Foreign Judgement
To enforce a judgement from out of the state to enforce in Louisiana what action is needed and the requirements?
There are two ways to make an out of state judgement recognized in the state: (1) an ordinary proceeding to have the out of state recognized and made the judgement in the Louisiana court, or (2) through an expedient way is the Enforcement Judgement Act.
The type of proceeding available for the sale and seizure of a property?
An executory proceeding is available to the bank because it is used to effect the sale and seizure of a property without previous citation and judgement.
Judicial process and cause of action against Lessor.
First the lesseee must answer the rule to show cause under oath and assert an afrimative defense. Following the defendant may file a suspensive appeal within 24 hours of the judgement.
1. What type of appeal the defendant should file?
2. The time delays?
3. Is posting security required? If so, what are the requirements to post security?
1. The defendant should file a suspensive appeal because it would allow him to pursue the appeal without having the judgement executed against him.
2. A suspensive appeal must be taken within 30 days of either: (1) the time for filing of a new trial has elapsed, or (2) the clerk's mailing of a judgement denying a motion for a new trial.
3. Yes, posting security is required. The suspensive appeal secures satisfaction of the judgement and any damages caused by the delay of its execution.
If the court issues a preliminary judgement against defendant because they did not respond in five years although the plaintiff and defendant entered into an agreement take their time responding is the appellate court restricted in its review and determination?
In reviewing a judgement of default, the appellate court is restricted to a determination of whether the record contains sufficient evidence to support a prima face case. This determination is a factual one and governed by the manifest error standard of review.
What documents does the Enforcement Judgement Act require?
The Enforcement of Judgement Act require you to: (1) annexing an authenticating copy of the out of state judgement to an ex parte petition and filing an affidavit with the last known address for the judgement debtor and judgement creditor; (2) the clerk will then send notice to the judgement debtor; and (3) the out of state judgement may then be executed after 30 days of notice.
What are the requirements for the form of documents?
The two requirements regarding the form of documents are: (1) an authentic act and (2) confession of judgement.
An authentic act is executed in the presence of two witnesses and a notary.
A confession of judgement clause where the debtor is agreeing to allow the creditor to take the property without court approval.
What may the defendant do if he alleges he was not given sufficient notice?
What if the defendant did not tell the lessor he left for awhile?
The defendant may file a declinatory exception for insufficient service of process. Under Louisiana law, when the owner of the property wishes to evict their tenet they must personally serve the tenet.
When the whereabouts of the lessee is unknown or the property is abandoned then the lessor may attach the notice of eviction to the door.
May the trial court hear a motion to tax expert witness fees after the trial court record s lodged with the appellate court?
Yes, after an appeal has been perfected the trial court retains jurisdiction to perform certain acts, including the taxation of expert witness fees.
If the defendant files a suspensive appeal, how should the court rule?
The appellate court should affirm the trial courts ruling because the evidence of fraud allegations were not entered into the trail court records and the appellate court is restricted to only consider the evidence within the record.
Where must the Execution of Foreign Act be filed?
Who is the proper party to sue for a sale and seizure claim and a third party is involved? What is the rights to the defendant?
The proper party to sue is the original debtor or his successors.
The rights of the defendant is a suspensive appeal or an injunction to enjoin the seizure.
If the defendant takes the suspensive appeal route they must file a written motion/petition with the bond within 15 days of notice of the sale and seizure.
If the defendant takes the injunction route to enjoin the seizure they must prove: (1) the debt has been extinguished, (2) the debt is legally unenforceable, or (3) the proper executory process has not been followed.
Assume the judgement was granted in favor of the plaintiff and the defendant was ordered to leave the premises and two days have past. What may they do?
The defendant will have no course of action because the suspensive appeal must be filed 24 hours of notice of judgement.
What if the defendant's surety filed for bankrupt. If you file a motion to test the solvency of the surety where do you file it? Appellate court or trial court?
The motion to test the solvency of the surety must be filed in the trial court where the bond was set because the trial court retains jurisdiction to test the solvency of surety on appeal after the purported perfection of the appeal.
What is the courts rationale for its ruling?
The courts rationale for affirming the trial courts ruling is the evidence was not introduced into the trial courts record. Documents not placed in evidence and issues not brought in the trial court cannot be considered on appeal. The court of appeal have no jurisdiction to review new evidence.
Effect of Sale of Seizure Cont.,
How can the banks rights be protected to collect the entire debt?
If the proceeds of the sale is insufficient to cover the entire debt the bank may institute a deficiency judgement to collect any outstanding amount. However, in order for the bank to institute this proceeding the Sheriff must ensure the property is appraised piece by piece as required by the Minuteness.
What is the procedure to affect seizure and sale of the property?
(1) The first step is filing the petition.
(2) Next, the court will order an issuance of writ or seizure and sale ordering the sheriff to seize and sale the property with mortgage.
(3) Following, the sheriff will serve the defendant with notice of the seizure and sale and file a Mennonite in the mortgage records to provide notice to any third parties who may have an interest in the property.
Is there a procedural device the landlord may file to collect past due rent?
The landlord may file a petition and a writ of sequestration. The writ of sequestration may be filed to seize the movables inside the property to satisfy the past due rent.
1. Assume the court has found the solvency of the surety is insufficient. Is the suspensive appeal still valid?
2. What may the defendant do to retain the suspensive appeal and the time limits?
1. The suspensive appeal may still be valid if the defendant meets the time requirements for furnishing a new or supplemental bond by filing for a new or additional surety.
2. The defendant has four days, exclusive of holidays, of judgement holding the original bond insufficient to furnish a new or supplemental bond by filing for a new or additional surety.
What must your client do if they are not successful on appeal?
If your client is unsucessful on appeal they must first apply for a rehearing in the appeallate court within 14 days of mailing or notice of judgement of opinion. Within 30 days of a notice from the court of appeal the client may apply for a writ of certiorari with the Supreme Court.
Effect of Sale and Seizure Cont.,
What are the rights to third parties and what remedies may they seek?
Third parties may halt the executory proceeding by: (1) paying the debt, (2) enjoin the sale on some grounds as debtor or failure to record mortgage, or (3) intervene to claim proceeds equal to improvements made.
Who will be served in the seizure and sale dispute?
The original debtor will be served by the sheriff with written notice of the seizure.
What if the defendant have an affirmative defense, what should they do?
The defendant should respond to the rule to show cause and state their affirmative defense. The defendant may apply the amount paid for necessary repairs to satisfy the rent if the lessor failed their obligation to make necessary repairs.