6.1 Executory Process

In Louisiana, most foreclosure cases are brought by executory process as provided by La. C.C.P. arts. 2631–2772. After the petition for executory process is filed, a judgment of seizure and sale is granted, ordering the sheriff to seize and sell the property.1  Citation is unnecessary in executory proceedings, but the sheriff must attempt serve the defendant homeowner with a written notice of seizure.2  If the sheriff is unable to serve a defendant, La. C.C.P. arts. 2641 and 2674 apply.

A debtor must assert defenses to a petition for executory process by injunction or suspensive appeal.3  A suspensive appeal is not practical because a bond equal to 150% of the balance due on the debt must be posted.4  A preliminary injunction (but not a temporary restraining order) may issue to arrest the seizure and sale of immovable property.5  Therefore, a homeowner must move quickly to enjoin the sale. The preliminary injunction must be heard not less than 2 days nor more than 10 days after service of the rule to show cause why the preliminary injunction should not issue.6

A foreclosure by executory process may be halted by injunction if the debt is extinguished or legally unenforceable or if the procedures required for executory process have not been followed.7  Although security is still required in an amount to be set by the court,8  La. C.C.P. art. 2753 lists specific circumstances in which security is not required, including when the injunction is sought on grounds of prescription, forgery, or lack of authentic evidence.

To obtain a preliminary injunction, an applicant must make out a prima facie case and show irreparable injury.9  Real property is unique, and the loss of one’s home meets the irreparable injury standard. If a preliminary injunction is denied, a suspensive appeal of the injunction denial does not halt foreclosure by executory process.10

The sale may be enjoined “if the procedure required by law for an executory proceeding has not been followed.”11  Thus, defects in authentic evidence may bar executory process. Under Louisiana law, the mortgage follows the note.12  In addition, the foreclosing creditor must establish the chain of title of the note and mortgage at issue through authentic evidence. An unendorsed promissory note is not prima facie evidence of ownership.13

• 1La. C.C.P. art. 2635.
• 2La. C.C.P. arts. 2640, 2721.
• 3La. C.C.P. art. 2642; see First Guar. Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., 529 So. 2d 834 (La. 1987); Provident Bank v. Leslie, 2008-CA-1449 (La. App. 4 Cir. 3/10/10), 28 So. 3d 1196.
• 4La. C.C.P. art. 2642.
• 5La. C.C.P. art. 2752.
• 6La. C.C.P. art. 3602.
• 7La. C.C.P. art. 2751.
• 8La. C.C.P. art. 2754.
• 9Jo Ellen Smith Psychiatric Hosp. v. Harrell, 546 So. 2d 886, 891 (La. App. 1 Cir. 1989).
• 10Wood v. Fontenot, 2004-1174 (La. App. 3 Cir. 3/2/05), 896 So. 2d 323; United Cos. Lending Corp. v. Hall, 97-2525 (La. App. 1 Cir. 11/6/98), 722 So. 2d 48.
• 11La. C.C.P. art. 2751.
• 12La. C.C. art. 3312; La. Nat’l Bank of Baton Rouge v. Heroman, 280 So. 2d 362 (La. App. 3 Cir. 1973).
• 13Bankers Tr. Co. of Cal., N.A. v. Cooley, 2003-1942 (La. App. 1 Cir. 6/25/04), 884 So. 2d 594; Hollis v. Norton, 586 So. 2d 656 (La. App. 5 Cir. 1991); N.E. England Associates, Inc. v. Davis, 333 So. 2d 696 (La. App. 4 Cir. 1976).