Term
| When can you get an interlocutory appeal? |
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Definition
irreparable injury can result from the granting of the jdmt
does not determine the merits |
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Term
| What are the requirements for a final jdmt? |
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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. |
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Term
| Can a final jdmt be amended? |
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Definition
Yes, but the substance cannot.
Only error of calculation or to alter the language |
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Term
| When is a partial final judgment a legit final judgment? |
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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. |
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Term
| How do you find out why a judge made a decision? |
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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. |
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Term
| After jury trial, the ct must prepar and sign a jdmt within... |
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Definition
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Term
| After compromise agreement, the ct must prepar and sign a jdmt within... |
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Definition
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Term
| How do you determine right before a K has been breached? |
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Definition
Declaratory judgment
**can only affect parties |
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Term
| What are the peremptory ground for a mtn for new trial? |
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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 |
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Term
| When for a motion for new trial be made? |
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Definition
| 7 das from MAILIN or SERVICE of notin of signing of jdmt |
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Term
| What is the standard for a mtn for new trial? |
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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. |
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Term
| When can an action for annulment for vices of form be brought? |
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Definition
Any time and collaterally
Not allowed if ∆ voluntary acquiesced in the jdmt or was in the parish and did not attmept to enjoin |
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Term
| What can be reviewed on appeal? |
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Definition
Law and facts
Fact finding not disturbed unless manifest error
Law findings determined by whether they are correct or incorrect |
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Term
| What is an appeal of right to the court of appeals? |
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Definition
| Any civil matter can be appeal to a court of appeals which will review the the law and questions of fact. |
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Term
| When can you appeal to SCOLA? |
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Definition
At SCOLA's discretion - all cts
Disciplinary action against members of the bar
Appeal of right |
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Term
| When is an appeal of right available to SCOLA? |
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Definition
A low or ordinance has been declared unconst
Death Sentence |
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Term
| What is the procedure to get to SCOLA and when must it be filed? |
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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 |
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Term
| What are the time limits for a devolutive appeal? |
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Definition
60 days from:
mtn for new trial/JNOV has elapsed
or
denial of a timely mtn for new trial/JNOV |
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Term
| Is bond required for devolutive appeal? |
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Definition
| No, bc the jdmt can be executed while the appeal is pending |
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Term
| When is an appela premature? |
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Definition
| When the court has not dispose dof all timely filed mtn for new trial/JNOV, but becomes effective when motions are denied. |
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Term
| What are the time limits for a suspensive appeal |
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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 |
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Term
| How much does a bond have to be? |
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Definition
| equal to the amt of the jdmt including interset until the security is furnished excluding cots |
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Term
| How much does a surety bond have to be? |
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Definition
| ct can order it up to 150% of the jdmt |
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Term
| Divorces always ____________appeals, custody and alimony are ____________ appeals. |
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Definition
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Term
| How do you appeal from the trial ct? |
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Definition
Oral/written/petition
State the retunr date
amt of security
Clerk then mails the notice to the parties with estimated costs |
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Term
| When must the costs be paid for an appeal from trial court? |
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Definition
| 20 days of the mailing of notice, or the trial ct may dismiss the appeal |
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Term
| What is the return day and when is it? |
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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 |
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Term
| Does an appeal have to be answered? |
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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 |
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Term
| While appealing the trial ct retains jx over a lot of things, but in particular... |
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Definition
| ability to test solvency of the surety on the appeal bond. |
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Term
| Will an appeal be dismissed if the record is shitty? |
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Definition
| No, unless the shitiness is imputable to the appellant |
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Term
| How long to file a mtn to dismiss an appeal? |
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Definition
| w/in 3 days of the RETURN DAY or LODGING |
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Term
| What happens if a suspensive appeal is filed late? |
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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. |
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Term
| Can a TRO or prelim injuction be appealed? |
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Definition
TRO - no
Prelim - 15 days from order
*10 days if city/parish ct |
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Term
| How long do you have to wait to execute a money judgment? |
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Definition
| Until the time for takin a suspensive appeal has runt |
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Term
| How do you execute a money jdmt? |
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Definition
File a writ of fieri facia (FiFa) which directs the sheriff to seize and sell
sheriff has 1 yr to seize and sell. |
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Term
| Who has to get notice of seizure? |
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Definition
Debtor and occupants by personal or dom service
If can't find debtor serve atty
If can't find occupants post on door |
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Term
| Who does the notice of seizure have to be filed with? |
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Definition
Record of mortgages
then send Mennonite notices to interested parties
file affidavit with clerk showing who received notice |
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Term
| When ppty is sold at public auction how does notice have to be given? |
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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 |
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Term
| Immovable has to sell for ($)... |
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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. |
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Term
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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 |
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Term
| How long does the garnishee have to answer the INTs |
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Definition
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Term
| How much of wages can be garnished? |
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Definition
| 75% of disposable earnings |
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Term
| How can a judgment creditor find out about a debtor's assets? |
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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 |
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Term
| How is a money judgment revived? |
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Definition
Will prescribe after 10 years
Interested party fileds a ex parte motion brought in the ct where the judgment was rendered |
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Term
| How to you compel a party in possession of immovable ppty to vacate or deliver movable ppty? |
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Definition
| Writ or possession - directs the sherfiff to deliver movable property or compel the party in poss of immovable to vacate |
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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? |
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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 |
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Term
| How do you execute foreign judgments? |
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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. |
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Term
| How do you enforce judgment from different parishs? |
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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. |
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Term
What is a summary proceeding and Do you need a citation for summary proceedings?
How is it commenced? |
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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 |
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Term
| What are the most peculiar types of summary proceedings and why? |
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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 |
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Term
| What is the most common type of summary proceeding |
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Definition
| incidental questions - reasonableness of atty fees |
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Term
| What is the requirement for exectuory process? |
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Definition
| A confession of jdmt clause contained in either a mortgage/privilege executed by authentic act or a security agreement under Chapter 9 |
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Term
| What is the procedure for executory process? |
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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 |
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Term
| How does a jdmt debtor stop executory process? |
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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. |
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Term
| If ppty goes up for auction by executory process, does it need to be appraised? |
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Definition
No, can be waived in the mortgage for immov.
Movables never need to be appraised. |
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Term
| If the mortgagor sells the ppty seized to a TP, that party's rights are to... |
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Definition
pay the debt
enjoin the sale
or mortgage was not recorded
or to intervene to claim proceeds equal to improvements of the ppty |
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Term
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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*** |
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Term
| What are the requirements for a deficiency judgment? |
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Definition
| Must have an appraisal, or debtor's right to deficiency jdmt is waived unless there is an exception |
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Term
| Is a deficiency judgment ordinary or executory proceeding? |
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Definition
Ordinary
Convert the executory proceeding to ordinary in order to get a deficiency judgment on the remainder not satisfied by executory process |
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Term
| What kind of defenses can a debtor use for the deficiency jdmt process? |
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Definition
| normal affirmative defense but they may not raise defects with the executory process |
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