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  • The Handyman
    Feb 1, 2007
    • 0 Attachment
      In Louisiana we have what is known as "executory process" to foreclose on a
      security interest without the formality of a hearing. The representing
      attorney simply attaches the contract and note along with an affidavit from
      one of the bank's employee. The affidavit states that s/he has searched
      their records and found that you are in default for non-payment of the debt.
      That affidavit is all that is needed because you are not served with a copy
      of the exparte petition. This is permitted because you waived formal
      hearing and consented to judgment when you signed the contract. In such a
      case your only remedy is an injunction based upon a ground that would estop
      the seizure and sale. It is like shooting fish in a barrel once executory
      process is filed. I have such a seizure case in Federal court for 3 years
      involving a seizure and sale. Federal because I goofed and failed to go for
      an injunction. I am now going against the attorney for not sending a
      dunning letter prior to filing the exparte petition. He managed to get a
      dismissal on the ground that, as an attorney enforcing a security interest,
      he was not a debt collector. I won on appeal but the 5th circuit did not
      print a decision. Trial is set for August. If I prevail I most probably
      can get the judgment voided because it was obtained in violation of the Fair
      Debt Collection Practice Act. This how they avoid witness.

      -------Original Message-------

      From: mn_chicago
      Date: 2/1/2007 1:35:59 PM
      To: tips_and_tricks@yahoogroups.com
      Subject: [tips_and_tricks] Jurisdiction

      Thursday 1 February 2007

      This comes from the DUI thread, but because it pertains specifically
      to jurisdiciton, I have moved the comment to here.

      : "Jim" <jimveda37@...>

      > All judges have the right to decide jurisdiction, IF
      > jurisdiction is in question and IF an action has been commenced.
      > But the jurisdiction of a court must be invoked by a sufficient
      > accusatory instrument according to law or an action has NOT been
      > commenced.

      Unless certain pieces of information become clear in my mind, I
      continue to grappple with them and sometimes fail to see the logical

      For example, when a foreclosure is commenced by a lender, it is
      done via a local agent/attorney with copies of the note and mortgage
      used as evidence.
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