Louisiana Civil Procedure Ii

Front 1

Conservatory Writ

Back 1

The two conservatory writs are attachment and sequestration. The purpose is to preserve property pending the outcome of a judicial proceeding.
The conservatory writ preserves the status quo pending the outcome of the proceeding but does not transfer title; the plaintiff, if successful, must proceed to judicial sale of the property through a writ of fieri facias.

Front 2

What is a writ of attachment?

Back 2

Attachment is the seizure of any property belonging to the defendant to either:
(1) create quasi in-rem jurisdiction; or,
(2) to preserve property at issue pending the outcome of the proceeding.

Front 3

What are the grounds for issuance of a writ of attachment? (3541)

Back 3

When suit is for a money judgment and the defendant has:
(1) avoids service of process,
(2) disposes of property with the intent to defraud creditors,
(3) is about to liquidate property to keep out of the hands of his creditors,
(4) is about to abscond from the state, or
(5) is a nonresident who does not have an appointed agent for service of process.

Front 4

What is sequestration?

Back 4

The writ of sequestration permits one who claims the ownership, the right to possession, or a lien upon property to have the property seized and held pending the outcome a suit to establish his rights in the property.

Front 5

What are the grounds for the issuance of a writ of sequestration? (3571)

Back 5

The writ of sequestration can be issued if it is within the power of the defendant to conceal, dispose of, or waste the property or its revenues, or remove the property from the parish during the pendency of the action.

Front 6

What are the rules for non-resident attachment?

Back 6

A non-resident's property in LA can be attached by a creditor to obtain jurisdiction over the property. Venue is proper where the property is located. The plaintiff must post security in the amount of $250.

Front 7

How much does the plaintiff have to provide for security for the issuance of a writ of attachment?

Back 7

The amount of the plaintiff's demand, exclusive of interest and costs.

Front 8

How much security is required from the applicant for the issuance of a writ of sequestration?

Back 8

The court determines the amount required by the applicant in the amount to protect the defendant from damage resulting from a wrongful issuance. A writ of sequestration from a lessor's privilege does not require the applicant to post security.

Front 9

What are the grounds for the issuance of an injunction?

Back 9

An injunction shall be issued when:

-irreparable injury,
-loss, or
-damage

will result to the applicant.

Front 10

What is required for the issuance of a TRO?

Back 10

The TRO can be issued incidental to an ordinary action for an injunction in a summary proceeding when it clearly appears from specific facts in the verified petition or supporting affidavit that shows immediate and irreparable injury, loss, or damage will result before the adverse party can be heard from in opposition, and the applicant certifies to the court the efforts made to give notice or the reasons why notice should not be required.

The plaintiff must post security in the amount set by the court to protect the defendant wrongfully restrained.

The TRO expires in 10 days or shorter if stipulated by court. The Court can also extend the TRO for good cause for more periods, but cannot extend past 10 days per period.

A TRO cannot be appealed.

Front 11

What is required for the issuance of a preliminary injunction?

Back 11

A preliminary injunction proscribes the conduct pending in the trial on the merits of the injunction. The plaintiff must serve notice to the adverse party and shall be assigned for hearing between 2 and 10 days after service of notice on the adverse party.

The plaintiff must post security in the amount set by the court to protect the defendant wrongfully enjoined.

The plaintiff's burden for the issuance of a preliminary injunction is a prima facie case. If the relief sought requires an affirmative act by the defendant (mandatory injunction), the plaintiff is required to prove his case by evidence required at the trial on the merits.

Front 12

What is required to dissolve or modify a TRO or preliminary injunction?

Back 12

A person may move for the dissolution or modification upon two days notice or shorter if allowed by court. The motion will be heard expeditiousl as the ends of justice requires. The court may dissolve or modify on its own motion after notice and a hearing.

Front 13

What is executory process?

Back 13

Executory process is a special proceeding through which certain secured creditors may obtain speedy capture and disposition of the security provided by the defaulting creditor. The essence of executory process is that a creditor whose debtor has confessed judgment in advance may obtain immediate seizure and prompt judicial sale of the security by submitting sufficient proof to the court.

Front 14

What is required in the petition for a Creditor to foreclose using executory process?

Back 14

The creditor shall file a petition praying for the seizure and sale of the property affected by the mortgage or privilege. The creditor only needs to submit authentic evidence of the obligation and the security that secures it.