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SECTION: 402 EXECUTORY PROCESS

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SECTION: 402

TITLE: EXECUTORY PROCESS

EFFECTIVE DATE:  February 15, 2017

 

  1. PURPOSE:
  2. Provide guidelines for Deputy Sheriffs executing Fieri Facias or Writs of Seizure.
  3. Provide guidelines for Deputy Sheriffs to instruct plaintiffs regarding their responsibilities during the execution of Fieri Facias or Writs of Seizure.
  4. Provide guidelines for Deputy Sheriffs forcing entry under authority of a Fieri Facias.
  5. POLICY:

It is the policy of the Evangeline Parish Sheriff's Office to execute all Writs of Executory Process in a timely manner and in accordance with all applicable sections of the Louisiana Code of Civil Procedure.

III. DEFINITIONS:

  1. Executory Process: A process which can be resorted to in the following cases, namely:

 1) When the right of the creditor arises from an act importing confession of judgment, and which contain a privilege or mortgage in his favor;

 

 2) When the creditor demands the execution of a judgment which has been rendered by a tribunal different from that within whose jurisdiction the execution is sought.

  1. Fieri Facias: Literal translation is "cause to be done." In practice, a writ of execution commanding the deputy to seize and make the amount of a judgment from the goods and chattels of the judgment debtor

. C. Sequestration: Mandate of the court, ordering the deputy to take in his possession, and to keep a thing of which another person has possession, until after the decision of a suit, in order that it be delivered to him who shall be judged to be entitled to have possession of the thing.

  1. Attachment: The process of taking person or property, by virtue of a judicial order and bringing same into custody of the law. The purpose is to take defendant's property into legal custody, so that it may be applied to defendant's debt to plaintiff when established.

 

  1. PROCEDURES:

 

  1. Office Procedure for Executory Process:
  2. The Executory Process Unit Supervisor or his/her designee shall make three notices

setting forth the title of the action or proceeding, its docket number, the court which issued the writ, the amount of the judgment or claim specified in the writ, an exact copy of the description of the immovable property furnished him/her in accordance with Louisiana Revised Statute 13:3851, and the fact that the deputy is seizing the described property in accordance with Code of Civil Procedure Article 2293, and, if applicable, the date of the first scheduled sale of the property. If immovable property to be seized is owned by more than one party, the Executory Process Unit shall issue an additional notice for each additional party. (Louisiana Revised Statute 13:3852)

 

  1. The Civil Deputy shall serve one of the notices mentioned in Louisiana Revised Statute 13:3852 on the party, or on each of the parties, whose property is to be seized, and the Executory Process Unit Supervisor shall file another of these notices for recordation in the Office of the Recorder of Mortgages. (Louisiana Revised Statute 13:3853)
  2. As soon as one of the notices mentioned in Louisiana Revised Statute 13:3852 is filed for recordation in the Office of the Recorder of Mortgages, the Executory Process Unit Supervisor or designee shall enter in the computer, the description of the immovable property seized and the date of the filing of the notice for recordation in the Office of the Recorder of Mortgages. The Civil Deputy shall make his return to the Executory Process Unit Supervisor who issued the writ on the remaining notice mentioned in Louisiana Revised Statute 13:3852, showing the date and manner of the service of the notice on the party or parties whose property is seized.
  3. The entry of the description of the immovable property to be seized in the computer and the filing of the notice for recordation in the Office of the Recorder of Mortgages, as provided in Louisiana Revised Statutes 13:3853 and 13:3854, shall be considered the actual seizure and possession by the Civil Deputy of the immovable property described. Therefore, it is not necessary for the Civil Deputy to make an actual seizure to take actual possession thereof nor to appoint a keeper therefore. The filing of the notice for recordation in the Office of the Recorder of Mortgages, as provided in Louisiana Revised Statute 13:3853, constitutes notice to third persons of the seizure and of the existence of the privilege accorded by law to the seizing creditor. (Louisiana Revised Statutes 13:3855)
  4. When the Civil Deputy to whom a writ is directed can find no movable property to seize or cannot identify said movable property, he/she may call upon the seizing creditor to point out to him/her any property on which he/she may have a claim or any other property which the seizing creditor wants seized that belongs to the debtor. (Louisiana Revised Statute 13:3884)

 

  1. The Sheriff has the power of administration of all property seized regardless of the type of writ under which it was seized.
  2. If immovable property is not occupied by the owner and is not under lease, the Sheriff may lease it for a term not beyond the date of the judicial sale. He cannot lease movable property except with the authority of the court and with the consent of both parties.
  3. If funds are advanced or satisfactory security is furnished him by an interested party, the Sheriff shall continue to operate any property under seizure. If the funds or security are not furnished, it is discretionary with the Sheriff whether he operates the property.
  4. To operate any such business or operation, the Sheriff may employ the personnel he deems necessary for the undertaking. (LA Code of Civil Procedure Article 328)

 

  1. The Sheriff may spend what is necessary for the protection, preservation, and administration of the seized property which expenditures shall be taxed as costs of the seizure.

NOTE: Examples of expenditures are: the cost of insurance on the property, storage charges on movables, the employment of a keeper to guard seized property, or providing feed for livestock.

 

  1. To execute a writ, mandate, order, or judgment of the court, the Civil Deputy may enter on the lands or into the residence or other building owned or occupied by the debtor or defendant. If necessary to gain entrance, he/she may break in.
  2. Posse Comitatus: (Louisiana Revised Statute 33:1436) If resistance is offered or threatened, he/she may require assistance from the police, neighbors, or anyone present or passing by.
  3. An able-bodied inhabitant of the parish must comply with the deputy's orders to become a member of a posse comitatus. Anyone who does not comply can be charged with a misdemeanor.
  4. Although a deputy has the right to use force, it must be used with great discretion. As a practical matter, such force is seldom used.
  5. To serve civil papers, the law does not give the deputy authority to break into or illegally enter private property. The person to be served must be the owner of the property or have legal possession of it. For example, a Civil Deputy who desires to serve an employee at an industrial plant should obtain permission of plant officials to enter the premises, make arrangements for the employee to come out, or wait on the

 

 

outside until the employee to be served leaves the plant property.

 

  1. At no time will a Civil Deputy act as a negotiator, arbitrator, or adviser between plaintiff, defendant, or interested third parties. He/she will simple execute all writs in a timely and legal matter.
  2. Seizure and Sale of Property:
  3. The Civil Deputy has the right to enter onto a debtor's property. If there is a question as to the right of entry onto a third party's property, the Legal Advisor of the St. Landry Parish Sheriff's Office shall be contacted.
  4. The Civil Deputy shall take actual possession of all movable property and may remove it to a warehouse or other place of safekeeping.

NOTE: Unless incorporeal (without body) movables are in the form of evidence of debt (notes, bank accounts, etc.), they are not subject to actual possession. Certain implements, appliances and other items can become immovables by destination. An example would be farm implements and work animals placed on a farm by the owner which are not secured by a chattel mortgage. The law says these possessions become a part of the farm. This does not apply where an attendant or lessee places possession on the farm. If the writ authorizes the seizure of these items, the Civil Deputy is within his rights to make such seizure and the injured party must assert his claim in court to have it returned.

  1. The Civil Deputy may take, but is not required to take, possession of immovable property if it is not under lease or occupied by an owner. If he does not take actual possession, he/she must go through the procedure of Constructive Seizure.
  2. It shall be the responsibility of the St. Landry Parish Sheriff's Office for protecting and safeguarding all property seized.
  3. The owner of movables may be appointed keeper, but this decision is considered risky and should be made only at the request of the seizing creditor or at the risk of the Sheriff. Seized automobile or other movables may be stored with the seizing creditor if the seizing creditor has a bonded storage house.
  4. When a tract of land is situated in two or more parishes, the deputy shall execute process upon the whole tract. The Executory Process Unit Supervisor shall give legal notices of the sale of each of the parishes involved. The Sheriff's act of sale shall be

recorded in each parish.

  1. Advertisement- Movable property requires one advertisement; immovable property requires two advertisements. (CCP Article 2331). Movable property must be advertised at least ten (10) days prior to sale. Immovable property requires first ad to appear at least thirty (30) days prior to date of sale and second ad must appear between one and seven days prior to sale. (Louisiana Revised Statute 43:203)
  2. The Executory Process Unit Supervisor shall order mortgage certificates from the Clerk of Court/Recorder of Mortgages.
  3. A Request for Notice of Seizure shall be done ten (10) days prior to sale. (Louisiana Revised Statute 13:3886)
  4. IRS requires notice of all Federal Tax Liens at least twenty-five (25) days prior to the sale.
  5. For movables (automobiles, mobile homes, and boat trailers) certificates are ordered from the Department of Public Safety in the State of Louisiana.
  6. For movables (chattels), certificates are ordered from the Clerk of Court/Recorder of Mortgages and a Uniform Commercial Code (UCC) Certificate.
  7. The Civil Deputy shall serve notice on the debtor and notify the seizing creditor not less than seven days before the sale, directing each to name an appraiser and to notify the Executory Process Unit of those names, not less than four (4) days before the sale. The notarized appraisals must be made and delivered to the Executory Process Unit in the Civil Process Services Bureau not less than two (2) days before the sale.
  8. If the parties neglect to do the above within the time limits, the Executory Process Unit Supervisor shall appoint the appraisers.
  9. If the appraisers cannot agree, the Executory Process Unit Supervisor shall appoint a third appraiser whose decision shall be final.
  10. The notarized appraisements shall be made in writing, signed by the appraisers and delivered to the Executory Process Unit in the Civil Process Services Bureau.
  11. Sheriff's sales are held in the lobby of the St. Landry Parish Law Enforcement Center on Wednesdays at 11:00am. At the time of the sale the Executory Process Unit Supervisor or his/her assistant shall read aloud the following:
  12. The title and docket number of the action or proceeding in which the writ was issued, and the court which issued it;
  13. Name of person/s served; date of service; type of service and name of deputy who served the writ;

 

  1. Complete advertisement describing the property and the mortgage certificate and any other certificates required by law;
  2. Name of appraisers and the amount of appraisal; and
  3. Bidding begins at two-thirds of the appraised value and sale is made to the highest bidder. (If sold without appraisal, the bidding begins at the approximate cost of the suit.)

The Executory Process Unit Supervisor shall make a signed return to the Clerk of Court who issued the writ to show what occurred.

 Seizure of Immovable Property:

 

The party desiring constructive seizure of immovable property must request it and must furnish with the writ, an exact and complete description of the property to be seized.

Three copies shall be made of the notices (outlined in the Louisiana Revised Statute 13:3852) describing the title or the action or proceeding, its docket number, the court which issued the writ, the amount of judgment or claim specific in the judgment, as well as an exact copy of the description of the immovable property the Sheriff is seizing.

One copy of the notice shall be served on each owner whose property is seized and the Executory Process Unit Supervisor shall file one with the Recorder of Mortgages. As soon as the notice is filed with the Recorder of Mortgages, the Executory Process Unit Supervisor, or his/her assistant, enters in the computer the description of the immovable property seized and the date and hour of the filing of the notice of recordation.

NOTE: The Executory Process Unit Supervisor shall make an extra copy of the seizure notice, which was stamped by the Recorder of Mortgages at the time the copy was filed in that office, showing the date of the filing. This extra copy would then be placed in the suit folder and would satisfy all the provisions of the Louisiana Revised Statute 13:3854.

  1. The remaining notice would contain the return of the Civil Deputy showing date and manner of serving of the property owner(s) and the date concerning its filing with the Recorder of Mortgages.

The filing of the notice with the Recorder of Mortgages constitutes actual seizure and

possession of immovable property and gives notice to third person of the seizing creditor's privilege. (This procedure constitutes actual possession and the deputy does not have to actually seize or go on the property. A keeper does not have to be appointed under this method of seizure.)

  1. If the property is released from seizure, the Executory Process Unit Supervisor issues to the Recorder of Mortgages a written authorization for cancellation of the inscription in the mortgage records of the notice previously described and the recorder shall cancel the inscription. (Louisiana Revised Statute 13:3859)

 

Civil Warrants of Evictions; the Civil Warrant:

There is a vehicle in the law for a party to be placed in possession or custody of another person or property. The civil warrant accomplishes this task. The civil warrant is an order from the court, usually issued through the Clerk of Court directing the Sheriff to perform some action which will place the person or property requested into the possession of the Party requesting the action. (Party: a litigant in an active action (law suit) either plaintiff or defendant.)

Special Situation:

When, because of the late hour, the Clerk of Court cannot be reached and a delay until he/she can be reached would result in damage to the party requesting the enforcement of the warrant, then the warrant may be enforced if it is ascertained that a local judge did in fact issue the order.