RÉSUMÉ DIGEST
ACT 452 (HB 172) 2018 Regular Session Garofalo
Existing law provides that the property sold at a sheriff’s sale shall be sold with a release of
the mortgage of the seizing creditor and inferior mortgages and liens, and the sheriff shall
direct the recorder of mortgages to cancel those inscriptions in so far as they affect the
property sold.
New law provides for the cancellation or partial release of inferior inscriptions by the clerk
of court or proper filing officer, regardless of whether they appeared on the mortgage
certificate in the foreclosure proceeding.
New law provides that if the inscription of an inferior mortgage, lien, or privilege
encumbering the immovable property sold through a judicial sale is not cancelled as required
by C.C.P. Art. 2376, the seizing creditor or its attorney of record may have the inferior
mortgage, lien, or privilege cancelled or partially released as to the immovable property sold
by recording in the mortgage records of the parish in which the immovable property sold is
located an "affidavit to cancel an inferior encumbrance".
New law requires written notice of seizure to the inferior creditor prior to the judicial sale.
New law provides that an affidavit executed by a seizing creditor or its attorney of record to
cancel or partially release an inferior mortgage, lien, or privilege shall include all of the
following information:
(1)The name, mailing address, telephone number, and email address of the seizing
creditor or its attorney of record.
(2)The name of the court, case name, and docket number of the action under which the
seizure and sale of the immovable property was ordered.
(3)The date of the judicial sale.
(4)A description of the seizing creditor's foreclosed mortgage, lien, or privilege,
including the recordation information and recording date.
(5)A description sufficient to identify the foreclosed immovable property.
(6)A description of the inferior mortgage, lien, or privilege, including the recordation
information and recording date, and a declaration that the described mortgage, lien,
or privilege requested to be cancelled or partially released is inferior to the foreclosed
mortgage, lien, or privilege.
(7)A certification that written notice of seizure was given to the inferior creditor prior
to the judicial sale, and a copy attached of the written notice together with evidence
that it was delivered to the inferior creditor.
(8)A request that the clerk of court cancel or partially release the identified inferior
mortgage, lien, or privilege pursuant to new law.
New law requires the clerk of court to cancel or partially release the inferior mortgage, lien,
or privilege upon the recordation of an affidavit that is in compliance with new law.
New law provides that the cancellation of a mortgage, lien, or privilege shall have no effect
if the mortgage, lien, or privilege is actually superior to the seizing creditor's foreclosed
mortgage, lien, or privilege.
New law requires that any party recording an affidavit pursuant to new law shall be subject
to the liability requirements and standards of existing law.
New law excepts utility servitudes from new law.
New law defines "attorney of record" and "inferior creditor". Effective August 1, 2018.
(Amends C.C.P. Art. 2376; Adds R.S. 13:4368)