Louisiana Notary

A Civil Law Tradition

Mortgage

Mortgage – Form and content of contract of mortgage

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Mortgage – Form and content of contract of mortgage

Art. 3288. Requirements of contract of mortgage. A contract of mortgage must state precisely the nature and situation of each of the immovables or other property over which it is granted; state the amount of the obligation, or the maximum amount of the obligations that may be outstanding at any time and from time to time that the mortgage secures; and be signed by the mortgagor.

Art. 3289. Acceptance. A contract of mortgage need not be signed by the mortgagee, whose consent is presumed and whose acceptance may be tacit.

Mortgage – Mortgage certificates

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Mortgage – Mortgage certificates

R.S. 9:2743. Certificate of encumbrances, procedure, content, liability. A. The recorder shall deliver a certificate of encumbrances to any person who requests it in writing.

B. The certificate shall list all the uncancelled mortgages and instruments evidencing privileges, in the order of their recordation, that appear in the mortgage records and that identify the persons designated in the request as the mortgagor or obligor of the debt secured by the privilege, unless the recorder is supplied with evidence satisfactory to him that such instruments are in fact not those of the person in whose name the certificate is sought.

C.(1) If no uncancelled mortgage or instrument evidencing a privilege exists, the certificate shall declare that fact.

(2) The certificate shall not list mortgages or privileges arising from the recordation of the ad valorem tax rolls nor shall it list the notices of tax sales filed pursuant to R.S. 47:2180.

D.(1) The recorder is not liable personally or in his official capacity for listing in his certificate an encumbrance in the name of a person who reasonably may be construed to be the person in whose name the certificate is sought.

(2) The recorder is liable in his official capacity for any loss caused by the failure to list a mortgage or privilege in the certificate or by listing a mortgage or privilege that has been cancelled from his records unless the error proceeds from a want of exactness in the description of the property or the name of the mortgagor or obligor of the debt secured by the privilege specifically given to the recorder in the request.

R.S. 9:5212. Prompt recordation and certificate of encumbrances. Except as provided in R.S. 35:12(D), in no case can the recorder of mortgages and the parish recorders fulfilling the same duties, refuse or delay the recording of the acts which are presented to them for that purpose, or the delivery of the certificates which are required of them, as hereafter stated.

Mortgage – Limits on the effect of recordation

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Mortgage – Limits on the effect of recordation

Art. 3320. Recordation; limits of effectiveness.

A. Repealed by Acts 2005, No. 169, §8 eff. July 1, 2006.

B. Repealed by Acts 2005, No. 169, §8 eff. July 1, 2006.

C. Recordation has only the effect given it by legislation. It is not evidence of the validity of the obligation that the encumbrance secures. It does not give the creditor greater rights against third persons than he has against the person whose property is encumbered.

Mortgage – Extinction of mortgages

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Mortgage – Extinction of mortgages

Art. 3319. Methods of extinction. A mortgage is extinguished:

(1) By the extinction or destruction of the thing mortgaged.

(2) By confusion as a result of the obligee’s acquiring ownership of the thing mortgaged.

(3) By prescription of all the obligations that the mortgage secures.

(4) By discharge through execution or other judicial proceeding in accordance with the law.

(5) By consent of the mortgagee.

(6) By termination of the mortgage in the manner provided by Paragraph D of Article 3298.

(7) When all the obligations, present and future, for which the mortgage is established have been incurred and extinguished.

Mortgage – Other liabilities and rights of third possessors

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Mortgage – Other liabilities and rights of third possessors

Art. 3316. Liability of third possessor . The deteriorations, which proceed from the deed or neglect of the third possessor to the prejudice of the creditors who have a privilege or a mortgage, give rise against the former to an action of indemnification.

Art. 3318. Right of third possessor for costs of improvements. A third possessor may recover the cost of any improvements he has made to the property to the extent the improvements have enhanced the value of the property; out of the proceeds realized from enforcement of the mortgage, after the mortgagee has received the unenhanced value of the property.

Mortgage – Cum onere

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Mortgage – Cum onere

Art. 3317. Rights of third possessor. A third possessor who performs the obligation secured by the mortgage is subrogated to the rights of the obligee. In such a case, the mortgage is not extinguished by confusion as to other mortgages, privileges, or charges burdening the mortgaged property when the third possessor acquired the mortgaged property and for which he is not personally bound.

Mortgage – Effects and rank of mortgage

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Mortgage – Effects and rank of mortgage

Art. 3279. Rights created by mortgage. Mortgage gives the mortgagee, upon failure of the obligor to perform the obligation that the mortgage secures, the right to cause the property to be seized and sold in the manner provided by law and to have the proceeds applied toward the satisfaction of the obligation in preference to claims of others.

Art. 3338. Instruments creating real rights in immovables; recordation required to affect third persons. The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:

1) An instrument that transfers an immovable or establishes a real right in or over an immovable.

(2) The lease of an immovable.

(3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.

(4) An instrument that modifies, terminates, or transfers the rights create or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

Art. 3307. The effect and rank of mortgages. A mortgage has the following effects:

(1) Upon failure of the obligor to perform the obligation secured by the mortgage, the mortgagee may cause the mortgaged property to be seized and sold in the manner provided by law and have the proceeds applied toward the satisfaction of the obligation.

(2) The mortgaged property may not be transferred or encumbered to the prejudice of the mortgage.

(3) The mortgagee is preferred to the unsecured creditors of the mortgagor and to others whose rights become effective after the mortgage becomes effective as to them.

RS.9:5384. Assumption of a mortgage on immovable property by a third person An original vendor’s privilege or first mortgage, or both, is not extinguished nor is its ranking subordinated to any other mortgage, lien, privilege, or encumbrance when the obligation it secures is assumed by a new obligor, notwithstanding the release of the original obligor.

Mortgage – Property susceptible to mortgage

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Mortgage – Property susceptible to mortgage

Art. 3286. Property susceptible of mortgage.The only things susceptible of mortgage are:

(1) A corporeal immovable with its component parts.

(2) A usufruct of a corporeal immovable.

(3) A servitude of right of use with the rights that the holder of the servitude may have in the buildings and other constructions on the land.

(4) The lessee’s rights in a lease of an immovable with his rights in the buildings and other constructions on the immovable.

(5) Property made susceptible of conventional mortgage by special law.

RS. 9:5391. Additions, accessions, and natural increases subject to mortgage A mortgage of immovable property without further action attaches to present and future component parts thereof and accessions thereto, without further description and without the necessity of subsequently amending the mortgage agreement.

Mortgage – Mortgage defined

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Mortgage – Mortgage defined

Art. 3278. Mortgage defined. Mortgage is a nonpossessory right created over property to secure the performance of an obligation.

Art. 3280. Mortgage is an indivisible real right. Mortgage is an indivisible real right that burdens the entirety of the mortgaged property and that follows the property into whatever hands the property may pass.