Civil Procedure II

Spring 2001
Professor Stallworth
Scott G. Yarnell

INTRODUCTION

I. Time Table of Delays

A. Alimony, Custody, Visitation:

1. Appeal from Judgment Awarding: 30 days from applicable date provided for devolutive appeal.

B. Amendment

1. Answer: D may amend answer once without leave of court within 10 days after it has been served.

2. Petition: without leave of court any time before answer is served.

3. Supplemental pleading: on motion, with leave of court.

C. Answer

1. Petition, District Court: within 15 days from service of citation or exception may be filed with 10 days to
answer if exception overruled or 10 days after service of amended petition.

a. State and political subdivisions have 30 days.

2. Petition, City/Parish/JP Courts: within 10 days from service unless served through sec of state then 15 days.

3. Default Judgment: filed at any time prior to confirmation of default.

a. Have to give notice to state and political subdivisions of taking a default judgment.

4. Amended Pleading: within time remaining for pleading to the original pleading or within 10 days after
service of amended petition.

5. Incidental Demand: within the time delay of 1 and 2 above.

6. Appeal: see Appeals.

7. Garnishment Interrogatories: see Garnishment.

8. Interrogatories: see Discovery.

9. Concursus: same delay for ordinary proceedings, but if no timely answer, then further time not exceeding
10 days from service or publication.

10. Eviction, Rule For: prior to trial

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D. Appeal

1. Devolutive appeal (does not stay the execution): within 60 days of the appealable order or judgment of:

a. Expiration of delay for applying for a new trial or JNOV which is 7 days exclusive of legal holidays which
starts the day after notice mailed or served.

b. Date of mailing of notice of court’s refusal to grant a new trial or JNOV.

c. Appellee has 10 days to appeal after the mailing by the clerk of notice of devolutive appeal timely taken.

2. Suspensive appeal (stays the execution and have to put up security): within 30 days of the appealable order
or judgment of :

a. Expiration of delay for applying for a new trial or JNOV which is 7 days exclusive of legal holidays which
starts the day after notice mailed or served.

b. Date of mailing of notice of court’s refusal to grant a new trial or JNOV.

3. Answer to Appeal: no later than 15 days after return day or lodging of the record, whichever is later.

4. Motion to Dismiss Appeal for Irregularity: 3 days exclusive of holidays after return date or lodging of
record, whichever is later.

5. Rehearing, Court of Appeal: within 14 days of mailing of notice of judgment and opinion.

6. Rehearing, Supreme Court: within 14 days of mailing notice of judgment.

7. Certiorari, Application for Writ to Louisiana Supreme Court: within 30 days of mailing of notice of
judgment and opinion of Court of Appeals; or within 30 days of mailing of notice of denial of timely application for
rehearing by any party.

8. City and Parish Courts: within 10 days from the date of judgment or from the service of the notice of
judgment, when such notice is necessary; or from the denial of new trial or service of notice thereof (this runs from
receipt of the notice and not the mailing).

9. Costs, Appeal, Payment: within 20 days of the mailing of the notice of estimated costs by the clerk.

E. Charge to Jury: any time during the trial.

F. Computation of Time

1. The date of the act, event, or default after which the period begins to run is not counted, and the last day of
the period is counted, unless it is a legal holiday. In a court of limited jurisdiction the time is computed, for appeal
of denial of a new trial, the day after starts the count. If it falls on a weekend then go to the next business day.

G. Concursus: see Answer

H. Default

1. Judgment of Default (Preliminary Default): after D fails to answer timely.

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2. Confirmation of Default: after 2 clear days, exclusive of holidays, from the entry of the judgment of
default.

3. Parish and City Courts: D fails to answer, final judgment may be rendered and prior default is not
necessary.

4. Justice of the Peace: final judgment shall be rendered if D fails to answer timely and no prior default is
necessary.

I. Discovery
1. Deposition on Oral Examination: leave of court required if taken prior to expiration of 15 days from service
of citation on any defendant.

2. Interrogatories, Answer: 15 days after service; but 30 days for a D after service of petition on that D; 30
days for state and political subdivisions.

3. Medical Records, Request for Release of: 15 days after service of request for medical records’ release.

4. Production of Documents and Things: response to be served within 15 days after service of requests; or 30
days from service of petition.

J. Divorce Annulment

1. Alimony, Custody, Visitation: see that heading above

2. Appeal, Suspensive: only within 30 days from applicable dates as listed in the devolutive appeal.

K. Eviction

1. Lessee: 5 day notice to vacate if lease terminated; if no fixed term, 10 day notice.

2. Occupant: 5 day notice to vacate.

3. Rule for Possession: returnable not earlier than 3rd day after service of rule for possession.

4. Warrant for Possession: issues immediately if lessee or occupant does not comply within 24 hours.

5. Appeal, Judgment of Eviction: appeal must be applied for and bond furnished within 24 hours after
rendition of judgment of eviction.

6. Execution, Judgment: creditor may proceed only after delay for suspensive appeal has elapsed and no
suspensive appeal has been perfected.

L. Exceptions

1. Declinatory and Dilatory: pleaded prior to or with the answer or prior to or with the filing of any pleading
seeking relief or prior to confirmation of default judgment.
2. Peremptory: pleaded at any time prior to the submission of the case for a decision

3. Trial of exceptions: held in advance of the trial.

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M. Executory Proceeding, Appeal: within 15 days of the signing of the order directing the issuance of a writ of
seizure and sale.

N. Garnishment

1. Interrogatories, Delay for Answering: within 15 days from service of interrogatories.

2. Traversing Answer of Garnishee: within 15 of service of notice of filing answer.

O. Habeas Corpus, Appeal: devolutive appeal only, within 30 days from applicable dates of devolutive appeal.

P. Incidental Demand

1. Answer: see Answer

2. Filing: without leave of court, any time up to and including time answer is filed to principal demand;
thereafter, with leave of court.

Q. Injunction

1. Dissolution, TRO or preliminary injunction: upon 2 days’ notice, or such shorter notice as court may
prescribe.

2. Dissolution, Proof of Affidavits: affidavits must be served on adverse party 24 hours in advance of hearing.

3. Appeal, Preliminary Injunction: within 15 days from date of the order. Suspensive effect only if court so
orders.

4. Appeal, Final Injunction: same delays as for other final judgments, but suspensive appeal allowed only on
order of court.

R. Interdiction

1. Appeal, Appointment or Removal of Curator: not suspensive, and only within 30 days of the applicable
dates provided in a devolutive appeal.

2. Curator, Appointment: court shall appoint within 30 days after judgment of interdiction.

S. JNOV: within 7 days, exclusive of legal holidays, from service of notice of judgment under Article 1913.

T. Judgment Debtor Examination, Appearance: court shall order appearance of debtor not less than 5 days
from service of motion and order.

U. Motions

1. Judgment of the Pleadings: after the answer is filed, but within such time as to not delay trial.

2. Strike, Motion to: after service of the pleading upon the mover (no time limit on the motion). Can be on
the court’s own moving or a party’s moving.

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3. Summary Judgment: by the P, any time after answer filed; by the D, at any time. The motion shall be
served at least 10 days before the time specified for the hearing.

V. New Trial, Application: within 7 days, exclusive of legal holidays, from service of notice of judgment
under Article 1913.

W. Nullity of Judgments

1. Vice of Form: at any time.

2. Fraud or Ill Practices: must be brought within 1 year from discovery of the fraud or ill practice.

X. Partition, Absentee: absent D has 15 days from publication of notice to answer petition.

Y. Possessory Action

1. Relief Granted: court may order D to assert petitory action within 60 days from date judgment becomes
executory.

2. Suspensive Appeal: within the delays provided.

3. Devolutive Appeal: within the delays provided.

Z. Service of Process/Citation

1. All D whether individual or state: must request within 90 days of he commencement of the action.

2. D can give written waiver.

3. Personal and domiciliary at any time of the day or night including Sundays and holidays.

AA. Succession Proceedings

1. Claims Against Succession: succession representative shall, within 30 days of receipt thereof, acknowledge
or reject the claim.

2. Payment of Debts of Succession: upon expiration of 3 months from death of decedent.

3. Homologation of Petition to Pay Debts: can be homologated after the after the expiration of 7 days from
publication of notice of filing of petition.

4. Account of Succession Representation, Homologation: may be homologated after expiration of 10 days

from date of service.

5. Probate, Opposition: if objection made orally to ex parte probate, opponent is allowed 10 days to file
opposition.

BB. Rehearing: see Appeals.

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CC. Revival of Judgment: anytime before it prescribes.

DD. Seizure, Excessive, Reduction: by contradictory motion not less than 10 days before day fixed for sale.

EE. Tutorship

1. Opposition to Application: legal or dative tutor, 10 days from publication or mailing of notice of
application of appointment.

2. Appeal, From Appointment of Tutor: NOT suspensive, and only within 30 days from applicable dates
provided for a devolutive appeal.
3. Inventory of Minor’s Property: shall be begun no later than 10 days after order is signed.

II. Exceptions

A. Declinatory Exceptions: This exception may be raised upon the following grounds: 1) Insufficiency of
citation; 2) Insufficiency of service of process; 3) Lis Pendens; 4) Improper Venue; 5) Lack of personal jurisdiction;
6) Lack of subject matter jurisdiction.

1. NOTE: Objections which may be raised through a declinatory exception, except lack of subject matter
jurisdiction and non-waivable "status" venue, are waived unless pleaded.

B. Dilatory Exceptions: Grounds for a dilatory exception are: 1) Prematurity (e.g. filing for divorce before the
applicable time period has elapsed); 2) Want of amicable demand; 3) Unauthorized use of summary proceeding; 4)
Nonconformity with the formalities of the petition; 5) Vagueness or ambiguity in the petition; 6) Lack of procedural
capacity; 7) Improper cumulation of actions, including improper joinder of parties; and 8) Discussion (C.C.P. Art.
5151).

1. Note: All dilatory exceptions must be made timely (see below) and in one motion or they are deemed
waived.

C. Peremptory Exceptions: Grounds for a peremptory exception include: 1) Prescription; 2) Res judicata; 3)
Non-joinder of a party under Articles 641 and 642; 4) No cause of action; 5) No right of action or no interest in the
plaintiff to institute suit.

1. Note: Res Judicata and prescription must be affirmatively alleged. The court on its own motion (either at
trial or appellate level) may recognize the other peremptory exceptions and dismiss the case.

III. Appeals

A. What type of judgments are reviewable?

1. Final

2. Interlocutory judgment that causes irreparable harm (use a supervisory writ).

B. Louisiana Supreme Court

1. Rule X: 5 considerations that the Court takes in granting an appeal:

a. Conflicting decisions among appellate courts or the U.S. Supreme Court on the same legal issue;

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b. Significant unresolved issues of law;

c. Overruling or modification of controlling precedents;

d. Erroneous interpretation or application of constitution or laws; and

e. Gross departure from proper judicial proceedings.

2. Certified questions go to the Supreme Court. Usually to clarify a confusing issue of law.

3. Supreme Court has discretion on whether or not to hear an appeal in all cases.

C. Louisiana Appellate Court’s

1. Scope of review: review both law and fact in civil matters and only law in criminal matters.

2. Standard of review:

a. Abuse of discretion by a lower court. Usually this is in money awards and the subjective rulings of a court.
App. Court can lower or raise an award if abuse of discretion is found.

b. Manifestation of error by a lower court. Usually this is when attacking the merits of a case in that the lower
court incorrectly applied the law or incorrectly analyzed the facts, etc...

3. All final judgments are appealable as a right to the appellate court.

4. Exception is a supervisory writ which is discretionary. Here the AC may treat it as an appeal.

5. An application for supervisory relief will be denied when the applicant has failed to seek appropriate relief
by available appellate procedures within the time allowed by law, but thereafter attempts to secure such relief via
supervisory jurisdiction. Cloud v. Bushnell.

IV. Nullity of Judgments, C.C.P. Articles 2001-2006

A. Art. 2001, Grounds: For vices of either form or substance as provided in Articles 2002 through 2006.

B. Art. 2002, Time for action: A final judgment shall be annulled if it is rendered:

1. Against an incompetent person not represented as required by law.

2. Against a defendant who has not been served with process as required by law and who has not waived
objection to jurisdiction, or against whom a valid judgment by default has not been taken.

3. By a court which does not have jurisdiction over the subject matter of the suit.

4. B: Except as otherwise provided in Art. 2003, an action to annul a judgment on the grounds listed in this
Article may be brought at any time.

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C. Art. 2003, Lost through acquiescence: A defendant who voluntarily acquiesced in the judgment, or who
was in the Parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the
judgment on any of the grounds listed in Art. 2002.

1. Still have to go to Arts. 1913 and 1914 for finding out about how and when notice was served for time
delays

D. Art. 2004, Annulment for vices of substance; peremption of action: A final judgment obtained by fraud or
ill practices may be annulled. An action to annul a judgment on these grounds must be brought within 1 year of the
discovery by the plaintiff in the nullity action of the fraud or ill practices.

1. Each case must be considered from an equitable viewpoint to ascertain whether it would be inequitable or
unconscionable to allow judgment to stand. A two-step analysis is required: 1) the party seeking the annulment
must have been deprived of some legal right, and 2) the resulting judgment must be unconscionable. Washington v.
Lee Tractor Co., Inc..

E. Art. 2006, Court where action brought: An action to annul a judgment must be brought in the trial court
where the judgment was rendered.

F. Cases

1. Fraud can be proved only by strong and conclusive proof, not simply by the preponderance of the evidence.
St. Mary v. St. Mary.
2. Conduct which prevents an opposing party from having an opportunity to appear or to assert a defense
constitutes a deprivation of his legal rights. Kim Search, Inc. v. Sheffield.

3. Was default judgment obtained by fraud? The court looked at the customary procedures at the lower court
and found that P’s counsel did not follow them. Sup C found this fit the test in Sheffield. LeBlanc v. Electric
Clinic, Inc..

4. Opposing party knew about problems with excess insurance policy, but failed to make it known to the court
which constituted an ill practice. Thibodeaux v. Burton.

V. Revival

A. Art. 2003: 10 years to execute judgment or have it revived within the 10 year time limit. If do not do this
and time runs then loose the right to execute money judgments.

B. Look at C.C.P. 5059 to determine computation of time.

THE EFFECTS OF JUDGMENTS

I. Judicial Mortgage

A. Louisiana Civil Code Articles

1. Art. 3300, Creation of Judicial Mortgage: A judicial mortgage is created by filing a

judgment with the recorder of mortgages.

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 2. Art. 3301, Creation of Legal Mortgage: A legal mortgage is created by complying with
the law providing for it.

3. Art. 3302, Property Burdened by Judicial and Legal Mortgages: Judicial and legal
mortgages burden all the property of the obligor that is made susceptible of mortgage by
Paragraphs 1 through 4 of Article 3286 or that is expressly made subject to judicial or
legal mortgage by other law.

4. Art. 3303, Nature of Judicial and Legal Mortgages: Judicial and legal mortgages are
general mortgages. They are established over property that the obligor owns when the
mortgage is created and over future property of the obligor when he acquires it.

5. Art. 3304, Judgment; Suspensive Appeal: A judicial mortgage is not affected or

suspended by a suspensive appeal or stay of execution of the judgment.

6. Art. 3305, Judgments of Other Jurisdictions:

a. The filing of an authenticated copy of a judgment of a court of a jurisdiction

foreign to this state, such as the U.S., another state, or another country, creates a
judicial mortgage only when so provided by special legislation, or when
accompanied by a certified copy of a judgment or order of a Louisiana court
recognizing it and ordering it executed according to law.

b. In all other cases the judgment of a court of jurisdiction foreign to this state
creates a judicial mortgage only when a Louisiana court has rendered a
judgment making the foreign judgment the judgment of the Louisiana court, and
the Louisiana judgment has been filed in the same manner as other judgments.

7. Art. 3306, Judgment Against Person Deceased: A judicial mortgage burdens the property
of the judgment debtor only and does not burden other property of his heirs or legatees
who have accepted the succession.

B. Louisiana Code of Civil Procedure Articles

1. Art. 2251, Execution only in trial court; appellate court judgment: A judgment can be
executed only by a trial court. A party seeking to execute a judgment of an appellate
court must first file a certified copy with the clerk of the trial court. This filing may be
made without prior notice to the adverse party.

2. Art. 2252, Delay before proceeding with execution: A judgment creditor may proceed
with the execution of a judgment only after the delay for a suspensive appeal therefrom
has elapsed; however, recordation of a judgment in the mortgage records prior to the
lapsing of the delay for a suspensive appeal does not begin proceedings for the execution
of the judgment.

3. Art. 2253, Writ from clerk to sheriff: At the request of a judgment creditor, the clerk
shall issue a writ bearing his signature, the seal of the court, and the date, and directing
the sheriff of the parish where the judgment is executed to enforce it in the manner set
forth in the writ. Concurrent writs may be directed to sheriff’s in several parishes.

4. Art. 2254, Execution by sheriff; return; wrongful seizure: The sheriff shall proceed
promptly to execute the writ and make a return to the clerk who issued it, stating the

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 manner in which it was executed. Sheriff has no liability to the debtor or third party for
any wrongful or improper seizure that is described in the writ.

II. Notice and Due Process Under the Federal Constitution

A. If a person has an ownership interest in the property - must give notice.

B. If the person or organization that has an interest in the property can be reasonably identified from
the records then the Sheriff must give notice before seizing.

C. Mennonite notice cannot be waived.

III. Execution of Foreign Judgments (Out of State)

A. Art.2541: Seek recognition of foreign judgment (another state, territory, or federal court) by
ordinary process, or

B. La. R..S. Section 13:4241 “Enforcement of Foreign Judgments Act”

1. Annex authenticated copy of foreign judgment to ex parte petition and file affidavit with
last known address of the judgment debtor and the judgment creditor.

2. Clerk sends notice (and creditor may also) to debtor.

IV. Making Out of Parish Judgments Executory

A. File an ex parte petition annexing a certified copy of the judgment and praying that the judgment
be made executory. The court will immediately render and sign the judgment and enforcement
proceeds.

V. Judgment Debtor Examination

A. An unpaid judgment creditor may serve a “Judgment Debtor Rule” on the debtor and require him
to disclose his assets. On motion of judgment creditor, court may permit deposition of a third party
to aid in execution of judgment (C.C.P. Art. 1433).

B. Procedure (Judgment Debtor Rule)

1. File motion for examination of judgment debtor; may include request of judgment debtor
to bring financial books and records.

2. The court orders judgment debtor to appear in court with records not less than 5 days
from the date of service of the motion and order.

3. Judgment debtor appears and is questioned under oath; failure to appear is punishable as
a contempt.

4. Costs associated with exam are taxed against the judgment debtor unless court determines
the exam was unnecessary.

VI. Execution of Money Judgments

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A. Record all judgments first. This makes the judgment executory by recording it in the parish
records and then start execution. But, if outside the parish that rendered the judgment then must
file petition to make it executory in that parish.

B. Do a judgment debtor examination if not sure all the property is in one parish.

C. Time delay from notice of the signing of the judgment:

1. Art. 1913-clerk mails it unless and then time begins to run for taking an appeal. But, if it
is a default judgment and D was not served personally with the original citation then
service by sheriff either personal or domiciliary or through Sec of State if originally
served that way. Failure to personally serve when required makes notice defective.

D. Time delay before can start execution: Have to wait until suspensive delay period runs before
initiating execution.

1. From notice to file JNOV - 7 days exclusive of legal holidays.

2. Time delay to request an appeal - suspensive is 30 days and devolutive is 60 days.

3. A devolutive appeal does not suspend execution of a judgment. If appellant is successful

on appeal can only get the price of the sale back and nothing else unless it was a wrongful
seizure then damages and attorney fees.

E. Start execution by writ of fieri facias (FIFA) C.C.P. 2291.

F. Seizure made. C.C.P. 2254. (When the Sheriff seizes in the books it is constructive seizure.)

G. Notice of seizure served on the debtor and others who have requested notice. Sheriff must make
effort to locate and notify all persons that are reasonably ascertained from the mortgage records.
C.C.P. 2293 and R.S. 13:3886 (May not be waived - Mennonite notice).

H. Three day delay prior to advertisement. C.C.P. 2331.

I. Advertisement ordered. C.C.P. 2331, R.S. 43:202 followed:

1. Movable, 1 ad at least 10 days prior to sale.

2. Immovable, 1 ad at least 30 days prior to sale; 2nd ad not earlier than 7 days before nor
later than 1 day before sale.

J. Notice to appoint appraisers is served, not less than seven days prior to sale. R.S. 13:4363.

1. Appraisal can be waived, but if it is then judgment creditor cannot come back for a
deficiency judgment.

K. Appraisals made. R.S. 13:4365.

L. Appraisals delivered to Sheriff not less than 2 clear days prior to sale. R.S. 13:4363.

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 M. Judicial sale takes place (adjudication). C.C.P. 2371.

1. Debtor has right to choose the order in which the items will be auctioned except that a
judgment creditor can direct the sale of mortgages or privileged property; and may file
motion for release of items of property if seizure is excessive.

2. The property must sale for at least 2/3 of its appraised value or there is no sale and it must
be re-advertised and second auction held. At the second auction, the property may be
sold for any price, e.g., whatever it brings.

3. If the price bid at the first and subsequent offering is insufficient to pay sheriff’s fee plus
all liens superior to that of seizing creditor, property shall not be sold. C.C.P. Art. 2337.

4. If there is a security interest, mortgage, lien, or privilege superior to that of the seizing
creditor, the purchaser pays only that amount of the purchase prices which exceeds any
such superior interest. (C.C.P. Art. 2374). The purchaser is then responsible for paying
the superior interest and, if he fails to do so, the superior interest holders can enforce
under the mortgage enforcement procedures (ordinary or executory) C.C.P. Art. 2378.

a. Example: $100,000 is the value of judgment debtor’s seized home, $60,000 is

the existing superior mortgage, $80,000 is what the purchaser paid for the home
at the sheriff’s sale. $20,000 is amount purchaser pays to sheriff and purchaser
must then pay $60, 000 to the superior mortgage holder.

N. Sheriff prepares sale, R.S. 13:4353 and records R.S. 13:4356.

1. Sheriff distributes the funds paying off the higher ranking creditors first, e.g., seizing
creditor, inferior creditor, and, if anything remaining, judgment debtor.

O. Sheriff makes return on writ. C.C.P. 2343.

P. Prescription, R.S. 9:5622 (2 years) and R.S. 9:5632 (5 years).

VII. FIFA

A. Good for one year to seize things.

B. Once seizure is effected then good until debt is paid.

C. Appraisement cannot be waived.

VIII. Garnishment Under FIFA

A. Property in the hands of third parties, such as wages and bank accounts, may be garnished through
use of garnishment under a writ of FIFA.

B. Procedure:

1. File and request writ of FIFA in parish of proper venue- parish where the garnishee (e.g.
bank or employer) may be sued under Article 42 only or 77.

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 2. File petition for garnishment and garnishment interrogatories.

3. Serve citation, petition, interrogatories, and notice of seizure on garnishee. Garnishment

takes effect once service is effected upon garnishee and don;t have to serve the judgment
debtor.

4. Garnishee has 15 days to answer interrogatories. Failure to timely answer is prima facie
proof garnishee has the property or is indebted to the judgment debtor. The garnishee
will then be held personally liable.

5. When the garnishee admits in his answer that he has the judgment debtors property or is
indebted to him, the court orders the garnishee to deliver the property or pay the
indebtedness to the sheriff when due.

6. If answers are not sufficient then the judgment creditor can traverse.

7. When wages are garnished, the first 75% of disposable earnings is exempt from seizure.

C. In city court have 10 days to answer interrogatories.

D. Only one garnishment at a time can be paid. Can have several garnishments pending, but only one
at a time.

E. Child support enforcement garnishments have priority over all other garnishments.

F. The state expressly waives any type of immunity from garnishment proceedings for state
employees.

G. Cannot garnish certain things.

IX. Execution Non-Money Judgments

A. Writ of Possession

1. A judgment of possession is executed by a writ of possession which directs the sheriff to

deliver movable property or compels the party in possession of immovable property to
vacate (C.C.P. Art. 2501).

B. Writ of Distringas

1. If a judgment orders the delivery of a thing which the sheriff cannot seize because
defendant has concealed or removed it from the jurisdiction of the court or judgment
orders defendant to do 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 defendant or to hold him in
contempt or to award damages to the party entitled to performance (C.C.P. Art. 2502).

2. Use this when a person will not comply with a court ordered non-money judgment.
C. Specific Performance

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 1. If a judgment is for specific performance and a party fails to comply, the court may direct
the sheriff or some other person to perform the act with the same effect as if done by the
party, at the cost of the disobedient party (C.C.P. Art. 2504).

SUMMARY AND EXECUTORY PROCEEDINGS

I. Summary Proceedings (C.C.P. Arts. 2591-2596)

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

B. May be used only for trial or disposition of the following matters (C.C.P. Art. 2592):

1. Incidental action arising in the course of judicial proceeding, including the

reasonableness of attorney fees;

2. Application for a new trial;

3. Exceptions, contrary motions, rules to show cause;

4. Action against surety on a judicial bond;

5. Homologation of judicial partition, tableau of distribution, or account filed by legal

representative;

6. Habeas corpus, mandamus, or quo warranto proceeding;

7. Determination of the rank of mortgages, liens, and privileges on property sold by sheriff;

8. Child custody, alimony, and child support;

9. Action to annul a probated testament under article 2931;

10. An action for a written accounting;

11. All other matters in which the law permits summary proceeding to be used.

C. Commenced by filing contradictory motion or a rule to show cause or by petition if it is a habeas

corpus, quo warranto or mandamus proceeding.

II. Executory Process (C.C.P. Arts. 2631-2783)

A. Petition, Seizure, and Sale (C.C.P. Art. 2631)

1. Under the rules of executory process, there can be rapid foreclosure and certain property
may be sold without obtaining a personal judgment against the debtor.

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 2. Can only go after the property that is listed in the mortgage, e.g., car, boat, motorcycle,
stereo, etc...

3. Usually use this is loan type situations where there is collateral on the property.

B. Requirement

1. A mortgage executed by authentic act (i.e. in the presence of a notary and two witnesses),
or a security agreement under Chapter 9 of the Louisiana commercial laws (which need
not be executed before a notary) containing a confession of judgment clause. If movable
property, may be private signature duly acknowledged or by authentic act.

2. Chattel mortgage is on moveable property.

3. Conventional mortgage is on immovable property.

4. Confession of judgment must be in the mortgage to be able to use this type of proceeding.

C. Notice and appraisement

1. Demand for payment notice can be waived.

2. This is not Mennonite notice being waived. The notice being waived is the 3 day delay
notice.

3. Appraisement can be waived. If appraisement is waived cannot come back for a

deficiency judgment.

D. Procedure

1. File a petition praying for seizure and sale and include all authentic evidence. Note that
“every link in the chain” of evidence must be in authentic form except facts as to the
identity of the proper defendant, taxes due, insurance, etc., or evidence the law expressly
treats as authentic, or where the law waives the requirement.

2. Note: an executory proceeding may be brought against the surviving spouse (without
naming the heirs), the heirs or legatees (if the mortgagor is dead), or the attorney
appointed to represent an absentee or a succession (where no succession representative
has been appointed), or a corporation or partnership (upon whom service cannot be
made).

3. Once the petition has been filed, the clerk of court issues notice of demand of payment to
the defendant who is given three days (exclusive of holidays) in which to pay the debt.
This notice can be waived in the debt instrument and usually is.

4. Execution of a writ of seizure and sale. The sheriff seizes the property and the defendant
must be given written notice of the seizure. This cannot be waived.

5. The sheriff provides Mennonite notices as with seizures under a writ of FIFA.

15
 6. At this point the debtors only recourse is to seek to enjoin the seizure, or a suspensive
appeal. An injunction can be granted upon a showing that:

a. The debt has been extinguished or

b. Is unenforceable or
c. That proper executory process procedure (e.g. lack of “authentic evidence”) has
not been followed.

7. Appeal- a suspensive appeal (requiring bond to be posted) may be taken by the debtor
within 15 days of the signing of the order directing issuance of the writ of seizure (C.C.P.
Art. 2642).

8. Note: A claim that attorney fees stipulated in the mortgage or privilege are unreasonable
is not grounds for injunction but must be raised by rule to show case filed at least 10 days
before sale, and heard before sale, or as defense to deficiency judgment proceeding after
sale. A second mortgagee may contest fees by intervention in the foreclosure.

9. An auction is then run according the rules provided for foreclosure sales under execution
of a judgment (writ of fieri facias), except that the property need not be appraised if
appraisal is waived in the mortgage. Note: Seized property subject to LCC need not be
appraised prior to sale (C.C.P. Art. 2723).

10. Prior to sale the seizing creditor should give notice to all junior lien holders (and property
owner if different from mortgagor) of the seizure and sale.

11. If the mortgagor has sold the property seized to a third party, that partys rights are to pay
the debt, enjoin the sale on any ground set forth in (e) above or that mortgage not
recorded, or intervene to claim proceeds equal to his improvements to property (C.C.P.
Art. 2703).

E. Can have an executory proceeding converted into an ordinary proceeding, but cannot convert an
ordinary proceeding into an executory proceeding.

F. If too much property has been seized the debtor can go back into court and have the executory
process amended to sell on what will pay off the debt.

III. Deficiency Judgments

A. Definition

1. A deficiency judgment is obtained by suit to collect the balance due if the proceeds from
the sale of the debtors property in an executory proceeding are insufficient to satisfy the
debt. The Deficiency Judgment Act does not apply to sales in connection with Chapter 9
of the UCC.

B. Requirement (C.C.P. Art. 2771)

1. Generally, an appraisal must have been made or the creditors right to a deficiency
judgment is waived, unless the non-appraisal sale was made through a major stock
exchange, foreclosure was pursuant to a mortgage in a commercial transaction, or some
other exceptions created by the Louisiana Deficiency Judgment Act is satisfied (La. R.S.
Section 13:4106).
16
 C. Procedure (C.C.P. Art. 2772)

1. Convert executory proceeding into an ordinary proceeding or file a separate suit. In either
case, ordinary process applies.

2. Debtors may raise affirmative defenses (like set off) to action for deficiency, but may not
raise defects in executory process as a defense.

D. What has to be proved

1. Existence of obligation;

2. There is a deficiency due; and

3. The property sold was benefit of appraisal.

CONSERVATORY WRITS

I. Writ of Attachment

A. A writ of attachment may be obtained when the plaintiff claims an interest in property and the
defendant 1) is concealing himself to avoid service of citation, or 2) disposing of or granting a
security interest in property to give an unfair privilege to one creditor or to place it beyond the
reach of his creditors, 3) about to convert his property into money or evidence of debt with the
intent to place it beyond the reach of his creditors, or 4) is leaving the state to avoid execution of a
judgment, or 5) is a nonresident who has no duly appointed agent for service of process in the
state. When this is the ground for the writ, venue is at situs of the property (C.C.P. Art. 3545).

B. Can use this in any action for a money judgment.

C. Security is required for the amount of the claim. Out of state defendant then only have to put up
$250.00 for security.

II. Sequestration (C.C.P. Art. 3571)

A. Writ of sequestration may be obtained when the plaintiff claims to own, possess, or have a
privilege, mortgage, or security interest on the property seized and it is within the power of the
defendant to conceal, dispose of, waste, or remove the property from the parish.

B. Security in amount to compensate defendant for wrongful seizure must be furnished, but no
security is required to enforce a lessors privilege.

C. A lessor’s privilege may be obtained under this article.

D. Do not have to show intent on the D to do the things alleged.

III. Miscellaneous for Attachment and Sequestration Writs

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 1. To attack the writ file a motion to dissolve the writ. If writ was wrongfully issued then
can sue for damages.
2. Have to file a verified petition or separate affidavit. Can get the writ before the petition is
filed with permission of the court.

3. A creditor who seizes property under either an attachment or a sequestration acquires a

privilege on it from the time of seizure if he obtains a final judgment in his favor.

4. Neither property attached nor property sequestered may be sold before final judgment.

5. No time delays in seizing and selling perishable items.

6. Have to state specific facts as to why wanting a writ.

IV. Injunctive Relief

A. Irreparable Injury, Loss or Damage

1. Where irreparable injury, loss or damage may otherwise result to the applicant, the court
shall issue an injunction upon application by petition. Irreparable injury means one that
cannot be compensated by money damages.

2. Standard of proof is preponderance of the evidence.

3. Cannot get injunction to stop state spending.

B. Temporary Restraining Order (TRO)

1. The court may issue a temporary restraining order, without a contradictory hearing:

a. Temporary restraining order may be granted without notice and expires by its
terms, not to exceed ten days. For good cause shown, a restraining order may be
extended by the court.

b. In a suit for divorce, a temporary restraining order issued in conjunction with a

rule to show cause for preliminary injunction prohibiting a spouse from
disposing of, or encumbering community property, harming the spouse or a
child, or removing a child from the courts jurisdiction remains in force until a
hearing on the preliminary injunction (C.C.P. Art. 3604).

c. If no notice was given attorney must state in writing effort made to give notice
or reasons supporting as to why notice should not be given.

d. File verified petition and attorney certification regarding efforts to give notice.

e. Court will appoint an attorney for an absent D.

f. If wrongfully issued D can sue for damages.

C. Preliminary Injunction

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 1. Preliminary injunction requires notice and hearing, and trial on its merits.

2. The hearing must be scheduled not less than 2 nor more than 10 days from service of
notice.

D. Permanent Injunction

1. Permanent (or “final”) injunction is the “third stage of the rocket,” coming after full trial
on the merits.

E. Appeals

1. There is no appeal from a TRO. An appeal may be taken from a judgment relating to a
preliminary injunction within 15 days of written judgment. An appeal may be taken from
a judgment related to a final injunction according to the normal rules for appealing
(C.C.P. Art. 3612).

SPECIAL PROCEEDINGS

I. Declaratory Proceeding

A. Courts of record within their respective jurisdiction may declare rights, status, and other legal
relations whether or not further relief is or could be claimed.

B. The declaration shall have the force and effect of a final judgment or decree.

C. These can be appealed.

II. Extraordinary Remedies

A. Habeas Corpus
1. A writ commanding a person who has another in his custody to produce him in court and
state the authority for the custody (C.C.P. Art. 3821). (E.g. adoption dispute).

2. Venue: Where defendant is domiciled or where detainee is in custody.

B. Mandamus

1. A writ directing a public officer to perform a ministerial duty required by law or directing
a corporation to perform a duty required by charter, bylaws, or law or to recognize the
rights of its members or shareholders (C.C.P. Arts. 3861-3865).

C. Quo Warranto

1. A writ directing an individual to show by what authority he claims to hold public or

corporate office (C.C.P. Art. 3901).

III. Concursus (C.C.P. Art. 4651)

19
 A. Definition: A proceeding bringing in two or more persons having competing claims to money or
property and requiring them to assert their claims.

B. Used to get all parties to a claim to the court.

C. Done by petition and service with normal times delays for service and answer.

D. No exceptions or responsive pleadings. Only an answer allowed.

E. If D fails to answer the court can order upon ex parte motion a limiting answer order. If no answer
after this then D cannot bring any kind of further action on the same issue.

F. Venue: Any parish proper under Article 42 as to any claimant, except that actions involving
immovables must be brought where the immovable is located (C.C.P. Art. 4653).

G. Every defendant is considered a plaintiff.

H. Disputed funds are often placed in the registry of the court.

REAL ACTIONS

I. Petitory Actions

A. A petitory action is one in which the plaintiff seeks a judgment declaring that he is the owner of
the property.

1. Note: If the defendant is in possession, the plaintiff is required to prove that he has title
good against world.

B. Requirements

1. The plaintiff must not have possession at the time of filing the suit; and

2. The defendant must be in possession or assert that he owns the property.

C. Venue

1. Where the immovable property is located or where the D is domiciled.

D. Plaintiffs Burden of Proof

1. If defendant is in possession, plaintiff must prove that he acquired ownership from a

previous owner or by acquisition prescription.

2. If defendant is not in possession, plaintiff must prove he has better title than defendant.
II. Possessory Actions

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 A. A possessory action is used when the plaintiff is in possession but is being disturbed. The
disruption can be either in fact (physical act) or in law (recordation).

B. In a possessory action title is not considered to be at issue.

C. Plaintiffs Burden of Proof

1. He has possession of the immovable or real right therein when disturbed;

2. He and his ancestors in title had quiet uninterrupted possession for more than a year
immediately prior to the disturbance, unless evicted by force or fraud;

3. The disturbance was one in fact (eviction or force) or in law (execution, recordation or
registry of instrument asserting ownership); and
4. Instituted action within one year of disturbance.

D. Notes

1. If the defendant asserts that he is the true owner, the action is converted into a petitory
action.

2. Judgment notifies the defendant that he has 60 days to assert ownership in a petitory
action or be precluded from ever asserting ownership.

3. Damages may be sought.

4. Venue is same as in petitory action.

5. Cannot cumulate petitory and possessory actions not can plead them in the alternative.

6. Can get sequestration and injunctive relief to stop something like timber from being taken
from the land.

E. Appeal

1. Suspensive - the loser has 30 days in which to take a suspensive appeal.

2. Devolutive - the loser has only 30 days in which to take a devolutive appeal.

III. Hypothecary Action

A. An action to enforce a mortgage by executory or ordinary process (just know the term).

B. Foreclosure proceedings mainly.

C. Do not have to name a third party (if one) but must give third party notice.

IV. Boundary Actions

A. An ordinary action to fix boundaries between landowners.

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 B. The court appoints a surveyor.

V. Notice of Pendency of Action

A. This is a special type of notice of us pendens (cf. general us pendens under Arts. 53 1-532)
applicable to actions pending in a Louisiana court, state or federal, affecting tide to, or asserting a
mortgage or privilege on immovable property. The purpose is to give third parties notice of the
pending action (C.C.P. Arts. 3751-3753).

B. Procedure

1. Written notice, signed by the party or counsel filing the notice, setting forth the court,
title, docket number, filing date, and object of the demand in which the action is pending.

2. File notice with Recorder of Mortgages for parish where the property is situated.

3. When judgment is rendered in the action against the party who filed the notice of lis $
pendens, the judgment shall order cancellation of the notice at the expense of the party
who filed it.

4. Note: To compel cancellation of an improperly filed notice, bring mandamus action

against the Recorder of Mortgages for the parish where the notice was filed.
VI. Eviction

A. Generally (C.C.P. Arts. 4701-4705)

1. When lessees right to occupancy ceases, lessor delivers written notice to vacate within 5
days of delivery.

2. If lessees whereabouts are unknown, notices and pleadings may be attached to the door.
Notice to vacate may be waived in the lease.

B. Procedure (C.C.P. Arts. 4731-4735)

1. If lessee fails to vacate, lessor may serve rule to show cause to deliver the premises.
Again, can attach to door.

2. Lessor may also immediately take possession on reasonable belief that the premises have
been abandoned.
3. The rule is heard no earlier than the third day after service.

4. If the lessee fails to vacate within 24 hours of judgment, the court must issue warrant
directing the sheriff to take possession. The sheriff may break down the door.
5. No suspensive appeal unless defendant filed an answer to the petition and posted appeal
bond within 24 hours of judgment of eviction.

C. There is a lessor’s privilege on a renter’s property which makes it subject to seizure or a vendor’s
lien.

VII. Expropriation
22
 A. Where the state or political subdivision is taking one’s property for public use.

B. Have to give notice to the property owner of the reasons for the taking and the compensation being
considered.

C. Plaintiff (state) file a petition where the land is situated or one owner in two parishes then where
the owner is domiciled.

D. Can only have a jury trial on the compensation issue.

E. No suspensive appeal allowed and only reviewable thing is the compensation.

F. Severance damage is where the un-taken property is damaged. Property owner is the plaintiff.

G. Inverse condemnation: think of the I-10 home owners whose homes where damaged by the work
on the extension of the interstate. Property owner is the plaintiff.

VIII. Partition of Property Between Co-Owners

A. Ordinary proceedings

1. Venue is where all or part of immovable is located, or if only movables, where any
movable is located (C.C.P. Art. 4603).

2. Can be done judicially or non-judicially. If parties cannot agree or one is absent or a

dissenter or a minor or a mental incompetent then must have a judicial partition.

B. Partition may be:

1. In kind, if divisible by nature and can be divided equally among the parties. Court favors
this kind of partition.

2. By licitation - public auction after advertisement and divide the proceeds.

3. If co-owner is absent must be done by verified petition.

4. Co-owner can be reimbursed for expenses.

DIVORCE AND ANNULMENT OF MARRIAGE

I. Venue

A. Parish where either party domiciled or parish of last matrimonial domicile. Cannot be waived and
judgment by court of improper venue is absolute nullity.

II. Appeal

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 A. Same 30 day delay as suspensive appeal, and judgment is suspended regarding annulment,
divorce, partition of community property, and settlement of claims arising from marriage, but no
bond need be posted (C.C.P. Art. 3942).

B. But also only a 30 day delay to appeal judgment awarding custody or alimony, but appeal does not
suspend that portion of judgment (exception to 60-day devolutive appeal rule).

III. Support Payments

A. When payment on judgment in arrears, move for contradictory hearing (rule to show cause).

IV. Default for Divorce

A. Under Civil Code Article 103(1) when the grounds are living apart for six months as of filing date,
the defendant may acknowledge receipt of certified copy of petition, waive citation, service, and
trial by notarized affidavit, and have default taken against him by affidavit (C.C.P. Arts. 174)1;
1702(E)).

V. Injunctive Relief

A. Either party to an action for divorce may obtain injunctive relief, without bond, to restrain
alienation or encumbrance of community property, or abuse of child or spouse, or permitting
collection of personal property in the company of a law enforcement officer.

VI. Article 102 Divorce

A. Divorce under Civil Code Art. 102 (filed before passage of 180 days).
B. Petition shall contain allegations of jurisdiction and venue (where either party domiciled or last
matrimonial domicile) and be verified by affidavit. Defendant is served with a statutory notice
similar to citation, but no answer required. Defendant may execute written waiver of service.

C. File rule to show cause alleging service of petition, passage of 180 days from service and that
spouses have continued to live apart, verified by affidavit (C.C.P. Art. 3952). Defendant may
execute written waiver of service.

D. Judgment is absolutely null if 180 days have not passed from service or written waiver of service.

E. Action deemed abandoned if rule to show cause not flied within two years of service of petition or
written waiver of service.

F. Petition may be voluntarily dismissed upon joint application of parties or contradictory motion of
the plaintiff. Reconciliation during the 180 day period, if proven, will defect.

G. Lis Pendens - the defendant spouse may also file a petition for divorce under Civil Code Article
102. The exception of us pendens is not applicable to action for divorce but is applicable to
matters incidental to divorce (C.C.P. Art. 3955).

H. Summary: For divorce under Civil Code Article 102

1. Petition for divorce;

24
 2. Sheriffs return or waiver of service (wait 180 days);

3. Rule to show cause and affidavit;

4. Sheriffs return;

5. Another affidavit of mover, executed after filing rule, that the parties have lived apart
since petition and the mover desires to be divorced.

TUTORSHIP

I. Venue

A. Petition for appointment of a tutor is filed in parish of surviving parent (if one parent is dead), or
custodial parent (if parents are divorced or judicially separated), or where minor resides. If
divorced parents have joint custody, they must petition jointly for appointment as co-tutors in the
court where divorce or judicial separation granted, or where minor domiciled or resides (C.C.P.
Art. 4031).

II. Types

A. Natural - surviving parent;

B. By will - nomination in will or authentic act;

C. Legal - appointed by court from among relatives;

D. Dative - where minor has no parents or relatives.

III. Powers

A. Tutor is fiduciary and cannot contract with the minor, must post security to cover value of
property (unless “natural” tutor or unless court dispenses with requirement) and can sell and buy
property, etc.

IV. Procedure

A. File petition in court of proper venue.

B. Take oath.

C. Cause an inventory to be taken or a detailed descriptive list to be prepared by a notary.

D. Furnish security.

E. Appoint an undertutor who shall act for the minor whenever the minors interest is opposed to that
of the tutor.

INTERDICTION
25
I. Filing of Petition: Petition may be filed by a relative or any person.

II. Venue: Domicile of interdict or parish of residence if he owns property in Louisiana; or where he may be
found, if he owns property in the state but has no domicile or residence.

III. Curator Appointed: Much like a tutor.

IV. Type of Curator: May be curator of person, or curator of property, in “the least restrictive manner.”

V. Hearing can be closed to the public.

SUCCESSION AND PROBATE PROCEEDINGS

I. Introduction

A. Unless the decedent does not have a Louisiana domicile, all successions must be opened in the
parish of the decedents domicile. If the decedent is a non-domiciliary, the succession may be
opened in any parish where the decedent has immovable property or if none, in any parish where
the decedents movables are located. These are rules of Jurisdiction, not venue. (See Art. 44) An
affidavit is needed to prove death, domicile, and heirship.

II. All Testate Successions: Probate-proving the Will

A. Procedure

1. Any person with an interest in the will may request probate

2. File petition praying that testament be probated and executed.

a. Attach the affidavit of death, domicile, and heirship, and present the will.

3. If the will cannot be found, file a petition for a search in which an appointed notary looks
for the will. When the will is found, it is produced in court, but if it cannot be found, the
succession passes by intestacy.

4. All wills in a form valid in Louisiana may be proved by affidavit unless the court wishes
to hear testimony (or the genuineness of the will is in dispute).

a. Olographic - has to be in the person’s own handwriting and signed by the

person. Need two credible witnesses identify handwriting.

(1) Can a blind or deaf person make out this type of will or be a witness?
Most likely not.

b. Notarial testaments, nuncupative testaments by public act and statutory

testaments do not need to be proved. Upon production of the testament, the

26
 court orders it filed and executed and the order has the effect of probate. (C.C.P.
Art. 2891).
c. Nuncupative testament by private act requires three competent witnesses present
when made. Witnesses must testify that they:

(1) Recognize the testament as being the same which was written or caused
to be written by the testator either in their presence or out of their
presence and which he declared to them contained his testament; and

(2) Recognize their signatures (or one signing for them) and that of the
testator. C.C.P. Art. 2884.

d. Mystic testament requires three witnesses (one of whom may be the notary) who
were present at the act of superscription. Witnesses must testify that they:

(1) Recognize the sealed envelope presented to them is the same that the
testator delivered to the notary in their presence declaring to the notary
it’s the testator’s will; and

(2) Recognize their signatures (or one signing for them) and the notary’s in
the act of superscription. C.C.P. Art. 2885.

e. Probate of nuncupative testament by private act or mystic testaments when

witnesses are dead, absent, incapacitated or cannot be located. (C.C.P. Art.
2886)

(1) If some witnesses are missing, prove by testimony of witnesses

residing in the state and available.

(2) If notary and all witnesses are missing, prove by the testimony of 2
credible witnesses who recognize testators signature or notary before
whom the act of superscription of the mystic testament was passed or
the signatures of 2 of the witnesses to the nuncupative testament by
private act or the act of superscription of the mystic testament.

5. Proces-verbal prepared, or if will proved by affidavit, judge signs order. A proces-verbal

is a public inventory of succession property taken by a court-appointed notary in the
presence of 2 witnesses.

6. The will is then ordered recorded, filed and executed.

B. Challenge
1. If the ex parte probate is challenged there is a contradictory hearing and the burden of
proving the authenticity and requisites of the will is on the proponent of the will (C.C.P.
Art. 2903).

C. Annulment (C.C.P. Art. 2932)

1. Plaintiff always has the burden of proving the invalidity of a notarial testament, a
nuncupative testament by public ad or a statutory testament. (For other testaments,
defendant has burden of proof for three months after probate; after that, plaintiff has the
burden of proof).
27
 D. Foreign testament

1. A valid out-of-state testament will be recognized in Louisiana, at least as to formal

validity. Louisiana extends full faith and credit to probate in another state: Uniform
Probate Law.

III. Simple Possession Without Administration

A. Intestate Successions

1. Procedure

a. File a verified petition for possession along with the affidavit of death, domicile,
and heirship.

b. An inventory or sworn descriptive list of assets (and usually liabilities also) is

then prepared.

c. File inheritance tax return and pay the taxes shown as due on the return.

d. A judgment of possession can then be granted ex parte.

e. Note that if there is a surviving spouse, he or she must join in this proceeding.

2. Available (and heirs shall be recognized) when: All heirs are competent, accept
succession, and the succession is relatively free of debt (C.C.P. Art. 3001); or

3. Available (and heirs may be recognized) when: No creditor objects and the petition is
filed by all competent heirs, if all of them accept the succession and the legal guardian of
all incompetent heirs ( C.C.P. Art. 3004).

4. Creditors have three months from the date of the judgment of possession in which to file
a claim and the heirs must then post a bond to cover the claim or the judgment will be
dissolved (C.C.P. Art. 3007).

B. Testate Successions

1. For a testate succession the will must first be probated (proved).

2. An ex parte petition for possession is filed by the legatees if all legatees are either
competent or acting through qualified legal representatives, all residual legatees accept
the succession, and no creditor has demanded administration.

3. An inventory or sworn descriptive list of assets (and usually liabilities also) is then
prepared.

4. File inheritance tax return and pay the taxes shown as due on the return.

5. The executor must join in the petition, and if no creditor requires an administration, then
judgment of possession may be granted.
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IV. Administration of Successions

A. The executor named in the will is appointed (by issuance of letters testamentary) unless
disqualified (C.C.P. Art. 3082). If no executor is named in the will or the one named is
disqualified, the court can appoint a dative testamentary executor. (C.C.P. Art. 3083)

B. Disqualifications

1. Include persons who are under 18, interdicted, convicted felons, a non-resident who fails
to appoint a resident agent, who have bad moral character (C.C.P. Art. 3097).

C. When the court must appoint an executor or administrator, preference is given in the following
order:

1. The best qualified among the surviving spouse, competent heirs or legatees, or the legal
representatives of any incompetent heirs or legatees;

2. The best qualified of the nominees of the foregoing;

3. The best qualified creditor of the deceased or the estate or owner of immovable property
with deceased.

D. The court may remove a succession representative who fails to qualify or becomes disqualified on
its own motion or the motion of an Interested party.

E. Duties and Powers (C.C.P. Art. 3191)

1. Is a fiduciary and must collect, preserve, and manage succession property as a prudent
administrator.

2. The executor or administrator receives compensation of 2-1/2% of the value of the

succession, or more in the courts discretion, unless previously set in the testament
appointing the executor or the agreement between the administrator and heirs. (C.C.P.
Art. 3351).

3. Files inventory or sworn descriptive list.

4. The representative has the duty to act as a fiduciary and has full power over the property
during the period of the administration.

5. Files tableau of distribution for homologation (i.e. a judgment authorizing the succession
administrator to pay the debts). A tableau of distribution is a list of changes and debts the
succession representative proposes to pay.
6. Files Final Account.

F. Enforcing Claims

1. A creditor may suspend prescription against his claim for up to 10 years by delivering
personally or by certified or registered mail a formal written proof of claim to the
succession representative or filing it in the succession proceedings. The proof of claim

29
 must contain: (a) the name and address of the creditor; (b) the amount of the claim and
factual basis; and (c) a description of the security, if any. If no succession opened, file in
mortgage records (which suspends prescription five years). (C.C.P. Art. 3245).

G. A creditor may not sue a succession representative to enforce a claim against the succession until
the representative has rejected the claim. Failure to act within 30 days Is a rejection (C.C.P. Art.
3246).

H. Heirs and Legatees put in possession by petition after homologation of final tableau of distribution
(or beforehand after contradictory hearings).

V. State Inheritance Taxes

A. Form must be filed and all taxes paid, prior to putting in possession.

B. Tax collector has two years to object.

VI. Small Successions

A. No immovable property, estate valued at $50,000 or less, and sole heirs are descendants,
ascendants, brothers or sisters, or surviving spouse.

B. Major heir and surviving spouse, if any, submit affidavit to inheritance tax collector of “death,
domicile, heirship” and the facts above.

C. Tax collector endorses affidavit showing no taxes due, and this affidavit is proof that heirs are
entitled to possession.

IN FORMA PAUPERIS

VII. In Forma Pauperis (waiver of costs for indigents)

A. Litigants can proceed without prepayment of costs if they are unable to prepay because of their
poverty.

B. Procedure:

1. Request in ex parte motion or in first pleading;

2. Affidavits of the litigant and a third person (other than the litigants attorney) attesting to
the litigants inability to prepay costs;

3. The opposing party or clerk of court may traverse and challenge the litigants right to
proceed in forma pauperis. However, only one rule to traverse, whether by the adverse
party or the clerk, will be allowed.

30