Louisiana Notary

A Civil Law Tradition

Civil Law Basics

Juridical Acts – Authentic Act

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Juridical Acts – Authentic Act

Art. 1833. Authentic Act. A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.

B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it. The failure to. include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity of the act.

C. If a party is unable or does not know how to sign his name, the notary public must cause him to affix his mark to the writing.

Art. 1835. Authentic act constitutes full proof between parties and heirs An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title. The presumption of its validity is, however, rebuttable, ‘through credible and competent evidence that the act is not what it appears to be on its face. An act that fails to be authentic because of the lack of competence or capacity of the notary public, or because of a defect of form, may still be valid as an act under private signature. C.C. art. 1834. See also discussion in Chapter 7 under The de-facto notary doctrine. For example, if a purported authentic act is challenged on the basis that the purported notary lacks the qualifications to execute the act as a notary, the act is not necessarily invalid. It may be valid as a private act that can be proven by acknowledgment. In such a case, the purported notary to the original invalid authentic act could still be a witness to the instrument as a private act. Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act. C.C. art. 1836.

Juridical Acts – Statutory language for acknowledgement

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Juridical Acts – Statutory language for acknowledgement

R.S. 35:511. Forms of acknowledgment. Either the forms of acknowledgment now in use in this State, or the following, may be used in the case of conveyances or other written instruments, whenever such acknowledgment is required or authorized by law for any purpose: (Begin in all cases by a caption specifying the state and place where the acknowledgment is taken). 1. In the case of natural persons acting in their own right:

(1) In the case of  natural persons acting in their own right: On this ___ day of ___, 20__, ____ before me personally appeared AB (or A B and C D), to me known to be the person (or persons) described in and who executed the foregoing instrument, and acknowledged that he (or they) executed it his (or their) free act and deed.

(2) In the case of natural persons acting by attorney. On this ____ day of ___,20__, before me personally appeared A B, to me known to the person who executed the foregoing instrument in behalf of C D, and acknowledged that he executed it as the free act and deed of said C D.

(3) In this case of corporations or joint stock associations: On this ___ day of ___,20__, before me appeared A B, to me personally known, who, being by me duly sworn (or affirmed) did say that he is the president (or other officer or agent of the corporation or association), of (describing the corporation or association), and that the seal affixed to said instrument is the corporate seal of said corporation ( or association) and that the instrument was signed and sealed in behalf of the corporation (or association) by authority of its Board of Directors (or trustees) and that A B acknowledged the instrument to be the free act and deed of the corporation (or association). ( In case of the corporation or association has no corporate seal, omit the words “the seal affixed to said instrument is the corporate seal of the corporation (or association), and that” the corporation (or association) has no corporate seal”).

(In all cases, acknowledgements taken in this state shall be signed in conformity with the provisions of R.S. 35;12 and either Article 1836 of the Louisiana Civil Code or R.S. 13:3720).

 

Juridical Acts – Acknowledgment by affidavit of vendor, grantor, or witness

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Juridical Acts – Acknowledgment by affidavit of vendor, grantor, or witness

R.S. 13:3720. Instruments attested by witnesses and accompanied by affidavit; admissible in evidence. Any deed, counter letter, power of attorney, declaration, contract, or other instrument, under private signature, purporting to be attested by two or more witnesses and accompanied by an affidavit of the vendor or grantor that the same was signed or executed by him, or by an affidavit of one or more such witnesses, made at or after the signing and execution of such deed, counter letter, or other instrument, and setting forth substantially that the instrument was signed or executed by the party or parties thereto in the presence of the affiant or affiants, shall be deemed, taken and accepted, prima facie, and without further proof as being true and genuine, and shall be so received and accepted in evidence in the courts of Louisiana, without further proof. In the event that the instrument referred to in the above paragraph is executed outside of the state of Louisiana then the fact that the notary public is one of the witnesses to either the instrument itself or the attestation thereof or both shall not affect the validity or admissibility of the document as set forth in the preceding paragraph. The provisions of this Section shall be deemed remedial and shall apply to all instruments heretofore executed and authenticated as well as to such instruments executed and authenticated subsequent to July 30, 1952.

Juridical Act – Acknowledgement by party

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Juridical Act – Acknowledgement by party

Art. 1836. Act under private signature duly acknowledged. An act under private signature is regarded prima fade as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof. An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law. Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.

Juridical Act – Act under private signature

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Juridical Act – Act under private signature

Art. 1837. Act under private signature. An act under private signature need not be written by the parties, but must be signed by them.

Art. 1838. Party must acknowledge or deny signature. A party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his. In case of denial, any means of proof may be used to establish that the signature belongs to that party.

Art. 1834. Act that fails to be authentic. An act that fails to be authentic because of the lack of competence or capacity of the notary public, or because of a defect of form, may still be valid as an act under private signature.

Mortgage – Miscellaneous provisions

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Mortgage – Miscellaneous provisions

§5384. Assumption of a mortgage on immovable property by a third person An original vendor’s privilege or first mortgage, or both, is not extinguished nor is its ranking subordinated to any other mortgage, lien, privilege, or encumbrance when the obligation it secures is assumed by a new obligor, notwithstanding the release of the original obligor.

§5389. Additional funds advanced under mortgage or security agreement.

A. A mortgage or security interest shall secure additional funds that may be advanced by the mortgagee or secured party for the protection, preservation, repair, or recovery of the mortgaged or encumbered property, or the protection and preservation of the mortgagee’s mortgage or secured party’s security interest there under. A mortgage or security agreement may provide that the mortgagee or secured party may, at its sole election, purchase insurance or pay taxes on the mortgaged or encumbered property should the mortgagor or debtor fail to comply with its contractual obligations to do so.

B. Unless the mortgage or security agreement provides otherwise, all additional sums advanced by the mortgagee or secured party under the provisions of Subsection A are deemed to bear interest at the rate provided under the mortgage note or other secured indebtedness from the date of each such advance until repaid in full by the mortgagor or debtor.

§5393. Combination forms.

A. A mortgage note and mortgage or a promissory note and security agreement under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.) may be combined under a single form, with the maker/mortgagor or debtor signing in one location on the face of the form, agreeing to the note and mortgage or security agreement covenants on the face and reverse sides thereof.

B. When one form combines the mortgage and mortgage note under the provisions of Subsection A, it is not necessary to paraph the mortgage note “Ne Varietur” for identification with the mortgage.

C. The combining of the mortgage note and mortgage or the note and security agreement under one form, with only one combined signature by the maker/ mortgagor/debtor, has no effect on the validity or enforceability of the note or the mortgage or security agreement, or on the mortgagee’s or secured party’s rights to foreclose under the mortgage or security agreement by means of executory process.

Mortgage – Recordation of collateral mortgages

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Mortgage – Recordation of collateral mortgages

§5554. No requirement of registry of transfer, assignment, pledge, or security interest in or of the written obligation, collateral mortgage, or vendor’s privilege. There is no requirement that there be registry of

(1) Any evidence of pledge of the written obligation secured by a collateral mortgage or a vendor’s privilege.

(2) Any transfer or assignment of the written obligation secured by a collateral mortgage or a vendor’s privilege, or of the collateral mortgage or vendor’s privilege.

(3) Any security interest in a collateral mortgage or vendor’s privilege or written obligation secured by either.

Mortgage – Effective date

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Mortgage – Effective date

§5551. Effective date of a collateral mortgage. A. A collateral mortgage becomes effective as to third parties, subject to the requirements of registry of the collateral mortgage, when a security interest is perfected in the obligation secured by the collateral mortgage in accordance with the provisions of Chapter 9 of the Louisiana Commercial Laws, R.S. 10:9-101, et seq.

B. A collateral mortgage takes its rank and priority from the time it becomes effective as to third parties. Once it becomes effective, as long as the effects of recordation continues in accordance with Articles 3328 through 3334 of the Civil Code, a collateral mortgage remains effective as to third parties (notwithstanding any intermediate period when the security interest in the secured obligation becomes unperfected) as long as the secured party or his agent or his successor retains possession of the collateral mortgage note or other written obligation, or the obligation secured by the mortgage otherwise remains enforceable according to its terms, by the secured party or his successor.

C. As long as the effects of registry of the collateral mortgage continue, in accordance with Articles 3328 through 3334 of the Civil Code, if there is a termination, remission, or release of possession of the written obligation, a collateral mortgage takes its rank and priority from the time a new security interest is perfected in the written obligation, regardless of whether the secured party is the original secured party, his successor, or a new or different secured party.

Mortgage – Collateral mortgage defined

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Mortgage – Collateral mortgage defined

R.S. 9:5550. Definitions. (1) “Collateral mortgage” shall mean a mortgage that is given to secure a written obligation, such as a collateral mortgage note, negotiable or nonnegotiable instrument, or other written evidence of debt, that is issued, pledged, or otherwise used as security for another obligation. A collateral mortgage or collateral chattel mortgage may provide on its face that the mortgage is granted in favor of a designated mortgagee and any future holder or holders of the collateral mortgage note.

Mortgage – “In rem” mortgage

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Mortgage – “In rem” mortgage

Art. 3297. Restrictions upon recourse of mortgagee. The mortgagee’s recourse for the satisfaction of an obligation secured by a mortgage may be limited in whole or in part to the property over which the mortgage is established.

RS. 9:5391. Additions, accessions, and natural increases subject to mortgage. A mortgage of immovable property without further action attaches to present and future component parts thereof and accessions thereto, without further description and without the necessity of subsequently amending the mortgage agreement.