Summary Proceedings

Question 1

Summary proceedings

Answer 1

Typically proceedings are matters which require speedy resolution. They are conducted with rapidity.

Question 2

Types of Summary Proceedings

Answer 2

• All incidental questions that arise in ordinary and other judicial proceedings
• New Trial Applications
• Exceptions, contradictory motions, rules to show cause
• Homologation of judicial partition
• Habeas corpus, mandamus, or quo warranto proceeding
• injunctions
• Custody, visitation
• Determination of Rank of Mortgages, liens and privileges of property.

Question 3

How is a Summary Proceeding Commenced?

Answer 3

A summary proceeding is commenced by:
1. filing a contradictory motion, or
2. a rule to show cause, or
3. A petition if it is a habeas corpus, quo warranto or mandamus proceeding.

Question 4

Extra Ordinary Remedies

Answer 4

They are begun by filing a petition which must be served personally on the defendant. Defendant be the person who is maintaining custody over the person to be produced. Hearing will be assigned for hearing not less than 2 days nor more than 10 days after the petition is served.

The answer must be filed by the time of the hearing; may be held in open court or in chambers.

Question 5

Types of Extra ordinary Remedies

Answer 5

Writ of Habeas Corpus
writ of quo warranto
Writ of Mandamus

Question 6

Writ of Habeas Corpus

Answer 6

Function is to produce the person before the court and state the authority for asserting custody over the person.

Question 7

Examples of Writ of Habeas Corpus

Answer 7

Child custody disputes
Interdictions
Health Regulations Detentions
Imprisonment for contempt of court

Question 8

Petition for Habeas Corpus

Answer 8

A petition for Habeas Corpus may be filed by the person in custody or by any other person in his behalf.

Question 9

Answer for Habeas Corpus

Answer 9

• The answer must state the authority by which he is detaining the person.
• After hearing the court will order the person released or place them in custody of the appropriate person.
• An appeal will be devolutive, not suspensive but must be taken within 30 days.

Question 10

Writ of Mandamus

Answer 10

This writ is used to direct a public official, corporation or officer of the corporation or LLC to perform certain duties required by the bylaws, charter or the law.
-For public officials, the duties must be ministerial , rather than discretionary

Question 11

Writ of Mandamus
(Alternative writ)

Answer 11

The Court will issue an “alternative writ” which will order the D to either perform the requested act or show cause why they should not be required to do so.

Question 12

Writ of Quo Warranto

Answer 12

The writ of quo warranto directs and individual to show by what authority he claims or holds a public or corporate office or to direct a corporation to show by what authority it is exercising certain powers.

Question 13

Executory Proceedings

Answer 13

Executory process is an expedited procedure that permits the rapid foreclosure and sale of certain property which secures a debt without first obtaining a personal judgment against the debtor.
It allows the creditor to seize and sell the underlying collateral.

Question 14

Prerequisites of Executory Proceedings

Answer 14

• Authentic Act
  -Confession of judgment

Question 15

Confession of Judgment

Answer 15

Confession of judgment dispenses with the need to obtain a judgment from the court before seizure and sale of debtor’s property securing the judgment.

Question 16

Executory Proceeding
(Petition )

Answer 16

Petition ( Citation is unnecessary) which prays for seizure and sale of the property securing the mortgage or privilege and authentic evidence of :
1. the note , bond, or other debt instrument secured by a mortgage, security agreement, or privilege.
2. the authentic act of mortgage or on immovable property importing a confession of judgment; or
3. the act of mortgage or privilege on movable property property importing a confession of judgment whereby authentic act or by private signature duly acknowledge.

Question 17

Execution of Writ of seizure and Sale

Answer 17

After a properly filed petition for executory process is filed, the court will:
- order issuance of a writ of seizure and sale, commanding the the sheriff to seize and sale the property
- Sheriff will seize the property
- Sheriff serve the D with written notice of seizure and the Mennonite notices in the mortgage.
- Seized property will be advertised and auctioned under writ of fieri facias.
- If appraisal is waived in the mortgaged, then it need not be appraised.

Question 18

Debtor’s Remedies

Answer 18

Once the seizure and sale have begun, the debtor may seek the enjoin the seizure and sale on several basis.
- the debt had been extinguished
- the debt is legally unenforceable
- Executory process has not been followed.

Question 19

Deficiency Judgment

Answer 19

When the proceeds of the property which were seized and sold under executory process are insufficient to satisfy the original debt, the lender may institute a deficiency judgment proceeding to collect any outstanding amounts owed,
- Must have been an appraisal of the seized property prior to the judicial sale.

Question 20

provisional Remedies

Answer 20

Attachment
Sequestration
injunction

Question 21

Attachment

Answer 21

A writ of attachment is used by a prospective P to try to secure his ability to execute on the intended judgment against a prospective D.

Question 22

What do you need to attach property ?

Answer 22

Writ of attachment may be obtained when the defendant:
1. Has concealed himself to avoid service of citation;
2. Has granted a security interest under Chapter 9 of the Louisiana Commercial Laws or has mortgaged, assigned or disposed of his property or some part thereof, or is about to do any of these acts, with intent to defraud his creditors or give an unfair preference to one or more of them;
3. Has converted or is about to convert his property into money or evidences of debt with intent to place it beyond the reach of creditors.
4. Has left the state permanently or is about to do so before a judgment can be obtained and executed against him.
6.5. Is a non resident who has a duly appointed agent for service of process within the state.

Question 23

Sequestration

Answer 23

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under writ of sequestration, if it is within the power of the defendant to conceal, or remove the property, dispose of, or waste the property or the revenues therefrom the parish , during the pendency of action.

Question 24

Injunction

Answer 24

3 levels of Injunctive Relief :
TRO
Preliminary Injunction
Permanent Injunction

Question 25

TRO

Answer 25

First level which is appropriate when the need for an injunction is so urgent, there is no time for court to have a hearing. It expires in 10 days. Security is required.

Question 26

Preliminary Injunction

Answer 26

Petition must be verified and notice must be given on opportunity for hearing. hearing must be set no less than 2 days nor more than 10. After the hearing, the court will decide whether to preliminary enjoin the D’s until there can be a trial on the merits. Security Required.

Question 27

Permanent Injunction

Answer 27

A full trial on the merits wherein the court decides whether to make the preliminary injunction permanent.

Question 28

Petitory Actions

Answer 28

An action in which the P seeks a judgment recognizing that he is the owner of the immovable property that he does not possess at the time.
1. P must not have possession of the immovables property when suit is filled, and
2. D is either in possession of the immovable property or is asserting adverse ownership of the immovable property.

Question 29

Petitory Action ( Venue )

Answer 29

The parish where the property is located or where the D resides.

Question 30

Possessory Actions

Answer 30

Possessory action is used when P is in possession of immovable property or a right therein and his possession or enjoyment of the right is being disturbed. It can also be used to restore a P to his possession and enjoyment of his property.
- Disturbance can be either be in law or in fact

Question 31

Disturbance in fact

Answer 31

A disturbance in fact is an eviction or any other physical act that prevents the possessor from enjoying his property

Question 32

Disturbance in law

Answer 32

A disturbance in law is the execution, recordation or registry of any instrument that asserts or implies a right of ownership or to possession of an immovable adverse to the possessor.

Question 33

Boundary Actions

Answer 33

Boundary Actions are used to resolve disputes as to legal boundaries of adjoining immovable properties. The boundary action is an ordinary proceeding.

Question 34

Notice of Pendency Action

Answer 34

A notice of pendency action is a means by which notice is provided to third parties that a pending lawsuit implicates rights to immovable property lawsuit implicates rights to immovable property about which the third party may have a legal interest.

Question 35

What is in the notice of Pendency Action

Answer 35

• writing
  -signed by the party of the counsel filing the notice,
• set forth the names of the persons against when it is to be effective
• the court, title, docket number, filing date, object of demand and
• description of property
• Must be filed with the Recorder of Mortgages where the property is located

Question 36

Partition

Answer 36

Joint property owners can separate their ownerships interests by partitioning the property, either by private act or judicially in court .

Question 37

Types of Partition

Answer 37

• Partition in Kind
• Partition in Licitation

Question 38

Partition in Kind

Answer 38

If the property is divisible by its nature the court will order the petition to be made in kind

Question 39

Partition in Licitation

Answer 39

If the property cannot be divided, the property will be sold at public auction after advertisement and the proceeds of the sale will be disturbed proportionately amongst the co-owners.

Question 40

Eviction

Answer 40

LA law provides for a streamlined for a stream, expedited process for eviction of tenant for nonpayment or simply expiration of the lease or any other reason.

Question 41

Emancipation

Answer 41

This process allows minors who are at least 16 to judicially acquire the effects of majority and terminate parental authority over his affairs.

Question 42

Emancipation ( Petition)

Answer 42

The Petition must:
1. be made by the minor, or
2. the parents will be named as defendants
3. Jointly by the minor and the parents, in which case the petition need not be served.

Question 43

Emancipation ( Petition 2 )

Answer 43

Petition set forth with Particularity the minor’s :
- name
- domicile
- age
-current address, if known
- the parents
- why is there good cause for the emancipation.
- if it is a limited emancipation, which effects majority are to be conferred upon the minor.
- A descriptive list of the minor’s property.

Question 44

Tutorship

Answer 44

Minors lack the legal effects of majority, including the capacity to sue and be sued, to buy property or even to contract on their own behalf.
A tutor, who functions as a fidiciary, must be judicially appointed to represent the minor’s interest in these types of transactions. The tutor must take an oath and post security prior to this appointment.

Question 45

Types of tutors

Answer 45

Natural Tutor
By will
Legal tutor
Dative Tutor

Question 46

Natural Tutor

Answer 46

Either of the surviving parents

Question 47

By will

Answer 47

Tutor who is nominated in a will or by authentic act.

Question 48

Legal Tutor

Answer 48

Tutor who is appointed from a list of the minor’s ascendants and collaterals related by blood within the third degree and the surviving spouse of the minor’s mother or father dying last who resides in LA

Question 49

Venue of Tutorship

Answer 49

In the parish of the surviving parent, if one of the parents are divorced or judicially separated or where the minor resides.

Question 50

Undertutor

Answer 50

Court also appoints a “responsible” person who is to represent the minor’s interests whenever there is a conflict between the minors’s interest and that of the tutor.