2001 Final Exam
1.
You represent Bank of East Baton Rouge Parish. The bank wants to collect on a
$100,000 defaulted real estate loan made to Johnny Dollar. Dollar now lives in Atlanta.
The banker delivers to you a mortgage and promissory note describing the property and
the amount of the loan. The property is located in East Baton Rouge Parish. During your
search of the public records, you discover that Dollar sold the property to JD Penny.
Penny has made substantial improvements to the property. The banker tells you to
collect all that is owed to the bank. Advise the banker as to
a. The type of proceedings available to him.
1. Executory process proceedings are available if the bank mortgage
contains a confession of judgment and an authentic act of the mortgage.
2. Ordinary process may also be used if there is no confession of
judgment.
b. Any and all requirements regarding the form of the documents, if any.
A petition must be filed with a prayer for the seizure and sale of the
property affected by the mortgage. It should also include the note evidencing
the obligation secured by the mortgage, as well as the authentic act of
mortgage and the confession of judgment.
c. Who is the property party to sue? Include any and all rights of the defendant.
Dollar is to be sued even though he sold the property because the
mortgage contract was bound by him.
d. Discuss the procedure to affect seizure and sale, if applicable under this
process
First the creditor must have authentic act importing a confession of
judgment on the mortgages property.
The creditor should then file a petition for exceutory process praying
for the seizure and sale of the property affected by the mortgage or privilege
with the instrument evidencing the obligation and file a writ of sequestration
because the bank has an interest in the property.
If the creditor is entitled, the court shall order the issuance of a writ of
seizure and sale commanding the sheriff to seize and sell the property
affected by the mortgage or privilege, as prayed for according to law.
Before issuing the writ of seizure and sale, the clerk shall issue a
demand for payment on the debtor for the payment of the amount due and
all costs of court. The demand shall notify the debtor that in default of
payment within three days exclusive of legal holidays, a writ of seizure and
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sale will be issued and the property will sold according to law, unless this
notice for demand of payment is waived as it often is.
After the three days the sheriff will seize the property affected by the
mortgage upon receiving the writ and he must serve notice on the debtor and
all Mennonite persons and all persons who have requested service under
13:3886.
After giving notice the sheriff shall wait three before advertising.
The sheriff after seizure will advertise the sale. Movable must be
given one ad at least 10 days before the sale. Immovable must be given two
ads, one at 30 days before the sale and another not earlier than 7 days before
the sale nor 1 day before.
Unless the appraisal is waived in the mortgage, not less than 7 days
exclusive of legal holidays before the sale of the seized property, the sheriff
shall serve notice on the debtor and seizing creditor directing each to name
an appraiser. Each must notify the sheriff at lest four days before the sale of
their appraiser. The appraisal of the creditor and debtor shall be delivered
to the sheriff at least two days prior to the sale.
Judicial sale then takes place. Adjudication transfers to the purchaser
all the rights and claims of the judgment debtor.
Within 15 days after adjudication, the sheriff shall pass an act of sale
to the purchaser and records it.
The sheriff shall then make a signed return of the writ to the clerk
who issued it showing that all formalities have been complied with.
If not sold – re-advertise
Prescription – no action may be instituted to set aside or annul the
judicial sale of the immovable property.
e. What, if anything, must be done in order to protect the bank’s right to collect
the entire debt.
The property must be appraised prior to sale unless this has been
waived in the act of the mortgage. If there is no appraisal, the creditor may
not obtain a deficiency judgment for any amount still owed that is not
covered by the sale of the property.
f. Explain any rights owed to Penny and what remedies Penny may seek
Penny is owed Mennonite notice of the seizure and sale as he is noted
in the property records as being the owner and is reasonably ascertained. He
may file a TRO and injunction to block the seizure. He can also
suspensively appeal the order of the seizure/sale.
g. Is there anything that Penny must do? If so, what?
He can intervene in proceedings to claim his interest or privilege on
the property to share in the distribution of the proceeds of the sale.
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2.
You have been retained by Payless Insurance Company to represent them in an
auto accident case. Payless is the auto liability insurer for Axle Foley. It appears that on
the night of June 1, 2000, Foley, acting as a good Samaritan, stopped on Airline Highway
in East Baton Rouge to offer a ride to a person in need of transportation. As Foley
continued south on Airline, he was distracted by his companion. This distraction caused
Foley to lose control of the car and crash into the rear of a gasoline truck. The truck
veered out of control, into the oncoming traffic, where it struck several cars and then
exploded. Five people were fatally injured and several others were paralyzed. Foley has
a 10/20 policy on his car. All police reports say that Foley caused the accident. The
insurance company seeks your advice as to a recommended course of action. Fully
explain your answer to include the following:
a. What, if any, action would you take on behalf of your client?
File a concursus to have all injured parties assert their claims against
all other parties in the proceeding.
b. Where, if any, would you begin any action?
A concursus may be brought in any parish of proper venue under
Article 42, as to any claimant impleaded therein.
c. What, if any, pleading would you file?
A petition for the concursus will be filed alleging the nature of the
competing claims and will include a prayer that all of the persons having
such claims be required to assert their claims contradictorily against all
other parties to the proceeding. Further, the proceeds of the insurance policy
will need to be deposited in the registry of the court.
d. Who, if anyone, would be made parties and in what capacity?
The parties named would be any party claiming damages against the
insurance company. They would all be named as a plaintiff and as a
defendant with respect to all other parties.
3.
Jack and John own a small tract of land in the City of Sulphur, in Calcasieu Parish
in indivision. Lately, the brothers have had numerous differences of opinion regarding
the management of this property. They want to end their joint ownership of the property
but the brothers simply cannot agree on a method for accomplishing that result. Jack
comes to you for advice and asks you to explain to him the options that are available for
ending the indivision ownership of the land. He tells you that another brother is also a
co-owner, but they have not heard from him in 20 years. The last they heard of him was
that he was doing missionary work in the jungles of Peru. He also tells you that they
have a sister who is also the co-owner, but that she is a resident of Happy Hollow
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Hospital in Jackson, Louisiana. He also states that she cannot see, hear or speak. Please
advise Jack.
Jack may file for a judicial partition. This action must be brought where the
immovable property is located, here in Calcasieu Parish. Jack has two issues to
face: first one of his brothers is missing and he is therefore considered to be an
absentee; and second, is that sister is not able to manage her affairs. Apparently she
is an interdict or needs to be interdicted to have a curator protect her interest.
Because Jack’s brother is an absentee the partition is to be made by licitation, which
means that the sale shall be conducted at public auction, after the advertisements
required for judicial sales. All counsel of record, including curators for interdicts
and attorneys appointed to represent an absentee and persons appearing in proper
person shall be given notice.
The petition for the partition of the property in which an absentee owns an
interest shall allege the facts showing that an absent and unrepresented defendant is
an absentee, it shall describe the property sought to be partitioned and allege the
ownership interests thereof, and shall be supported by affidavit that such facts are
true.
Notice of the institution of the proceedings shall be published once in the
parish where the partition is taking place. The publication shall set forth the title
and docket number of the proceeding the name and address of the court, a
description of the property to be partitioned, and shall notify the absent defendant
that the plaintiff is seeking to have the property partitioned by licitation, and the
absentee has 15 days from the date of publication to answer.
If no answer from the absentee, the partition is perfected and the award of
the absentee shall be deposited with the court. Either the curator or legal
representative for the interdict shall receive the funds for the interdict.
4.
You have been approached by John Doe to represent his nephew, a minor, was
injured in an automobile accident. In the same accident, the nephew’s parents were
killed. Almost a year has passed since the accident and no action has been taken in the
matter. Advise Doe as to any and all proceedings to be undertaken to protect the minor’s
rights and property.
Also discuss, in detail, any and all appointments that may be made; any
disqualification and priority of appointment to be considered; whether any security is
required and if so, what amount; any fiduciary duties and responsibilities of the parties.
A petition for the appointment of a tutor must be filed in the district where
the minor is domiciled. Then to protect the interest of the minor, the uncle may
apply to the court, or the court on its own motion may appoint a qualified person as
a provisional tutor to preserve the minor’s property interest. A provisional tutor
shall take an oath to discharge faithfully his duties as determined by the court as
adequate protection. The provisional tutor shall take an inventory prepare a
detailed description of the minor’s and furnish security.
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If the uncle or anyone else would like to qualify as tutor they must meet
certain qualifications. No person shall be appointed who is under eighteen;
interdicted or mentally incompetent; a convicted felon; indebted to the minor;
unless he discharges the debt prior to appointment; adverse party to a suit to which
the minor is a party; or a person proven incapable of performing the duties.
The types of tutors are a natural tutor (a surviving parent); a tutor by will
(nomination in will, or authentic act); a legal tutor (appointed by the court among
relatives); and a dative tutor (where the minor has no relatives or parents).
The duties and responsibilities of a tutor are to take an oath to discharge his
duties faithfully, cause an inventory to be taken or a detailed list to be prepared by a
notary, and furnish security. The tutor must be responsible for the custody and
care of the minor, make sure he is properly reared and educated, he should take
possession of, preserve, and administer the minor’s property, shall enforce
obligations and represent the minor in civil matters. He cannot contract with the
minor and acts in his own name. The court when appointing a tutor shall appoint an
undertutor to concur or not concur in action suggested by the tutor.
5.
You represent John Doe, a tenant of Tumbling Towers Apartments in Baton
Rouge. Doe hands you a letter from the apartment manager which is a notice to vacate.
Doe also hands you a copy of a six month lease he signed with Tumbling Towers two
months ago. Doe tells you that he and the manager are not on good terms because he has
complained repeatedly about his roach-infested apartment which is in a state of disrepair.
Doe paid only a portion of the rent on the first of the month and withheld a large
percentage of the rent in order to pay for pest extermination services and repairs. Doe
also tells you that he has been visiting relatives in Alabama for two weeks and upon his
return he found the notice to vacate and a rule to show cause tacked to his door. Doe
claims that he advised the manager that he would be out of town for two weeks. The
manager is attempting to evict Doe for failure to pay rent.
a. Advise Doe as to this judicial process and recommend a course of action
This judicial process is called eviction. When a lessee’s right to
occupancy ceases because of termination of the lease by expiration of its
term, action by the lessor, non-payment of rent, or any other reason and the
lessor wishes to obtain possession of the premises, the lessor or his agent shall
cause written notice to vacate the premises to be delivered to the lessee not
less than five days from the date of notice. When the lease has a term and the
lessor simply wants to terminate the lease, notice to vacate shall allow the
lessee not less than five days from the date of its delivery, but not more than
thirty days before the expiration of the term to vacate the leased premises. If
the lessee’s whereabouts are unknown, notices and pleadings may be
attached to the door. If the lessee fails to comply or has waived his right to
notice to vacate, the lessor will bring a rule to show cause, cited summarily
and stating the grounds for eviction and why he should not be delivered
possession. The lessee will be given notice of the rule. The court shall make
the rule not earlier than the third day after service. If the court finds that
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owner is entitled to relief sought, or the lessee failed to answer or appear the
court shall render judgment of eviction within 24 hours after its rendition.
The court shall issue a warrant to direct the sheriff to take possession and
deliver it to the owner. The sheriff shall execute the warrant in the presence
of two witnesses.
b. Assume Doe has a defense. How should he proceed and why?
If the defendant answered the rule either through a written answer or
personal appearance and the court renders judgment of eviction, then he
may apply for a suspensive appeal within 24 hours if an appeal bond is filed.
The bond is to cover all damages appellee may suffer.
c. Doe claims that he was not given proper notice. Please advise him.
If Doe’s lease contained a waiver of notice, he has no defense to notice.
Doe also must be given 5 days notice. However, Doe was out of town. In the
event that the whereabouts of the lessee are not known, all notices, pleadings
and orders required to be served may be attached to the door of the premises
and will have the same effect as personal service on the lessee. In this case, it
appears that notice was proper.
d. Doe wants to know, what if he just moved without telling the manager?
The lessor will have an interest in the personal possession of Doe that
had been in the apartment, even if they have been removed. This interest
will allow him to seize/sell those items to satisfy the debt owed to the lessor.
6.
Succession question – not on final.
7.
The trial court imposed a preliminary injunction in favor of plaintiff and against
defendant require defendant to make payments under the terms of a contract between the
parties pending the outcome of litigation concerning the validity of the contract. Prior to
imposing the preliminary injunction, the trial court held a hearing in which the judge
allowed the attorneys representing the parties to present arguments, but did not admit
evidence. According to the judgment, the trial judge considered “the pleadings, the
argument of counsel, and the law” in reaching his decision. You have been asked by
defendant to appeal the judgment imposing the preliminary injunction. Please explain in
detail the argument that you intend to present to the appellate court.
I would argue that the trial court erred in not allowing the presentation of
evidence because the injunction imposed was actually a mandatory injunction.
Mandatory injunctions are those which “order the doing of something”, for
example, making payments to a contract. Mandatory injunctions have the same
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basic effect as permanent injunctions and therefore, may not be issued on merely a
prima facie showing that the party seeking the injunction can prove the necessary
elements. Instead the party seeking a mandatory preliminary injunction must show
by a preponderance of the evidence at an evidentiary hearing that he is entitled to
the preliminary injunction. A mandatory injunction may not be issued on a hearing
for a preliminary injunction.
A 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 to the fact that
he is entitled to the injunction.
In the present case the hearing held by the trial court fell short of the
procedural requirements because the parties were prohibited from presenting any
evidence, and the mandatory preliminary injunction was issues on the basis of the
pleadings and argument of counsel. Because the trial court failed to hold a full trial
on the merits, the injunction was improperly imposed.
8.
You have just obtained a judgment in East Baton Rouge Parish against a debtor
for the payment of $25,000 to your client. The time for appealing the judgment has run.
Your client wants you to execute the judgment. You know that the judgment debtor is
employed a Georgia Pacific. You also know that he owns an automobile but you are
unsure as to what other assets he possesses. Judgment Debtor is also married. Can you
execute on the judgment at this point. If so, what steps, if any, can you take to determine
what other assets he possesses and to otherwise execute on the judgment. Explain fully
describing each step in the process and explaining whether there is any property owned
by debtor which cannot be executed upon.
The first action that should have taken place is to record the judgment. This
recordation primes all other creditors and creates a judicial lien against the
judgment debtor. Recording the judgment does not begin the execution process.
In order to find out what property and assets the judgment debtor has, the
judgment creditor may examine the judgment debtor his books, papers, documents
or any other matter relating to his property, requiring him to disclose his assets.
The judgment creditor may also examine any third party. Here, the examining the
wife would aid in the process or the creditor may use discovery to get the deposition
of any third party to find out what assets the judgment debtor has. To examine the
judgment debtor, the judgment creditor must file an ex parte written motion for
examination of the judgment, including any request to bring his papers or any
documents, in the court which rendered the money judgment. Next, the court will
order the judgment debtor to appear in court for examination not less than five days
from the service of the motion and the order. The judgment debtor must appear
and is questioned under oath. Failure to appear is punishable by contempt. The
court costs associated with examination shall be taxed against the judgment debtor
unless the court determines that examination was unnecessary and tacks costs
against the judgment creditor.
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Writ of FiFa
If the judgment creditor finds that the judgment debtor has property he may
execute his money judgment by a writ of fieri facis directing the sale and seizure of
the property of the judgment debtor. This process may only be executed after the
time delays for a new trial or Judgment Not Withstanding the Verdict (seven days
exclusive of legal holidays after the sheriff has served or the clerk has mailed notice
of the signing of the final judgment) and the time delays for a suspensive appeal (30
days after time elapses for new trial or JNOV) have expired.
The judgment creditor must file a request with the clerk to issue a writ of
fieri facis directing the sheriff to seize the property of the judgment debtor. It must
have the clerk’s signature, the date, and the seal.
The sheriff shall execute the writ, seize the property and make a return to the
clerk. The sheriff may seize anytime within one year.
Upon seizure of the property, the sheriff shall serve judicial notice on the
judgment debtor and all others who may have requested service of the pending
procedure under art. 3751, notice of lis pendens that the property will be sold. The
Sheriff will also serve Mennonite notice on those persons who are easily
ascertainable. The Sheriff will also file with the recorder of mortgages the title and
debt and record in the Sheriff Seizure book.
The sheriff must wait three days after notice of seizure before advertising the
property.
The sheriff will next order the advertisement of the property. Immovable
property shall be advertised twice. First at least 30 days before the sale and the
second at least 7 day but not less that one day before the sale. Movable property
shall be advertised one time at least 10 days before the sale. The advertisement tells
what property is to be sold and when sale should take place.
This property must next be appraised, this may not be waived.
The sheriff will notify the judgment debtor and the judgment creditor not
less that seven days exclusive of legal holidays, before the sale to appoint appraisers.
The JD and JC must notify the sheriff of the appraiser at least four days before the
sale. The appraisals must be delivered to the sheriff at least two days before the
sale.
Judicial sale then takes place. The property must be sold for at least two
thirds of the appraised value. If the property is not two thirds or does not sell it
shall be readvertised and sold for whatever it shall bring. The sheriff shall read the
property description and mortgage certificate and anything else requires by law.
The property shall be sold subject to any security liens. Anyone may purchase the
property including the judgment debtor.
The sheriff then prepares the sale and records it within 15 days after sale.
The sheriff will make a signed return to the clerk who issued the writ
showing that all formalities have been complied with.
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Garnishment
After judgment has been rendered and a writ of fieri facis has been issued
the judgment creditor may cause a third person to be cited as a garnishee. A
garnishee has property of the judgment such as wages and bank accounts.
The judgment creditor must file a petition for garnishment where the
garnishee may be sued under article 42 or 77.
The sheriff shall then serve a garnishment packet on the garnishee, which
included citation, petition, interrogatories, notice of seizure, writ of fifa, statement of
the sum due and the judgment.
The garnishee has 15 days from the date of service to answer interrogatories.
Failure of the garnishee to answer is prima facie proof the garnishee has the
property or is indebted the to judgment debtor and the judgment creditor may
proceed by contradictory motion for a hearing seeking judgment pro confesso
against the garnishee for the unpaid judgment and can seek attorney fees. **(If a
State Agency is a garnishee, it is afforded more protection if it does not answer. The
Agency must be given notice of the filing of the contradictory motion 15 days from
filing.)**
If the garnishee answers the clerk will notify the judgment creator. The
judgment creditor may challenge the answers to the interrogatories by traversing by
filing a contradictory motion within 15 days of service of the answers.
If the garnishee admits in his answer that he has the judgment debtors property or
is indebted to him, the Court shall order the garnishee to deliver the property to pay
the indebtedness to the sheriff when due.
If the wages are garnished, 75% of the judgment debtor’s disposable
earnings are exempt. Disposable earnings means that part of the earnings of any
individual remaining after the deduction from those earnings of any amounts
required by law to be withheld and which amounts are reasonable and are being
deducted in the usual course of business at the time the garnishment is served upon
the employer.
a. Include in your answer all time delays
Included in above
b. Is there any remedy available to the judgment debtor if the sheriff’s sale does
not proceed according to law?
Debtor may file for injunctive relief if the sale is contrary to law.
c. What if judgment debtor is a homeowner, then what?
Cannot take his home as it is exempt under 13:3881.
d. What if judgment debtor is unemployed?
?? – can’t garnish wages??
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9.
You have been retained by a judgment creditor from the State of Mississippi who
has a judgment for $10,000 awarded by a Mississippi court. The defendant is now
domiciled in Louisiana. The creditor wants you to collect the judgment. Explain, in
detail, the proceedings, if any, you will undertake to collect the judgment.
There are two ways that a foreign judgment may be enforced:
1. A judgment creditor may bring an ordinary proceeding against the
judgment debtor in proper La court to have the foreign judgment made executory
by filing a petition accompanied by a duly authenticated copy of the judgment
sought to be made executory.
2. A judgment creditor may also have the foreign judgment recognized
through the Enforcement of Foreign Judgment Act. This action is a quicker
solution for the creditor. A judgment creditor must have an authenticated copy of a
foreign judgment annexed to and filed with an ex parte petition praying that the
judgment be made executory in a court of this state. The prayer in the petition
simply requests that the foreign judgment be made executory in a Louisiana court.
The judgment creditor must also file an affidavit setting forth the name and last
know address of the judgment debtor and judgment creditor. The clerk will then
send notice by certified mail to the judgment debtor including name and address of
the judgment creditor and his attorney. The judgment creditor must wait 30 days
after mailing to execute the foreign judgment.
a. Are there any defenses available to the judgment debtor. If so, what? Explain.
The judgment debtor may file a stay or an appeal. His only defense is to
claim extrinsic fraud, which is a judgment obtained by fraudulent means, for
example the plaintiff prevented the setting up of a proper defense.
10.
You have obtained a writ of sequestration directing the Sheriff of Avoyelles
Parish to seize Debtor’s automobile, located in Avoyelles. Your client has a chattel
mortgage on the automobile, securing Debtor’s debt to your client. The debt is in default.
The ground relied upon for issuance for the writ is the affidavit your client submitted
with the petition that she was informed by Debtor that he intended to move to California
with the automobile without paying the debt. Security for the writ of sequestration as
required by law has been furnished. The Sheriff refuses to execute the writ of
sequestration because he knows the Debtor and is convinced that the Debtor does not
intend to move to California or otherwise leave the parish with the automobile and
because he believes the writ of sequestration is not valid. The sheriff is adamant in his
refusal.
Advise your client as to what action he should take. Include in your answer the
procedural device to file and the time delays.
I would file for a writ of mandamus asking the court to directing the sheriff
to perform his ministerial duties. The court shall assign a hearing not less than two,
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or more than ten days after the service of the writ. A written answer shall be filed
not later than the time fixed for a hearing. If the court finds that a delay in seizing
the automobile may cause an injustice, it may order the issuance an alternative writ,
directing the sheriff to perform the act or show cause to the contrary. If the sheriff
fails to comply with the mandamus, I would file a rule to show cause why the sheriff
should not be found guilty of contempt and punished accordingly for willful
disobedience of a court order.
2000 Final Exam
1.
Same as # 5 on 2001
2.
Same as # 1 on 2001
3.
John Dillenger, a non-resident, owns property in East Baton Rouge Parish. Bank
Two, a Mississippi bank, contacts you to retain your services as a lawyer. Bank Two
tells you that it loaned money to Dillenger and now he is in default. They also tell you
about Dillenger’s property in East Baton Rouge Parish. Bank Two wants you collect the
debt owed by Dillenger.
Please explain each step you must take, including where the action, if any, must
be filed, in order to initiate and maintain the action, if any, against Dillenger. Also,
specify against whom or what the various proceedings must be initiated.
The first step would be to obtain a judgment in Mississippi as the contract
originated in Mississippi. From that point, I would attempt to enforce the judgment
in Louisiana. There are two ways that a foreign judgment may be enforced:
1. A judgment creditor may bring an ordinary proceeding against the
judgment debtor in proper La court to have the foreign judgment made executory
by filing a petition accompanied by a duly authenticated copy of the judgment
sought to be made executory.
2. A judgment creditor may also have the foreign judgment recognized
through the Enforcement of Foreign Judgment Act. This action is a quicker
solution for the creditor. A judgment creditor must have an authenticated copy of a
foreign judgment annexed to and filed with an ex parte petition praying that the
judgment be made executory in a court of this state. The prayer in the petition
simply requests that the foreign judgment be made executory in a Louisiana court.
The judgment creditor must also file an affidavit setting forth the name and last
know address of the judgment debtor and judgment creditor. The clerk will then
send notice by certified mail to the judgment debtor including name and address of
the judgment creditor and his attorney. The judgment creditor must wait 30 days
after mailing to execute the foreign judgment.
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What, if any, defenses may Dillenger raise to this action?
The judgment debtor may file a stay or an appeal. His only defense is to
claim extrinsic fraud, which is a judgment obtained by fraudulent means, for
example the plaintiff prevented the setting up of a proper defense.
4.
On Friday, the residents of Wedgewood subdivision learned that a company
named Spilco had been dumping materials on property adjacent to the subdivision.
Lately, area residents have been complaining of headaches, nausea and irritation of the
eyes. It is believed that this material is the cause of the ailments. You have been retained
by a member of the subdivision to take action. Advise as to what action you would take
against Spilco and why? How would you proceed.
I would first file for a temporary restraining order. To obtain a TRO an
applicant must show (1) that it clearly appears from specific facts shown by verified
petition or by a supporting affidavit immediate and irreparable injury, loss, or
damage, will result to him before the adverse party or his attorney can be heard in
opposition; and (2) that his attorney certified to the court in writing the efforts
which have been made to give notice or the reasons supporting your claim that
notice should not be required.
A TRO shall be endorsed with the date and hour of issuance; shall be filed in
the clerk’s office and entered of record; and shall state why the order was granted
without notice and hearing.
Because a TRO expires it will be necessary to also file for a preliminary
injunction when applying for the TRO. A TRO or preliminary injunction shall not
issue unless the applicant furnishes security fixed by the court.
An order issuing any injunction shall describe in reasonable detail the acts
sought to be restrained.
An interested party may move for dissolution of a TRO or preliminary
injunction within two days notice to the adverse party.
A court may allow damages for wrongful issuance of a TRO or preliminary
injunction. Disobedience of an injunction is punishable by contempt.
Also, please discuss any notice requirements and time delays.
For a TRO, it is filed ex-parte and there is no notice requirement. It expires
by its terms, not to exceed 10 days. A preliminary injunction requires notice to the
adverse party and a hearing before it may be issued. The hearing must be
scheduled not less than 2, nor more than 10 days from the service of notice. A
permanent injunction may be issues after a full trial on the merits.
Is there an appellate process for these proceedings? If so, what?
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There are no appeals from a TRO. Appeals from a preliminary injunction
may be taken within 15 days of written judgment. Appeals from a permanent
injunction shall follow the normal rules for appeal.
5.
In 1985, seven investors bought 51.75 acres of land in Pointe Coupee Parish.
Five of the investors live in East Baton Rouge and have decided to divide their interests.
Two investors live out of state and cannot be located. You have been retained by the five
investors as legal counsel in this matter. Advise your clients as to the proceedings to be
implemented and where.
Include in your answer any notice requirements.
The client may file for a judicial partition. This action must be brought
where the immovable property is located, here Pointe Coupee Parish. The five
investors have an issue to face; two of the investors live out-of-state and therefore,
may be considered to be an absentee. Because the two other investors are absentees
the partition is to be made by licitation, which means that the sale shall be
conducted at public auction, after the advertisements required for judicial sales. All
counsel of record, including curators for interdicts and attorneys appointed to
represent an absentee and persons appearing in proper person shall be given notice.
The petition for the partition of the property in which an absentee owns an interest
shall allege the facts showing that an absent and unrepresented defendant is an
absentee, it shall describe the property sought to be partitioned and allege the
ownership interests thereof, and shall be supported by affidavit that such facts are
true.
Notice of the institution of the proceedings shall be published once in the
parish where the partition is taking place. The publication shall set forth the title
and docket number of the proceeding the name and address of the court, a
description of the property to be partitioned, and shall notify the absent defendant
that the plaintiff is seeking to have the property partitioned by licitation, and the
absentee has 15 days from the date of publication to answer.
If no answer from the absentee, the partition is perfected and the award of
the absentee shall be deposited with the court.
6.
Same as # 4 on 2001
7.
Same as # 8 on 2001
8.
Same as # 10 on 2001
9.
Elian Gonzales, domiciled in East Baton Rouge Parish, is a 23 year old who
suffers from severe multiple sclerosis, obsessive-compulsive disorder and autism. He is
completely incapable of managing his own affairs. His mother and father have died and
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he is the beneficiary of his father’s insurance policy. Lazaro Gonzales, the uncle of
Elian, wants to take the steps necessary for him to gain control over his nephew’s
financial affairs and to be authorized to manage them. Elian now lives with Lazaro in
Little Baton Rouge Parish. Lazaro has hired you as his attorney.
a. What must you do in order to satisfy Lazaro’s wishes?
Lazaro must file a petition to have Elian interdicted in the district
court of East Baton Rouge Parish because that is where Elian is domiciled.
Lazaro may bring this action because is Elian’s uncle. The petition filed by
Lazaro shall be verified and set forth the following:
(1) The name, domicile, age, and current address of the petitioner and
his relationship to the defendant.
(2) The name, domicile, age, and current address of the defendant the
place the petitioner proposes the defendant will reside if the relief sought in
the petition is awarded.
(3) The reasons why interdiction is necessary, including a brief
description of the nature and extent of the alleged infirmities of the
defendant.
(4) If full interdiction is requested, the reasons why limited
interdiction is inappropriate.
(5) If limited interdiction is requested, the capacity sought to be
removed from the limited interdict, and the powers sought to be conferred
upon the limited curator.
(6) The name and address of the spouse of the defendant
(7) The name and address of the adult children of the defendant or, if
he has none, of his parents or siblings or, if he has none, of his nearest adult
relative.
(8) The name and address of any legal representative of defendant
(9) The name, domicile, age, education, and current address of the
proposed curator, and the reasons why the proposed curator should be
appointed
(10) The name, domicile, age, education, and current address of the
proposed curator, and the reasons why the proposed curator should be
appointed
The defendant should receive person service of the proceedings and if
he makes no appearance through an attorney the after the delay for
answering shall appoint an attorney to whom citation and petition shall be
filed. The judge may interrogate the defendant and may appoint an expert to
examine the defendant and make a report under oath as to his condition.
Within 30 days after the judgment of interdiction the court shall appoint a
curator for the person interdicted.
The petition shall prove by clear and convincing evidence all the facts
justifying interdiction.
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b. What if Elian has demonstrated that he can manage his own financial affairs,
even though he is physically disabled. Please advise.
The court will likely not have Elian interdicted or will limit the
interdiction. Interdiction is a harsh remedy and must be supported by a
showing that the person to be interdicted is mentally incapable of
administering his or her estate and unable to take care of his or her person.
A limited interdiction may be imposed by the court if it finds that both of the
above are not completely met.
10.
Discuss and explain the following:
a. Revival of judgments
A money judgment may be revived any time before it prescribes, 10
years by an interested party in an ordinary proceeding by petition and
citation brought in the court where the judgment was rendered and a new
judgment reviving the old shall be rendered unless the defendant shows good
cause.
b. Quo Warranto
This is a writ directing an individual to show by what authority he
claims or holds office, or office in a corporation, or directing a corporation to
show by what authority it exercises certain powers. The purpose is to
prevent usurpation of office or powers. If the court finds a person is holding
authority without actual authority it shall forbid him to not to do so. Writ
may be ordered by the court only on petition. It shall be assigned for hearing
not less that 2 or more that 10 days after the service of the writ. Written
answer shall be filed not later than the time fixed for hearing. Failure to
comply is punishable by contempt.
c. Habeas Corpus
This is a writ commanding a person who has another in his custody to
produce him before the court and state the authority for custody. The venue
for a habeas corpus action is where the defendant is domiciled or where the
person detained is in custody. Writ may be served upon a person who is over
21 and capable of testifying. Personal service is required. The answer shall
state whether he has custody of that person or has transferred custody.
Writ may be ordered by the court only on petition. Petition may be
filed by any person or the person in custody. It shall be assigned for hearing
not less that 2 or more that 10 days after the service of the writ. Written
answer shall be filed not later than the time fixed for hearing. Failure to
comply is punishable by contempt.
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Appeal shall not suspend the judgment and must be taken within 30
days.
d. Writ of Sequestration
A writ of sequestration may be obtained when the plaintiff claims
ownership or right of possession of property, or a mortgage, security interest,
lien, privilege on the property seized if it is within the power of the defendant
to conceal, dispose of, or waste the property or revenues there from, or
remove the property from the parish during the pendency of the action.
A writ shall only be issued when the nature of the claim and grounds
relied on appear from specific facts by verified petition. Security must be
furnished in the amount of damages the defendant may sustain for wrongful
seizure. Property sequestered may not be sold before final judgment. The
creditor obtains a privilege on the property.
A defendant may move for dissolution of the writ by contradictory
motion. He may release the property by furnishing security for the
satisfaction of the judgment against him.
e. Possessory and Petitory Actions
A possessory action is one brought by the possessor of immovable
property or of a real right therein to be maintained in his possession of the
property or the enjoyment of his right when he has been disturbed, or to be
restored to the possession or enjoyment thereof when he has been evicted.
The plaintiff shall be one who possesses for himself and the defendant shall
be the person who caused the disturbance. Venue is proper where the
immovable property is located or where the defendant is located. To
maintain a possessory action the possessor must allege and prove:
(1) He had possession of the immovable property or real right
therein at the time of the disturbance
(2) He and his ancestor in title had such possession quietly
without interruption for more than one year prior to the disturbance,
unless evicted by force
(3) The disturbance was one in fact or law
(4) Action was instituted within one year of the disturbance
A petitory action is one brought by a person who claims ownership
but is not in possession of the immovable property or real right therein,
against another who is in possession or claims ownership adversely, to obtain
a judgment recognizing plaintiff’s ownership. A plaintiff in a petitory action
shall:
(1) Prove that he has acquired ownership from a previous
owner or by acquisitive prescription if the defendant is in possession;
OR
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(2) Prove a better title thereto than the defendant if the court
finds that the defendant is in possession
f. Concursus
A proceeding in which two or more persons having conflicting claims
to money, property, mortgages, privileges on property are impleaded and
required to assert their respective claims contradictorily against all other
parties to the proceeding.
A person bringing this proceeding must deposit the disputed funds in
the registry of the court.
This proceeding shall be brought any parish proper under 42 only,
except in actions involving immovables must be brought where the
immovable is located.
The petition shall allege the nature of the competing or conflicting
claims and shall include a prayer that all of the persons having such claims
be required to assert their contradictorily against all other parties to the
proceedings.
Service shall be made personal and domiciliary by the sheriff.
Each defendant is both a plaintiff and defendant with respect to all
other parties.
If the defendant fails to answer any party may move for an ex parte
order of the court limiting the time in which an answer may be filed. The
delay will be assigned by the court not to exceed 10 days from the service or
petition of the order.
If the defendant fails to answer after the delay he will be precluded
from filing an answer or asserting a claim.
The plaintiff may obtain injunctive relief prohibiting the defendant’s
from instituting or prosecuting any action in any court.
g. Writ of Distringas
If a judgment orders the delivery of a thing and the sheriff cannot
seized it because the defendant has concealed it or removed from the
jurisdiction of the court, or when the judgment orders a defendant to so or
refrain from doing an act, and he refuses or neglects to comply, a writ of
distringas can be used to distrain the property of the defendant or hold him
in contempt or to award damages to the party entitled performance.
h. Cancellation of judicial mortgages
The judgment debtor must file a suspensive appeal from the judgment
rendered against him. He must post security as fixed by the court. The bond
must be in proper form and in the amount fixed and the surety must be
qualified. The judgment debtor may then file a summary proceeding of a
rule to show cause why the judgment should not be erased. The court shall
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then order the mortgage terminated and directs the recorder of mortgages to
erase the judgment.
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