Specific Proceedings & Special Actions

Question 1

summary proceedings definition

Answer 1

those which are conducted with rapidity, within the delays allowed by the court, without citation and the observance of all the formalities required in ordinary proceedings

Question 2

summary proceedings used for

Answer 2

(1) exceptions, contrary motions, rules to show cause –> all the intermittent motions within the ordinary proceedings are heard by summary proceedings.
(2) habeas corpus, mandamus, or quo warranto proceedings (however require petition)
(3) many other interim-to-suit proceedings, child custody and support suits, several other circumstances

commence by filing a motion or rule to show cause or by petition if habeas, mandamus, or quo warranto

Question 3

executory process prerequisites

Answer 3

limited circumstances

afforded to secured creditor when:
(1) the right was created by authentic act if immovable or act under private signature duly acknowledged for movables
AND
(2) the authentic act includes a confession of judgment

Question 4

filings for executory process

Answer 4

petition praying for seizure and sale

include all authentic evidence of the bond, note, or other secured debt
the mortgage or privilege including confession of judgment

then sheriff seizes property, provides notice to other lien holders

Question 5

debtor’s options after reposession through executory process

Answer 5

may get an injunction on ground

(1) debt has been extinguished OR
(2) debt is unenforceable OR
(3) proper executory process procedure was not followed

or a suspensive appeal

(1) requires bond to be posted
(2) must be taken within 15 days of notice of seizure

Question 6

after sale of property subject to seizure through executory process by mortgagor, duties of third party?

Answer 6

third party buyer has duty to pay the debt, enjoin the sale on the bases for injunction (extinguished, unenforceable, process not followed)

or can intervene to claim proceeds equal to his improvements on property.

Question 7

deficiency judgments definition

Answer 7

only apply in executory proceedings, after the process has been completed:

obtained by suit to collect the balance due if the proceeds from the sale of the debtor’s property do not satisfy the debt

Question 8

deficiency judgment process

Answer 8

(1) an appraisal is prerequisite
(2) creditor converts executory proceeding into ordinary proceeding
(3) debtor can raise affirmative defenses, other than defects in executory process

Question 9

concursus

Answer 9

process which brings in 2 or more claimants to property in order to require them to assert their claims

venue is the proper parish for any claimant
or if regarding immovable property, then parish where immovable located

Question 10

writ of attachment

Answer 10

(1) if a debtor is acting strangely, and may be concealing property to frustrate a lawsuit, then a writ of attachment may be claimed when plaintiff claims a right in property
(2) attaching property for purposes of quasi in rem jurisdiction

if you get a writ of attachment, security due for amount of claim

Question 11

writ of sequestration

Answer 11

when plaintiff claims actual interest of ownership on specific, identifiable property.
when it’s within the power of the defendant to move that property out of the state, writ of sequestration may be appropriate

security sufficient to compensate defendant for wrongful seizure is required

Question 12

under writ of attachment or sequestration, property may not

Answer 12

be sold before final judgment

also the creditor acquires a privilege over the property

Question 13

injunction available when

Answer 13

party seeking injunction will suffer irreparable injury, loss, or damage

ie, harm that cannot be remedied by money damages

Question 14

3 types of injunctions

Answer 14

Temporary Restraining Order
preliminary injunction
permanent injunction

Question 15

TRO process

Answer 15

issued without a contradictory hearing

expires by its terms and cannot exceed 10 days

must file a verified petition and attorney certification showing attempt to give notice to other side

security required to indemnify the person wrongfully restrained for damages

any interested person can move to dissolve upon 2 days notice to the adverse party

no appeals

Question 16

preliminary injunction

Answer 16

requires notice and hearing and trial on its merits. hearing must be scheduled not less than 2 and not more than 10 days from service of notice.

security required to indemnify the person wrongfully restrained for damages

any interested person can move to dissolve upon 2 days notice to the adverse party

can appeal within 15 days of written judgement

Question 17

permanent injunction

Answer 17

requires full trial on the merits

normal appeals process

Question 18

petitory action

Answer 18

where plaintiff is seeking judgment stating that he is the owner of the property

plaintiff must not have possession of the property at time of filing suit
and defendant must either be in possession or assert that he owns property

if defendant is in possession, plaintiff must prove that he has title good against the world.

if defendant not in possession, must prove that he has better title than the defendant

Question 19

possessory action

Answer 19

when plaintiff is in possession but is being disturbed by fact or law

must prove that he has possession;
he and his ancestors in title had quiet uninterrupted possession for more than a year prior to the disturbance;
that the disturbance was in fact or law
and instituted action within 1 year of disturbance

title never at issue in possessory action

judgment notifies defendant that he haas right to assert ownership in petitory action for 60 days or loses right

devolutive appeal period is only 30 days

Question 20

notice of pendency of action

Answer 20

special type of notice of lis pendens

applies in any case filed in a Louisiana court if that action affects title to or a mortgage on property in Louisiana

written notice must be signed by filing party and counsel, file notice with recorder of mortgages in parish where all property affected is located

Question 21

venue for succession proceedings

Answer 21

mandatory venue is the parish of decedent’s domicile

if decedent was non-domiciliary, may be filed in any parish where decedent owned immovable property

Question 22

procedure to probate will

Answer 22

any person with an interest in the will may probate it
file an affidavit of death, domicile, and heirship
attach the will

if will cannot be located, file a petition for a search for the will, in which a notary will be appointed to search for the will

proces-verbal then prepared: public inventory by court-appointed notary

then court will order the will recordd, filed, and executed

Question 23

proving a will

Answer 23

can prove will through affidavit unless court requires testimony

if will challenged, BOP to prove validity of will is on the proponent of the will

if will challenged after probate, then plaintiff has to prove its invalidity if notarial testament; defendant has burden of proof for 3 months after probate for oleographic wills; then plaintiff has BOP

Question 24

videotaped testaments

Answer 24

if testator swore oath on video, then video is admissible as evidence of:
proper execution
testator’s intentions
testator’s mental state or capacity
testament’s authenticity
or by matters the courot deems relevant to probate

Question 25

foreign testaments

Answer 25

valid out of state testaments will be recognized

Question 26

possession procedure in intestate succession

Answer 26

file verified petition for possession
AND
affidavit of death, domicile, and heirship

then, prepare inventory

Question 27

sworn descriptive list of assets in intestate succession must be

Answer 27

(1) sworn and subscribed by person who filed it
(2) show location of all succession property
(3) state the fair market value of each item at date of decedent’s death

Question 28

creditors of decedent time limits

Answer 28

three months from date of judgement of possession to exert claim

then hairs must post bond to cover the claim

or the judgment will be dissolved

Question 29

requirements for possession in testate successions

Answer 29

(1) prove will
(2) file ex parte petition for possession by legatees
(3) prepare inventory or sworn descriptive list of assets and liabilities
(4) executor joins in petition,
(5) if no creditor requires administration
(6) then judgement of possession granted

Question 30

hypo: independent executor appointed to execute will. independent executor wants to sell property of the estate. are they authroized to do so?

Answer 30

yes, they may do so without court approval.

Question 31

administration of successions

Answer 31

executor named in the will is appointed by letters testamentary

if no executor appointed by will, dative executor may be appointed by the court

Question 32

executors disqualified if they are

Answer 32

under 18 
interdicted
convicted  felon  
nonresident who fails  to appoint resident agent 
who have bad moral character

Question 33

duties and rights of succession executor

Answer 33

fiduciary
compensation
inventory
power over property
tableau of distribution
final account

Question 34

if heir wants an advance on their inheritance for “maintenance during administration”

Answer 34

if succession is sufficiently solvent
and heir, surviving spouse, or legatee would be entitled to reasonable periodic allowance for his maintainance
provided that court concludes that allowance is necessary
and advances are within the amount eventually due them
then heir may compel payment

Question 35

creditor enforcing claim against succession

Answer 35

suspends prescription for up to 10 years by serving proof of claim to succession representatives or filing it in succession proceedings

Question 36

small succession

Answer 36

(1) valued under $125k at time of death, or any value who died at least 20 years before the succession
(2) then main heir and surviving spouse execute an affidavit stating date that decedent died, that deceased died intestate or testate, and marital status.
(3) then heirs can be set in possession

Question 37

partition of property among co-owners venue

Answer 37

where immovable is located, or all/part of movable property is located

Question 38

divorce and annulment venue

Answer 38

where either party is domiciled

or the parish of last matrimonial domicile

Question 39

divorce and annulment appeal time period

Answer 39

suspensive appeal available only

must be filed within 30 days

custody and alimony is NOT suspended during appeal, only 30 days available for this devolutive appeal

Question 40

default for divorce in 103(1) divorce

Answer 40

(1) when parties have lived separate and apart for the necessary time period as of filing
(2) defendant may acknowledge receipt of a certified copy of the petition
(3) waive citation, service, a and trial by notarized affidavit
(4) and have preliminary default taken the same day

Question 41

default for divorce under 102 divorce

Answer 41

(1) petition must allege jurisdiction and venue are proper, verified by affidavit
(2) service on defendant requested within 90 days of filing, or defendant can waive service
(3) then wait 180 or 365 days
(4) file rule to show cause, affidavit verifying that parties have lived separate and apart
(5) service on non-moving party

Question 42

venue for appointment of a tutor

Answer 42

parish of the surviving parish, custodial parent
or where minor resides

tutor must post security to cover value of minor’s property, unless a natural tutor

(1) file petition in court of proper venue
(2) take oath
(3) cause inventory to be taken
(4) security

Question 43

bases & process for removal of a tutor

Answer 43

mismanagement of minors property
tutor has been disqualified, or become incapable of conducting duties

process:
motion served on tutor
required to show cause to remain tutor

Question 44

judicial emancipation venue and process

Answer 44

venue is where party seeking emancipation is domiciled

(1) petition filed by 16 or 17 year old minor,
(2) stating name, domicile, age, and current address of minor, parents, and tutors
(3) why good cause exists for the emancipation
(4) descriptive list and location of minor’s property

then,

(1) emancipation summary proceeding
(2) no suspensive appeal
(3) must be recorded within 15 days by clerk in parish where rendered; within 15 days of signed, then all parishes where minor owns immovable property must be recorded.

Question 45

interdiction and curatorship venue

Answer 45

interdict’s domicile or parish of residence

Question 46

interdiction petition must include & subsequent process

Answer 46

petition:
(1) name domicile age and address of petitioner, defendant, and proposed curator
(2) reasons for interdiction and identify full/limited interdiction
(3) name and address of defendant’s spouse and adult children or other living relatives
(4) name and address of any prior legal representatives

then, serve on interested persons by personal service.

then appoint attorney to represent proposed interdict - must visit and discuss case or subject to sanctions

court MAY appoint examiner and compel examination of defendant

hearing:
summary proceeding
defendant has right to present evidence testify and cross examine witnesses

BOP = clear and convincing evidence

upon issuance of judgment of interdiction, curator must be appointed, and be recorded in conveyance and mortgage records

Question 47

modification or termination of interdiction

Answer 47

court or any person may move to modify or terminate interdiction

court will grant motion if proved by a preponderance of the evidence

Question 48

interdiction visitation rule

Answer 48

curator must allow visitation between interdict
and a relative
if in the interdict’s best interest

Question 49

eviction procedure

Answer 49

(1) when right to occupy haas ceased (by termination of lease or failure to pay rent)
then
(2) lessor delivers written notice to vacate within 5 days
(3) if lessee’s whereabouts are unknown, may attach to door
(4) if lessee fails to vacate, lessor can serve rule to serve cause to deliver the premises
(5) lessor can immediately take possession if he reasonably thinks lessee have abandoned
(6) rule heard no earlier than 3rd day after service
(7) court may issue warrant directing sheriff to take possession if lessee fails to vacate 24 hrs after judgment
(8) no suspensive appeal

Question 50

habeas corpus

Answer 50

is a writ commanding a person who haas another in his custody to produce him in court and state the authority for the custody

ex: adoption disputes

venue is where defendant is domiciled or where detainee is in custody

Question 51

mandamus

Answer 51

writ directing a public officer to perform a ministerial (not discretionary) duty required by law
OR
directing a corporation or LLC to perform a duty required by charter, bylaws, law, or to recognize the rights of its members or shareholders

Question 52

quo warranto

Answer 52

writ directing individual to show by what authority he claims to hold public, corporate, or LLC office

Question 53

in forma pauperis procedure

Answer 53

IFP allows litigants to proceed without prepayment of costs if they are unable to prepay because of their poverty

(1) request it in an ex parte motion or in your first pleading
(2) attach affidavits of the litigants and a third person (other than attorney) attest to litigant’s inability to prepay costs
(3) EITHER opposing party or clerk of court can challenge – only one rule is allowed

Question 54

*testing sufficiency and validity of a bond

Answer 54

when party to a judicial proceeding is required to furnish bond,
any person in interest can test the sufficiency of the bond

by ruling the party furnishingt he bond into trial court
to show cauase
why the bond should not be decreed insufficient or invalid
and why the particular
court proceeding should not be set aside

Question 55

hypo: if the alleged insufficiency of the bond is based on the insolvency of a surety, then _____ has burden of proving surety’s solvency

Answer 55

party furnishing bond

Question 56

curing insufficient bond

Answer 56

within 4 days of judgment holding bond insufficient
party furnishing bond may furnish new or supplemental bond

if provided, underlying proceeding will not be affected