RS 5167 - Cancellation of mortgage or vendor's privilege by affidavit of notary or title insurer where paraphed note or other evidence is lost or destroyed
A.(1) When a promissory note paraphed for identification with a mortgage or act creating a vendor's privilege on immovable property has been lost or destroyed after receipt by the notary public who satisfied the promissory note out of the proceeds of an act of sale or mortgage executed before him, or with funds given to him for that purpose, the clerk of court or recorder of mortgages may cancel the mortgage or vendor's privilege upon receipt of an affidavit from the notary public. The affidavit shall set forth all of the following:
(a) The name of the mortgagor or obligor of the privilege as it appears in the recorded mortgage or vendor's privilege and recordation information.
(b) A description of the paraphed promissory note and the property.
(c) A statement that the affiant or someone under his direction did satisfy the promissory note.
(d) That the affiant or someone under his direction:
(i) Received the note marked "Paid in Full" from the last holder of the note, and that the note was lost or destroyed while in the affiant's custody; or
(ii) Has confirmed that the last holder of the paraphed note received payment in full and sent the note and the note was never received.
(e) That the affiant agrees to be personally liable to and indemnify the recorder of mortgages and any person relying upon the cancellation by affidavit for any damages that they may suffer as a consequence of such reliance if the recorded affidavit contains materially false or incorrect statements that cause the recorder to incorrectly cancel the recordation of a mortgage or privilege.
(f) A statement that the affiant has made a due and diligent search for the note, the note cannot be located, and sixty days have elapsed since payment or satisfaction of the note.
(2) No mandamus proceeding is required to use the provisions of this Subsection.
(3) A person who signed an affidavit that is provided to the recorder of mortgages pursuant to this Subsection and that contains materially false or incorrect statements causing the recorder to incorrectly cancel the recordation of a mortgage or privilege is liable to and shall indemnify the recorder and any person relying upon the cancellation for any damages that they may suffer as a consequence of such reliance.
(4) The recorder of mortgages shall not be liable for any damages resulting to any person or entity as a consequence of canceling a mortgage or vendor's privilege pursuant to an affidavit which complies with this Subsection.
B.(1) When a paraphed promissory note or other evidence sufficient to cause a cancellation of a mortgage or vendor's privilege is lost or destroyed, and all obligations secured by the mortgage or vendor's privilege have been satisfied, the recorder of mortgages shall cancel the mortgage or vendor's privilege upon receipt of an affidavit from an officer of a licensed title insurer that has issued or issues a title insurance policy covering the immovable property encumbered by the mortgage or vendor's privilege. The affidavit shall set forth all of the following:
(a) A description of the instrument that was lost or destroyed and an affirmative statement that the instrument has been lost or destroyed.
(b) The name of the mortgagor or obligor of the privilege as it appears in the recorded mortgage or vendor's privilege, and recordation number or other appropriate recordation information.
(c) A statement that all obligations secured by the mortgage or vendor's privilege have been satisfied.
(d) A declaration that the title insurer agrees to be liable to and indemnify the recorder of mortgages and any person relying upon the cancellation by affidavit for any damages that they may suffer as a consequence of such reliance if the recorded affidavit contains materially false or incorrect statements that cause the recorder to incorrectly cancel the recordation of a mortgage or privilege.
(e) A statement that the affiant has made a due and diligent search for the lost or destroyed instrument, the lost or destroyed instrument cannot be located, and sixty days have elapsed since payment or satisfaction of the secured obligation.
(2) No mandamus proceeding is required to use the provisions of this Subsection.
(3) A title insurer whose officer has signed an affidavit that is provided to the recorder of mortgages pursuant to this Subsection and that contains materially false or incorrect statements causing the recorder to incorrectly cancel the recordation of a mortgage or privilege is liable to and shall indemnify the recorder and any person relying upon the cancellation for any damages that they may suffer as a consequence of such reliance.
(4) The recorder of mortgages shall not be liable for any damages resulting to any person or entity as a consequence of canceling a mortgage or vendor's privilege pursuant to an affidavit which complies with this Subsection.
Acts 1988, No. 986, §1; Acts 2005, No. 169, §8, eff. July 1, 2006; Acts 2005, 1st Ex. Sess., No. 13, §1, eff. Nov. 29, 2005; Acts 2007, No. 337, §1.