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La. Civ. Pro - Judgments
Louisiana Bar Prep
60
Law
Professional
06/19/2013

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Cards

Term
When can you get an interlocutory appeal?
Definition
irreparable injury can result from the granting of the jdmt

does not determine the merits
Term
What are the requirements for a final jdmt?
Definition
1. Signed by judge
2. clerk must mail the notice of signing of jdmt to all counsel
3. File a certificate of mailing in the recrod.
Term
Can a final jdmt be amended?
Definition
Yes, but the substance cannot.
Only error of calculation or to alter the language
Term
When is a partial final judgment a legit final judgment?
Definition
Typically not a final jdmt unless designated as a final jdmt by the court after an express determination there is no reason to delay.

If a partial jdmt is a final -->immediately appealable.
Term
How do you find out why a judge made a decision?
Definition
The ct shall issue fact and reasons for jdmt if requested by a party within 10 days of the mailing of the notice of signing of jdmt

If non-jury PI case the ct shall issue findings of fact, but not jdmt whether or not requested to do so.
Term
After jury trial, the ct must prepar and sign a jdmt within...
Definition
10 days
Term
After compromise agreement, the ct must prepar and sign a jdmt within...
Definition
20 days
Term
How do you determine right before a K has been breached?
Definition
Declaratory judgment

**can only affect parties
Term
What are the peremptory ground for a mtn for new trial?
Definition
1. Verdict clearly contrary to law and evidence
2. discovery of new evidence which could not have been found earlier
3. when a juror is bribed/compromised

**Verified affidavit for 2 & 3
Term
When for a motion for new trial be made?
Definition
7 das from MAILIN or SERVICE of notin of signing of jdmt
Term
What is the standard for a mtn for new trial?
Definition
the trial judge is free to evaluate the evidence without favoring either party, he may draw his own inference and conclusion and may evaluate the credibility of the witnesses.
Term
When can an action for annulment for vices of form be brought?
Definition
Any time and collaterally

Not allowed if ∆ voluntary acquiesced in the jdmt or was in the parish and did not attmept to enjoin
Term
What can be reviewed on appeal?
Definition
Law and facts
Fact finding not disturbed unless manifest error
Law findings determined by whether they are correct or incorrect
Term
What is an appeal of right to the court of appeals?
Definition
Any civil matter can be appeal to a court of appeals which will review the the law and questions of fact.
Term
When can you appeal to SCOLA?
Definition
At SCOLA's discretion - all cts
Disciplinary action against members of the bar
Appeal of right
Term
When is an appeal of right available to SCOLA?
Definition
A low or ordinance has been declared unconst
Death Sentence
Term
What is the procedure to get to SCOLA and when must it be filed?
Definition
Writ of certiorari - app to review a jdmt

30 days of mailing/service of jdmt & opinion by ct of appeal
or within 30 days of mailing of notice of denial of timely filed rehearing to ct of appeal
Term
What are the time limits for a devolutive appeal?
Definition
60 days from:

mtn for new trial/JNOV has elapsed
or
denial of a timely mtn for new trial/JNOV
Term
Is bond required for devolutive appeal?
Definition
No, bc the jdmt can be executed while the appeal is pending
Term
When is an appela premature?
Definition
When the court has not dispose dof all timely filed mtn for new trial/JNOV, but becomes effective when motions are denied.
Term
What are the time limits for a suspensive appeal
Definition
30 days from

the time for filing a mtn for new trial/JNOV has ELASPED
or
the denial of a timely motion for a new trial or JNOV is entered
Term
How much does a bond have to be?
Definition
equal to the amt of the jdmt including interset until the security is furnished excluding cots
Term
How much does a surety bond have to be?
Definition
ct can order it up to 150% of the jdmt
Term
Divorces always ____________appeals, custody and alimony are ____________ appeals.
Definition
Suspensive, devolutive
Term
How do you appeal from the trial ct?
Definition
Oral/written/petition
State the retunr date
amt of security
Clerk then mails the notice to the parties with estimated costs
Term
When must the costs be paid for an appeal from trial court?
Definition
20 days of the mailing of notice, or the trial ct may dismiss the appeal
Term
What is the return day and when is it?
Definition
Day by which the record has to be lodged with the appeals court

30 days from the date estimated costs are paid if no testimony
45 if there is

Only one 30 day extension allowed
Term
Does an appeal have to be answered?
Definition
No. unless he appellee wants the jdmt modified, revised or rev'd in part

Filed 15 days from return day or lodging of appeal
Term
While appealing the trial ct retains jx over a lot of things, but in particular...
Definition
ability to test solvency of the surety on the appeal bond.
Term
Will an appeal be dismissed if the record is shitty?
Definition
No, unless the shitiness is imputable to the appellant
Term
How long to file a mtn to dismiss an appeal?
Definition
w/in 3 days of the RETURN DAY or LODGING
Term
What happens if a suspensive appeal is filed late?
Definition
The appellee must raise the untimeliness is the mtn to dismiss, BUT the appeal ban still be devolutive if it was filed in the 60 days window.
Term
Can a TRO or prelim injuction be appealed?
Definition
TRO - no
Prelim - 15 days from order

*10 days if city/parish ct
Term
How long do you have to wait to execute a money judgment?
Definition
Until the time for takin a suspensive appeal has runt
Term
How do you execute a money jdmt?
Definition
File a writ of fieri facia (FiFa) which directs the sheriff to seize and sell
sheriff has 1 yr to seize and sell.
Term
Who has to get notice of seizure?
Definition
Debtor and occupants by personal or dom service

If can't find debtor serve atty
If can't find occupants post on door
Term
Who does the notice of seizure have to be filed with?
Definition
Record of mortgages
then send Mennonite notices to interested parties
file affidavit with clerk showing who received notice
Term
When ppty is sold at public auction how does notice have to be given?
Definition
If movable --> in local newpaper 10 days before sale

If immovable --> two ads in local newspaper required, 1st -> 30 days before sale
2nd -> 7 days before sale
Term
Immovable has to sell for ($)...
Definition
2/3 of the appraised value the first time, if unsold the next time it can sell for any price

If sheriff fees and superior creditors cannot be paid off, the ppty shall not be sold.
Term
How is ppty garnished?
Definition
Property in the hands of third paries may be garnished through use a writ of fifa

File and request a writ of fifa where the bank/employer is
File petition for garnishment and garnishment INTS
Serve citation, petition and INTs and notice of seizure to garnishee
Term
How long does the garnishee have to answer the INTs
Definition
15 days
Term
How much of wages can be garnished?
Definition
75% of disposable earnings
Term
How can a judgment creditor find out about a debtor's assets?
Definition
Judgment debtor rule requires the debtor to disclose his assets

1. File a mtn for examination of judgment debtor
2. Order to appear not less than 5 days from the date of service of the motion and order
Term
How is a money judgment revived?
Definition
Will prescribe after 10 years
Interested party fileds a ex parte motion brought in the ct where the judgment was rendered
Term
How to you compel a party in possession of immovable ppty to vacate or deliver movable ppty?
Definition
Writ or possession - directs the sherfiff to deliver movable property or compel the party in poss of immovable to vacate
Term
What do you do when there is a uncooperative judgment debtor or when debtor is trying to conceal or remove it from the jx?
Definition
Writ of distringas - used to distrain the ppty of a ∆,
or ot hold him in contempt,
or award damages to the party entitled to performance
Term
How do you execute foreign judgments?
Definition
1. Thru ordinary process --> bring ord proceeding against judgment debtor to hav the foreign jdmt recognized

2. Use the enfocement of foreign judgment act --> Annex authenticated copy of foreign jdmt to ex part petition and file affidavit with last know address of jdmt debtor and the jdmt creditor. The clerk sends notice, and 30 days after mailing its executed.
Term
How do you enforce judgment from different parishs?
Definition
To make it executory in another parish, file and ex parte petition annexing a certified copy of the jdmt and praying that the judgment be made executory. the ct will render and sign the jdmt and enforcement may proceed.
Term
What is a summary proceeding and Do you need a citation for summary proceedings?

How is it commenced?
Definition
proceedings conducted with rapidity and within the delays by court and formalities
No citation/peition

Commenced by filing a contradictory mtn or rule to show cause
Term
What are the most peculiar types of summary proceedings and why?
Definition
Habeaus corpus
mandamus
quo warranto

Only that require a petition everything else can be done on mtn

Get the highest preference on motion days

Commenced by peitition
Term
What is the most common type of summary proceeding
Definition
incidental questions - reasonableness of atty fees
Term
What is the requirement for exectuory process?
Definition
A confession of jdmt clause contained in either a mortgage/privilege executed by authentic act or a security agreement under Chapter 9
Term
What is the procedure for executory process?
Definition
File a petition praying for seizure and include all authentic evidence (note, bond, deb instrument) containing the confession of jdmt

Sheriff then seizes the ppty and the ∆ must be given written notice(cannot be waived) + Mennonite notices
Term
How does a jdmt debtor stop executory process?
Definition
Enjoin the seizure or a suspensive appeal

When using an injunction, debtor can argue the debt is extinguished, unenforceable or lack of proper procedure.

A suspensive appeal may be taken by the debtor within 15 days of the signing of the order directing issuance of the writ of seizure.
Term
If ppty goes up for auction by executory process, does it need to be appraised?
Definition
No, can be waived in the mortgage for immov.
Movables never need to be appraised.
Term
If the mortgagor sells the ppty seized to a TP, that party's rights are to...
Definition
pay the debt
enjoin the sale
or mortgage was not recorded
or to intervene to claim proceeds equal to improvements of the ppty
Term
Deficiency judgment
Definition
is obtained by suit to collect the balance due if the proceeds from the sale of the debtor's ppty in an executory pproceeding are insufficient to satisfy the debt.

**Deficiency jdmt act does not apply to UCC 9 items***
Term
What are the requirements for a deficiency judgment?
Definition
Must have an appraisal, or debtor's right to deficiency jdmt is waived unless there is an exception
Term
Is a deficiency judgment ordinary or executory proceeding?
Definition
Ordinary

Convert the executory proceeding to ordinary in order to get a deficiency judgment on the remainder not satisfied by executory process
Term
What kind of defenses can a debtor use for the deficiency jdmt process?
Definition
normal affirmative defense but they may not raise defects with the executory process
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