§ 13:4368 — Post judicial sale; cancellation of inferior mortgages, liens, and privileges

§4368. Post judicial sale; cancellation of inferior mortgages, liens, and privileges
A. 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 Code of Civil
Procedure Article 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" that is in compliance with the
requirements of this Section. For purposes of this Section, an "inferior creditor" means the
holder of record of a mortgage, lien, or privilege that is inferior to a seizing creditor's
mortgage, lien, or privilege at the time the encumbered immovable property was sold at
judicial sale.
B. A seizing creditor or its attorney of record may file an affidavit to cancel or
partially release the inferior mortgage, lien, or privilege in accordance with this Section only
if the inferior creditor was provided written notice of seizure prior to the judicial sale.
C. 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 this Section.
D. The clerk of court shall cancel or partially release the inferior mortgage, lien, or
privilege upon the recordation of an affidavit that is in compliance with this Section.
E. The cancellation of a mortgage, lien, or privilege by the filing of an affidavit in
accordance with the provisions of this Section shall have no effect if the mortgage, lien, or
privilege is actually superior to the seizing creditor's foreclosed mortgage, lien, or privilege.
F. Any party recording an affidavit pursuant to this Section shall be subject to the
liability requirements and standards provided in R.S. 9:5174.
G. This Section shall not apply to utility servitudes.
H. For the purposes of this Section "attorney of record" means the attorney of record
in the seizing creditor's suit that results in the judicial sale of the immovable property.

Legislative History

Acts 2018, No. 452, §2.