2017 Louisiana Laws
TITLE 13 - Courts and Judicial Procedure
RS 13:4344.1 - Deletion of inscriptions on mortgage certificates ordered by a sheriff
§4344.1. Deletion of inscriptions on mortgage certificates ordered by a sheriff
A. For immovable property procured pursuant to a judicial sale under a writ of fieri facias or a writ of seizure and sale, the clerk of court shall partially cancel from a mortgage certificate ordered in connection with a judicial sale the inscription of any mortgage, lien, or privilege, appearing on the certificate, only insofar as the foreclosed property is concerned, upon the filing of an affidavit executed by an officer of a title insurer duly licensed by the Louisiana Department of Insurance. The affidavit shall set forth all of the following:
(1) The name of the title insurer, the name of the affiant, and the office which the affiant holds.
(2) The fact that a mortgage certificate was ordered in connection with a judicial sale under a writ of fieri facias or a writ of seizure and sale.
(3) The number of the judicial proceeding in which the mortgage certificate was ordered, the name of the person and the property on which the mortgage certificate was issued, and the mortgage certificate number if it bears one.
(4) The title insurance company has conducted an investigation into the identity of the owner of the property and of the person identified in the inscription sought to be partially canceled on the mortgage certificate.
(5) The individual against whom the mortgage, lien, privilege, or other encumbrance was recorded and described in the affidavit is not the same person whose property is being sold at the judicial sale for which the mortgage certificate was issued.
(6) A direction from the title insurer to the clerk of court to partially cancel from the mortgage certificate the encumbrance identified on the affidavit.
(7) The title insurer agrees to be liable to and defend and indemnify the clerk of court, the sheriff, 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 incorrect statements that cause the clerk of court to incorrectly partially cancel on the mortgage certificate ordered in connection with the judicial sale the inscription of a mortgage, lien, privilege, or other encumbrance from the mortgage certificate.
B. The title insurer shall file the affidavit into the mortgage records, and the filing of the affidavit shall operate as a partial cancellation on the mortgage certificate of the inscriptions of the encumbrances identified in the mortgage certificate.
C. The sheriff shall proceed with the judicial sale without regarding the partially canceled inscription as superior to that of the seizing creditor, and the subsequent judicial sale shall be made free and clear of the partially canceled inscriptions identified in the affidavit.
D. Any person in whose favor a partially canceled inscription was recorded shall have a cause of action against the title insurer in the event the mortgage, lien, privilege, or other encumbrance which was partially canceled from the clerk's mortgage certificate was legally enforceable at the time of the deletion against the person or property described in that certificate because the obligor under the mortgage, lien, or privilege, was in fact the same person whose property was sold. The cause of action created by this Subsection shall prescribe on the same date that the cause of action to enforce the underlying mortgage, lien, or privilege prescribes.
E. A title insurer whose officer has signed an affidavit that is provided to the clerk of court pursuant to this Section and that contains incorrect statements causing the clerk of court to incorrectly partially cancel the inscription of a mortgage or privilege from his certificate is liable to and shall defend and indemnify the clerk of court, the sheriff, and any person relying upon the partial cancellation on the mortgage certificate for any damages that they may suffer as a consequence of such reliance.
F. The clerk of court shall not be liable for any damages resulting to any person or entity as a consequence of partially canceling from the certificate a mortgage, lien, or privilege pursuant to an affidavit which complies with the provisions of this Section.
G.(1) It shall not be necessary to delete, cancel, or partially release inscriptions that may appear on a mortgage certificate ordered in connection with a judicial sale for the following:
(a) Any assignment, assumption, or modification of a canceled mortgage.
(b) Prescribed judicial mortgages which have not been reinscribed or for which no notice of pendency of action of a revival action is shown on the mortgage certificate.
(2) The sheriff shall proceed with the judicial sale without regard to the inscriptions designated in this Subsection.
Acts 2008, No. 339, §1; Acts 2012, No. 712, §1.