RS 5363.1 - Abandoned mobile homes; secured parties
A. Definitions
(1) "Mobile home" means a structure, transportable in one or more sections, which is eight body feet or more in width and is thirty-two body feet or more in length, designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein. The term "mobile home" shall include a modular home, a mobile home, and a residential mobile home that is no longer declared to be part of the realty pursuant to R.S. 9:1149.6.
(2) "Abandoned" or "abandonment" shall mean that the secured party has been notified by the mortgagor or by the owner of the immovable property on which the mobile home is located that the mortgagor no longer intends to remain in the mobile home, or when a reasonable person would conclude that the mobile home is no longer being occupied and from all appearances substantially all of the mortgagor's personal belongings have been removed from the mobile home.
(3) "Mortgagor" shall mean the person executing the chattel mortgage or security agreement under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101 et seq.) or, if the mobile home has been transferred and the chattel mortgage or security interest under Chapter 9 of the Louisiana Commercial Laws assumed by a new purchaser with written consent of the holder of the chattel mortgage or security agreement, the transferee.
(4) "Secured party" shall mean the holder of the chattel mortgage or security interest under Chapter 9 of Louisiana Commercial Laws, the pledgee or assignee of the chattel mortgage or security interest, or the agent of the holder, assignee, or pledgee of the chattel mortgage or security interest.
B.(1) In addition to those remedies provided in R.S. 9:5363, the holder of a chattel mortgage enforceable against third parties pursuant to Chapter 4 of Title 32 of the Louisiana Revised Statutes of 1950 or pursuant to this Part or the secured party under a perfected security interest subject to Chapter 9 of Louisiana Commercial Laws, shall have the right to take possession of the mobile home on default if all of the following criteria are met:
(a) The mobile home has been abandoned.
(b) The mortgagor has not paid a minimum of two consecutive monthly payments on the date due pursuant to the terms of the chattel mortgage or security agreement.
(c) A petition has been filed in a court of competent jurisdiction seeking an ex parte order authorizing the secured party to proceed pursuant to this Section. The judge shall sign the order only after the secured party has completed the following:
(i) Posted a bond in an amount fixed by the judge, which shall be the amount stated in the suit;
(ii) Executed an affidavit stating that the mobile home has been abandoned;
(iii) Presented to the court all documents necessary to prove that the secured party is the holder of the first mortgage on the mobile home.
(2) If the above criteria are satisfied the holder or holder's agent may take possession of the mobile home only after a ten day period following the placing of written notice on the front door of the mobile home by the sheriff, or his designee. The written notice shall contain the name of the debtor, the fact that the secured party shall take possession of the mobile home in accordance with the provisions of R.S. 9:5363.1, the citation and docket number of the case wherein a court authorized the secured party to proceed in accordance with this Section, and the name and telephone number of the secured party or his agent. In addition, the secured party shall also advertise once in the official publication or newspaper in the parish in which the mobile home is located at the time that the secured party takes possession. The advertisement only need state the names of the debtors, the fact that the secured party shall take possession of the mobile home, and the name and telephone number of the individual to contact for further information. The sheriff shall be paid a fee of twenty-five dollars for the placing of the written notice as provided by this Paragraph.
(3) When the mortgagor has notified the secured party in writing that he no longer intends to occupy the mobile home and has requested that the secured party retake possession thereof, the judge may issue an order waiving the provisions of this Section and may issue an order directing the Department of Public Safety to issue a new certificate of title to the secured party or any other person that purchases the abandoned mobile home at a private sale. When such an order is granted by the judge, the entire indebtedness shall be cancelled.
C. A secured party who has taken possession of a mobile home pursuant to Subsection B of this Section shall immediately give notice to the debtor at such address as specified in the chattel mortgage and at the debtor's last known address, if different, by registered or certified mail, return receipt requested.
D. The debtor shall have twenty-one calendar days from the date of the secured party's taking possession to reclaim any personal property contained in the mobile home or to redeem the mobile home by the paying to the secured party in cash the entire amount of delinquent payments, all interest and late charges due pursuant to the chattel mortgage, all costs of transporting and housing the mobile home, and all advertisement costs. Nothing herein shall prevent the secured party from reinstating the promissory note and chattel mortgage or security agreement for a lesser amount at the sole option of the secured party.
E. After the expiration of the twenty-one calendar days from the date of taking possession provided for in Subsection D of this Section:
(1) The secured party may sell the mobile home at public or private sale and apply the proceeds to the indebtedness. If there are mortgages or other security interests superior to that held by the secured party, the proceeds of the sale shall be paid first to those superior security interests; then the remaining balance, if any, shall be applied to the secured creditor's debt. Any funds received which are in excess of the indebtedness and superior security interests, including principal, interest, costs of repossession, and costs of sale, as each is provided for in the chattel mortgage or note, shall be delivered to the debtor, or if he cannot be found, shall be deposited with the clerk of court of the parish in which the mobile home was located prior to the secured party obtaining possession of the mobile home.
(2) The secured party shall obtain two appraisals of the mobile home from two qualified appraisers, and the average of both appraisals shall be the established value of the mobile home.
(3) If the amount of the entire indebtedness due pursuant to the chattel mortgage or security agreement which shall be deemed accelerated at the time of the sale plus the costs of transporting and storing the mobile home and advertisement costs exceeds the established value of the mobile home, the secured party shall have the right to bid at any public sale, without paying cash, up to the amount of the total indebtedness including the costs of transporting and storing the mobile home and advertisement costs or sell the mobile home to itself for the amount of said indebtedness.
(4) A secured party that sells the mobile home subject to a chattel mortgage entered into prior to the time Chapter 9 of the Louisiana Commercial Laws becomes effective at either public or private sale shall not have the right to seek a deficiency judgment from any debtor or other person, including any guarantor, liable on the promissory note or chattel mortgage. Provided, that nothing herein shall be construed to affect any agreement between the mortgagee and the selling dealer.
F. A debtor or a third party seeking to recover for damages occasioned by a reclaiming of a mobile home in violation of this Section shall be entitled to recover from the seizing secured party all costs and expenses incurred in the prosecution of such action, including reasonable attorney's fees as determined by the court. If such an action for damages is dismissed by the court, the court may grant reasonable attorney's fees to the creditor.
G. After the secured party has fulfilled the requirements of this Section and has taken possession of the mobile home, the court that issued the ex parte order provided for in Subparagraph (B)(1)(c) of this Section shall order the Department of Public Safety to issue a new certificate of title to the party that purchases the abandoned mobile home at the sale provided for by this Section.
Added by Acts 1983, No. 367, §1; Amended by Acts 1985, No. 715, §1; Acts 1989, No. 137, §5, eff. September 1, 1989; Acts 2001, No. 128, §19.