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xavierjd, Attorney
Category: Legal
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Experience:  20+ yrs in criminal, landlord/tenant, family, & small claims
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what does executory process mean? our name appeared under

Resolved Question:

what does executory process mean? our name appeared under the public records section of our newspaper today and we knew nothing about it
Submitted: 4 years ago.
Category: Legal
Expert:  xavierjd replied 4 years ago.

There are two Methods of Judicial Foreclosure in Louisiana: (1) ordinary process and (2) executory process. Ordinary process operates as an ordinary lawsuit in Louisiana.

 

"Executory process" is a legal term for what happens when a mortgage company (or lender) sues the borrower in court to take back its property. This happens when the borrower defaults on the mortgage (fails to pay). Executory process is a very fast procedure with respect to court proceedings.

 

When the mortgage company sues the borrower for the property, it files a lawsuit with the court that seeks return of the property to the lender (mortgage company). The mortgage company attaches the original note and a certified copy of the mortgage to its lawsuit. Upon filing the lawsuit, the court can then enter an order for the issuance of executory process.

 

Once the court orders the issuance of executory process, the borrower is served with a demand for payments that are due and unpaid on the loan. The borrower has three days to come up with the money. If the borrower doesn't pay, the court will issue a writ of seizure and sale. That allows sheriff will seize the real estate. The borrower gets a notice of seizure. The property is then advertised in the paper once a week for 30 days. The sheriff will then sell the property at auction to pay down or pay off the loan.

 

Customer: replied 4 years ago.
we had applied for a loan modification in December and haven't heard anything from our mortgage company...we have not received any type of court papers, phone call, letters, etc. should we have received any type of notice before this was published in the paper or sent to the courts...all this time we were awaiting an answer...we sent in a certain amount of money and was told not to send anything else until we received approval/denial of the loan modification. will we receive papers from the court or from our mortgage company. we were really caught off guard. please advise.
Expert:  xavierjd replied 4 years ago.

The U.S. Supreme Court, in the case of Fuentes V Shevin 1407 U.S. 67 (1972), held that the defendant in any lawsuit must be given notice of the suit and an opportunity to be heard in court. Louisiana's current executory process procedures barely comply with these requirements....

 

That being said, YES, you should have been served with a demand for payments that are due and unpaid on the loan. You should have been given 3 days to come up with the money.

 

Prior to that, however, you should have received "late" notices from the mortgage company when you got behind in your mortgage.

 

It is your obligation, however, to keep in contact with the company that you are working with for a loan modification.

 

You need to go to the court IMMEDIATELY to get a copy of any papers filed. You also need to contact the mortgage company IMMEDIATELY if there has been any mixup.

 

Don't rely on the mortgage companies to help you. You need to get the paperwork and you should take it to an attorney who specializes in property law. Sometimes an initial consultation is free or at a minimal charge. You can discuss the facts of your case, evaluate your options and decide what to do next.

 

Good Luck!

 

xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience: 20+ yrs in criminal, landlord/tenant, family, & small claims
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