2006 Louisiana Laws - RS 8:465 — Order requiring reinvestment in compliance with law; actions for preservation and protection
§465. Order requiring reinvestment in compliance with law; actions for preservation and protection
A. All funds held in trust for perpetual care purposes shall be administered by the trustee with such skill and care as a man of ordinary prudence, discretion, and intelligence would exercise in the management of his own affairs, not in regard to speculation but in regard to the permanent disposition of his funds, considering the probable income as well as the probable safety of his capital, subject to the following restrictions:
(1) No such funds shall hereafter, directly or indirectly, be loaned to or invested with any of the following:
(a) Any officer, director, or employee of the cemetery authority.
(b) Any trustee of said funds.
(c) Anyone related by blood, adoption, or marriage to any individuals included in (a)and (b) above.
(d) The cemetery authority itself.
(e) Any business entity of which a controlling interest is held, directly or indirectly, by any of the foregoing persons or legal entities.
(f) Any other cemetery authority, or mortuary or funeral establishment.
(2) An affidavit from the borrower that, to the best of said borrower's knowledge and belief, the subject loan is not in violation of these restrictions, shall suffice to establish for the trustee a conclusive presumption that such is the case.
(3) It shall be prohibited for:
(a) An endowment or perpetual care trust to make one or more loans to any person or entity the cumulative value of which would constitute more than twenty-five percent of the total investment portfolio of the lending care fund, or to have more than two-thirds of the total assets of such funds invested in loans as described in Subparagraph (4)(h) of this Subsection.
(b) Any person or entity listed in Paragraph (A)(1) of this Section to pay or receive a commission, bonus, rebate, or other thing of value in connection with the loan or investment of such funds.
(4) Investment of such funds shall only be made in any of the following:
(a) Bonds, certificates, notes, or other evidences of indebtedness of the United States, or of the state of Louisiana.
(b) General obligations of any state or political subdivision of a state.
(c) Debentures issued by land banks and federal intermediate credit banks and debentures issued by banks for cooperatives.
(d) The bonds, certificates, notes, and other evidence of indebtedness of any municipality, parish, road, drainage, subdrainage, sewerage, gravity drainage, or school district, or of any authorized public board or commission of Louisiana.
(e) Paving certificates issued by any municipality in Louisiana.
(f) Any other form of security as permitted by R.S. 8:454.
(g) Repealed by Acts 2004, No. 68, §2.
(h) Loans secured by a mortgage or mortgages on improved immovable property situated exclusively in the state of Louisiana for not more than an aggregate of seventy-five percent of the appraised value of the property and for a term amortized over a period not exceeding thirty years; and unless otherwise provided by regulation of the Louisiana Cemetery Board must bear interest at not less than the maximum rate permitted at the time of investment by the Federal Housing Administration for loans to be insured.
(5) Whenever any of the funds of an endowment or perpetual care trust are invested in or secured by a mortgage or whenever such a mortgage represents part of the assets of such a fund, the trustee shall retain in its own or constructive custody and furnish the cemetery authority with the following documents:
(a) The face and reverse side of the mortgage note or notes.
(b) A certified copy of the mortgage and of any corporate resolution or power of attorney authorizing its execution, and evidencing the recordation thereof.
(c) A copy of a survey of the property and its improvements.
(d) An original, or photo copy, of an appraisal current at the time of the mortgage, said appraisal to be made by an appraiser meeting the qualifications of the board, as provided by rule and regulation.
(e) A title opinion of a licensed Louisiana attorney or mortgagee title insurance policy issued by an insurer authorized to do and doing business in Louisiana, on a standard form approved by either the Federal National Mortgage Association or by the American Land Title Association, in an amount not less than the original indebtedness, certifying or insuring the title to be good and merchantable and free of all prior liens and encumbrances.
(f) Policies or certificates of casualty and property insurance by an insurer admitted to and doing business in Louisiana, in such kinds and amounts as required by a financial institution trustee investing or loaning its own funds, covering the current year.
(g) Certificates from the tax collector showing payment of all ad valorem taxes and assessments against the property mortgaged, for the last year for which such taxes were payable and for at least two years prior thereto.
B. Whenever the board finds, after notice and hearing, that any endowment or perpetual care funds have been invested in violation of this title, it shall, by written order mailed to the trustee and to the cemetery authority, require the reinvestment of the funds in conformity with this title within the period specified by it, which shall not be more than six months. Such period may be extended by the board in its discretion.
C. The board may bring actions for the preservation and protection of endowment or perpetual care funds in the district court of the parish in which the cemetery is located, and the court may appoint a substitute trustee or trustees and make any other order necessary for the preservation, protection and recovery of endowment or perpetual care funds whenever a cemetery authority or the trustee of such funds has:
(1) Transferred or attempted to transfer any property to or make any loan from or investment with the endowment or perpetual care funds in violation of Subsection A of this Section.
(2) failed to reinvest endowment or perpetual care funds in accordance with a board order issued under authority of Subsection B of this Section; or,
(3) invested endowment or perpetual care funds in violation of this title; or,
(4) taken action or failed to take action to preserve and protect the endowment or perpetual care funds, evidencing a lack of concern therefor; or,
(5) become financially irresponsible or transferred control of the cemetery authority to any person who, or business entity which, is financially irresponsible; or,
(6) become in danger of insolvency or has gone into bankruptcy or receivership; or,
(7) taken any action in violation of this title or failed to take action required by this title or has failed to comply with lawful rules, regulations and orders of the board.
D. Whenever the board has reason to believe that endowment or perpetual care funds are in danger of being lost or dissipated during the time required for notice and hearing, it may immediately apply to the district court of the parish in which the cemetery is located for any order which appears necessary for the preservation and protection of endowment or perpetual care funds, including but not limited to immediate substitution of trustees.
Acts 1974, No. 417, §1. Amended by Acts 1980, No. 428, §1. Acts 1983, No. 525, §1; Acts 2001, No. 468, §1; Acts 2004, No. 68, §§1, 2.
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