Specific Proceedings & Special Actions Flashcards
summary proceedings definition
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
summary proceedings used for
(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
executory process prerequisites
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
filings for executory process
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
debtor’s options after reposession through executory process
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
after sale of property subject to seizure through executory process by mortgagor, duties of third party?
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.
deficiency judgments definition
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
deficiency judgment process
(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
concursus
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
writ of attachment
(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
writ of sequestration
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
under writ of attachment or sequestration, property may not
be sold before final judgment
also the creditor acquires a privilege over the property
injunction available when
party seeking injunction will suffer irreparable injury, loss, or damage
ie, harm that cannot be remedied by money damages
3 types of injunctions
Temporary Restraining Order
preliminary injunction
permanent injunction
TRO process
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
preliminary injunction
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
permanent injunction
requires full trial on the merits
normal appeals process
petitory action
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
possessory action
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
notice of pendency of action
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
venue for succession proceedings
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
procedure to probate will
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
proving a will
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
videotaped testaments
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
foreign testaments
valid out of state testaments will be recognized
possession procedure in intestate succession
file verified petition for possession
AND
affidavit of death, domicile, and heirship
then, prepare inventory
sworn descriptive list of assets in intestate succession must be
(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
creditors of decedent time limits
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
requirements for possession in testate successions
(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
hypo: independent executor appointed to execute will. independent executor wants to sell property of the estate. are they authroized to do so?
yes, they may do so without court approval.
administration of successions
executor named in the will is appointed by letters testamentary
if no executor appointed by will, dative executor may be appointed by the court
executors disqualified if they are
under 18 interdicted convicted felon nonresident who fails to appoint resident agent who have bad moral character
duties and rights of succession executor
fiduciary compensation inventory power over property tableau of distribution final account
if heir wants an advance on their inheritance for “maintenance during administration”
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
creditor enforcing claim against succession
suspends prescription for up to 10 years by serving proof of claim to succession representatives or filing it in succession proceedings
small succession
(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
partition of property among co-owners venue
where immovable is located, or all/part of movable property is located
divorce and annulment venue
where either party is domiciled
or the parish of last matrimonial domicile
divorce and annulment appeal time period
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
default for divorce in 103(1) divorce
(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
default for divorce under 102 divorce
(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
venue for appointment of a tutor
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
bases & process for removal of a tutor
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
judicial emancipation venue and process
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.
interdiction and curatorship venue
interdict’s domicile or parish of residence
interdiction petition must include & subsequent process
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
modification or termination of interdiction
court or any person may move to modify or terminate interdiction
court will grant motion if proved by a preponderance of the evidence
interdiction visitation rule
curator must allow visitation between interdict
and a relative
if in the interdict’s best interest
eviction procedure
(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
habeas corpus
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
mandamus
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
quo warranto
writ directing individual to show by what authority he claims to hold public, corporate, or LLC office
in forma pauperis procedure
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
*testing sufficiency and validity of a bond
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
hypo: if the alleged insufficiency of the bond is based on the insolvency of a surety, then _____ has burden of proving surety’s solvency
party furnishing bond
curing insufficient bond
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
