549)
i. Adversarial hearing within 20 days of signing order scheduling the hearing
1. Within 10 days if there has been a temporary interdiction
ii. At least 3 days before hearing all orders, pleadings & supporting
documents shall be served personally on Δ & his attorney
iii. Court shall appt attorney to represent Δ
k. Judgment of interdiction SHALL (4551):
i. Appoint curator
ii. Appoint undercurator unless not required by law
iii. State curator’s powers commence ONLY upon qualification
iv. Direct clerk to record judgment in conveyance & mortgage records of
parish where judgment rendered
v. In limited interdiction:
1. Curator shall have only those powers necessitated by the interest to
be protected
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2. Shall state that the interdicted retains capacity of a natural person,
except as expressly limited by judgment
vi. Temporary & preliminary interdictions: Shall state a date for termination
l. Modification or termination of interdiction (4554)
i. Upon motion of any person, including interdict, & sua sponte
ii. BOP: Preponderance that order is insufficient or excessive
m. Appeals (4555)
i. Within 30 days
ii. NOT suspensive
II.
Curator
a. Eligible persons (4561)
i. Who CAN’T be:
1. Under 18
2. Interdict themselves
3. Nonresident without agent for SOP
4. Except for good cause:
a. Convicted felon
b. Debtor of interdict
c. Adverse party in suit against interdict
d. Owner/operator/employee of LTC facility where interdict
lives, UNLESS also a relative of interdict
ii. Preference of qualified persons
1. Person designated in writing by interdict while he could reasonably
communicate a preference
2. Spouse
3. Adult child
4. Parent
5. Individual living with Δ for more than 6 months prior to petition
b. Process for appointment
i. Appointed
ii. Takes an oath
iii. Post security
iv. Have an undercurator
v. Letters are issued
vi. Makes an inventory
vii. Same standard of management as a tutor
1. Prudent administrator in handling of own affairs
2. Selling property
a. Petition court
b. Show it is in best interests
c. Get a court order
viii.Post-judgment monitoring & reporting
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c. Removal
i. For good cause
SUCCESSIONS
I.
Opening of Succession
a. Opens with death of de cujus (934)
i. Succession rights are seized immediately upon death
ii. Look for a will
iii. Procedurally, opens with filing of petition (simple possession or
administration)
b. Place of opening
i. ONLY place to open a succession is decedent’s domicile
ii. If out of state, then go to situs of IM property
c. Procedure for testate succession, pg. 25 in Supplement
i. 1—Petition & order for probate
ii. 2—Proces verbal of probate
1. Can be dispensed with if written affidavits only are used to prove
the will
iii. 3—Appoint executor
iv. 4—Then proceed with either simple possession or administration under
the same steps as below for intestate
II.
Simple possession
a. Heirs are entitled IF:
i. All are competent;
ii. Estate is debt free AND
iii. All heirs accept simple possession and
iv. Cs can’t demand administration
b. Testate
i. Petition for notary to search for the will
1. Include:
a. Affidavit of domicile & jurisdiction
b. Right of notary to enter safety deposit box and remove:
i. Any documents purporting to be wills
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ii. Life insurance policies payable to named
beneficiaries
ii. Petition to probate the will
1. 5 year Rx to present a will and then…
c. Proceed as follows with Intestate Succession
i. 1—Petition if needed to appoint a notary to list contents of bank box
1. Attach affidavit of death & jurisdiction
ii. 2—Petition for possession
1. Allege all essential facts & verify petition
2. Affidavit of death & heirship if not already filed
3. Attach sworn descriptive list of assets
4. Attach evidence of payment of inheritance tax
iii. 3—Have judgment of possession signed
1. Prima facie evidence but NOT conclusive of right to the possession
of the estate of the deceased
III.
Administration
a. Testate
i. Petition for notary to search for the will
ii. Petition to probate the will
1. 5 yr Rx to present a will
2. Attempts to annul probated testimony
a. 5 years
b. If withins then BOP on probaters, otherwise BOP on
attacker
b. Intestate Succession
i. 1—Petition for appointment of administrator
1. Court order appointing administrator, his qualification, requiring
filing of sworn detailed descriptive list (SDDL)
ii. 2—File SDDL
iii. 3—File bond & swear oath
iv. 4—Issue letters of administration
v. 5—File tableu of distribution, including:
1. Lists of debts & assets
2. Use tableu as a petition for authority to pay the debts; interrupts Rx
3. Advertise
4. After delays, homologate & pay debts
vi. 6—File inheritance tax return (within 9 months of death) & get receipt
showing payment
vii. 7—Petition for possession, verified
viii.8—Judgment of possession
ix. 9—Final accounting
x. 10—Discharge administrator & cancel bond
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IV.
Judgment of possession
a. Explication (3061)
i. Send surviving spouse into possession of his community ½
ii. Recite delivery of particular legacies if receipts are in record
iii. Recite payment of taxes
iv. Describe all property carefully (especially stocks)
v. Prepare copies to be certified for all stocks, banks, and savings & loan
associations, and other depositories, for automobiles and other parishes
where the decedent owned real estate
b. Effect of judgment of possession
i. Prima facie proof of the relationship of the deceased parties recognized
therein and of their right to possession of the estate of the deceased
c. Timeline after judgment of possession
i. Creditors, including tort victims
1. 3 months after death
a. File privilege on succession property which will affect
virtually all property, to include immovables, whether sold
or not
i. To be effective as against immovables, must be
recorded
b. Follow up with suit to act on privilege & provoke opening
2. 3 months from date of judgment & possession – CCP 3007
a. Cs may demand security for payment
b. If not furnished, Cs can file ex parte motion to have
judgment of possession annulled & ordering administration
(CCP 3008)
3. Any unpaid C may proceed against residuary legatees for
unpaid debts even after privileges have expired, but liability of
legatees is limited
ii. Interruption – CC 3245
1. Rx on obligation interrupted for up to 10 years by formal written
proof of claim:
a. Delivered to succession attorney
b. Filing with court if no rep OR
c. Filing in mortgage records of decedent’s domiciliary parish
if no succession has been opened
2. If succession rep rejects C’s claim, C can sue succession rep
(proper party)
iii. Federal estate taxes
1. 9 months to file inheritance taxes
iv. Attempt to annul probated testament
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1. Must be filed within 5 years (after majority of petitioner with
interest)
2. If filed within 3 months: the burden is on those probating the will.
Thereafter, the burden is on the attacker
d. Actions Against Judgment of Possession
i. Explication
1. Right of unrecognized successor to be recognized and get property
back within 3 years
ii. Rx
1. Must be filed within 2 years from finality of judgment of
possession
iii. Effect
1. Judgment of possession is an appealable judgment
2. Judgment of possession in court of improper venue is a NULL
judgment & a 2002 action does NOT Rx
a. Can be attacked for fraud or ill practices also
b. All the same grounds as other final judgments
V.
a.
b.
c.
d.
VI.
Issues During the Proceedings
Whether to proceed by either simple possession or administration
i. Can’t compel simple possession, 1 heir out of agreement can force
administration
ii. Everyone, including executor, has to agree to simple possession
Selling estate property
i. Reasons to sell include:
1. Paying off estate debts
2. Maintain surviving spouse
3. Allow a more complete division of assets
ii. Fights over whether or not to sell, price, mode of sale
Partial distribution of assets from a partial judgment of possession
i. Need to show grounds for doing so, not just to get rid of property
1. If heir(s) is owner in indivision with decedent and possession is
necessary to deal with property expeditiously
2. Special bequests may also be honored “early”
Removal of administrator
i. May be obtainable ex parte
ii. Executor can’t be kept in position against opposition from heirs
Independent Administrator
a. How to obtain:
i. If provided for in testament, court SHALL issue letters of independent
administration
ii. If no testament, all intestate heirs can request independent administration
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iii. Can also convert an ongoing succession to an independent administration
by request
iv. If there is a usufruct, usufructuary also has to agree
b. Effect
i. Requires NO security
ii. Shall have the powers of a succession rep. without the necessity for delay
for objection, application to or any action in or by the court
iii. Must file an inventory or SDDL and an accounting at the end only, in
conjunction with his DC
COURTS OF LIMITED JURISDICTION
I.
Courts of Limited Jurisdiction
a. Parish & City Courts
i. Amount in Dispute (4842 & 4843)
1. Requirements for different courts
a. Parish: $20K
b. City: $10K
c. New Orleans: $20K
d. Justice of the Peace: up to $5K
2. IMP: Calculation does NOT include interest, court costs, attorney
fees or penalties
ii. Eviction (4844)
1. Jurisdictional amount in dispute requirements depend on the terms
of the lease
iii. Incidental demands
1. When court has jurisdiction over principal demand, may exercise
SMJ over incidental demands REGARDLESS of amount in
controversy
a. Court may transfer entire action to JDC
b. If incidental demand is compulsory reconventional demand
& exceeds the jurisdictional limit, court MUST transfer
iv. Subject matter exclusions
1. Immovable property
2. Divorce & support
3. Successions
4. Actions against state or local governments
5. Tutorship, interdiction, & curatorship
v. Personal jurisdiction
1. Same as in JDC
vi. Quasi-in rem & executory process
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1. Acceptable as long as amount in dispute is met
vii. Venue
1. Restricted to geographical bounds and then regular venue
provisions
b. No Jury Trials in Parish or City Court, but Δ may transfer to JDC in order to
have one (4871)
c. Procedure (4901)
i. Written pleadings, same as in JDC
ii. Citation & SOP required
iii. 10 day delay for answer or automatic default, 15 days if service on Sec. of
State
iv. Default judgments require no prelim. default
v. Need notice of judgment if not served personally (4905)
vi. New trial delay is 3 days, exclusive of legal holidays
d. Appeals
i. Appeal is to the Court of Appeal, same as from JDC
ii. Appellate delay only 10 days from judgment or from 1913 service of
notice, or from action on new trial
iii. Procedure is the same as from JDC
La. Civ. Pro. II Outline: Crawford-Spring 2011
95