Louisiana Code of Civil Procedure 2753 – Security not required in certain cases
Terms Used In Louisiana Code of Civil Procedure 2753
- Arrest: Taking physical custody of a person by lawful authority.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fraud: Intentional deception resulting in injury to another.
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
- Writ: A formal written command, issued from the court, requiring the performance of a specific act.
A. The original debtor, his surviving spouse in community, heirs, legatees, and legal representative are not required to furnish security for the issuance of a temporary restraining order or preliminary injunction to arrest a seizure and sale, when the injunctive relief is applied for solely on one or more of the following grounds:
(1) The debt secured by the mortgage, security agreement, or privilege is extinguished or prescribed;
(2) The enforcement of the debt secured by the mortgage, security agreement, or privilege is premature, either because the original term allowed for payment, or any extension thereof granted by the creditor, had not expired at the time of the institution of the executory proceeding;
(3) The act evidencing the mortgage or privilege or the security agreement is forged, or the debtor’s signature thereto was procured by fraud, violence, or other unlawful means;
(4) The defendant in the executory proceeding has a liquidated claim to plead in compensation against the debt secured by the mortgage, security agreement, or privilege; or
(5) The order directing the issuance of the writ of seizure and sale was rendered without sufficient authentic evidence having been submitted to the court, or the evidence submitted was not actually authentic.
B. Notwithstanding any of the provisions of this Chapter to the contrary, a claim or an action in redhibition shall not be grounds for the issuance of a temporary restraining order or preliminary injunction to arrest a seizure and sale, without security as provided by law.
C. Notwithstanding any of the provisions of this Chapter to the contrary, a claim that the attorney’s fees established in the mortgage, security agreement, or privilege to be enforced are unreasonable shall not be grounds for the issuance of a temporary restraining order or preliminary injunction to arrest a seizure and sale. Any such claim may only be urged either:
(1) Prior to the sale by means of a rule to show cause filed not later than ten days, exclusive of holidays, prior to the sale, and tried summarily prior to the date of the sale, or
(2) In conjunction with a proceeding seeking a deficiency judgment to satisfy the debt for which the property was sold.
Acts 1983, No. 341, §1; Acts 1987, No. 304, §1; Acts 1989, No. 137, §18, eff. Sept. 1, 1989.