Dear Marshal Guidry:
This office is in receipt of your opinion request concerning the judicial sale of property by the marshal's office under a writ offieri facias. Specifically, you have raised the following questions:
1. Does the seizing creditor or a representative have to be present on the date of the scheduled sale in order to conduct the sale?
2. Can the judicial sale begin if the seizing creditor is not there and there is someone else there to bid on the sale?
3. If the judicial sale is scheduled to begin at 11:00 a.m. and the seizing creditor is late, how long should your office wait to begin the judicial sale?
Article 2338(B) of the Louisiana Code of Civil Procedure governs the issue you have posed and provides as follows:
B. If the seizing creditor is not present or represented at the sale, the property shall not be sold for less than the amount necessary to fully satisfy his writ plus the costs.
Accordingly, it is not necessary for the seizing creditor to be present or represented at the sale in order for the sale to proceed. However, the property cannot be sold for less than the amount necessary to fully satisfy the writ plus the costs if the seizing creditor is neither present nor represented at the sale.
Since the seizing creditor does not have to be present at the judicial sale, your office may begin conducting the sale at the scheduled time even if the seizing creditor has not yet arrived. Again, if the seizing creditor is not present or represented at the sale, the property cannot be sold for less than the amount necessary to fully satisfy the writ plus the costs. *Page 2
We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.
With best regards,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
BY: __________________________ Erin C. Day Assistant Attorney General
JDC: ECD