Suretyship – Legal suretyship

Suretyship – Legal suretyship

Art. 3043. Legal suretyship. A legal suretyship is one given pursuant to legislation, administrative act or regulation, or court order. Art. 3063. Commercial suretyship rules apply to legal suretyship. The provisions governing commercial suretyship contained in this Title apply to legal suretyship except as otherwise provided in this Chapter.

Art. 3064. Supplementary nature of this Chapter. The provisions of this Chapter apply to the extent they are not contrary to special laws governing particular kinds of legal suretyship.

Art. 3065. Qualifications of legal surety; evidenced by affidavit; lack thereof not a defense. Legal suretyship may be given only by a person authorized to conduct a surety business in Louisiana or by a natural person domiciled in this state who owns property in this state that is subject to seizure and is of sufficient value to satisfy the obligation of the surety. The qualification of a natural person to act as legal surety must be evidenced by his affidavit and the affidavit of the principal obligor. A legal surety may not raise his lack of qualification as a defense to an action on his contract.

Art. 3066. Legal suretyship to conform to law. A legal suretyship is deemed to conform to the requirements of the law or order pursuant to which it is given, except as provided by Article 3067.

Art. 3067. Permissible variations. A surety is not liable for a sum in excess of that expressly stated in his contract. A legal suretyship may contain terms more favorable to the creditor than those required by the law or order pursuant to which it is given, but it may not provide for a time longer than is provided by law for bringing an action against the surety.

Art. 3068. Pledge of funds in lieu of suretyship. Legal suretyship may be given whenever the law requires or permits a person to give security for an obligation. The principal obligor may in lieu of legal surety­ship deposit a sum equal to the amount for which he is to furnish security to be held in pledge as security for his obligation.

Art. 3069. Necessity for judgment against legal surety. No judgment shall be rendered against a legal surety unless the creditor obtains judgment against the principal obligor fixing the amount of the latter’s liability to the creditor or unless the amount of that liability has otherwise been fixed. The creditor may join the surety and principal obligor in the same action.

C.C.P. art. 5121. Bond payable to clerk; cash bonds by plaintiffs authorized; person in interest may sue. When a party to a judicial proceeding is required by law or order of court to furnish security, any bond so furnished shall be made payable to the clerk of the trial court in which the proceeding was brought. When the party required to furnish same is a plaintiff, a cash bond may be furnished in lieu of other security; at his option.Any person in interest may sue thereon. No error, inaccuracy, or omission is naming the obligee on the bond is a defense to an action thereon.

C.C.P. art. 5121.1. Bond secured by immovable property. Any party to a judicial proceeding who is required by law or court order to provide security may furnish as security a bond secured by immovable property located in this state. The party providing the property bond shall present to a judge of the parish in which the immovable is located an assessment certificate, a homestead exemption waiver if applicable, and a mortgage certificate. Prior to presenting the bond to the court having jurisdiction over the judicial proceeding the bond shall be recorded in the mortgage office of the parish where the immovable is located and the recordation shall be evidenced on the mortgage certificate.

C.C.P. art. 5122. Oath of surety and principal on bond. A. Except as otherwise provided in this Article, no bond shall be accepted in a judicial proceeding unless accompanied by affidavits of:

(1) Each surety that he is worth the amount for which he bound himself therein, in assets subject to execution, over and above all of his other obligations.

(2) The party furnishing the bond that he is informed and believes that each surety on the bond is worth the amount for which the surety has bound himself therein, in assets subject to execution, over and above all of the other obligations of the surety.

(3) The party furnishing a bond secured by immovable property under Article 5121.1 that he is worth the amount for which he has bound himself and that the immovable securing the bond contains assets subject to execution, over and above all his other obligations.

B. This Article does not apply to a bond executed by a surety company licensed to do business in this state.