§ 9:5168 — Promissory notes; loss or destruction; proof by affidavit

§5168. Promissory notes; loss or destruction; proof by affidavit
A. When a promissory note paraphed for identification with a mortgage or act
creating a vendor's privilege on immovable property has been lost or destroyed, the maker
of such note or any other interested party may prove its payment by presentation of the sworn
affidavit of the obligee of record of the mortgage or vendor's privilege specifically attesting
to and testifying as to the truth of all of the allegations required by this Section.
B. The affidavit shall set forth all of the following:
(1) The name of the mortgagor or obligor of the privilege as it appears in the
recorded mortgage or vendor's privilege and the recordation information.
(2) A description of the paraphed promissory note and the encumbered immovable
property.
(3) The affiant is the obligee of record of the paraphed promissory note.
(4) The note has been lost or destroyed and cannot be presented.
(5) The note is paid, forgiven, or otherwise satisfied.
(6) The affiant authorizes the clerk of court and ex officio recorder of mortgages to
cancel the inscription of the mortgage or vendor's privilege.
(7) The affiant has not sold, transferred, or assigned the note to any other person or
entity.
(8) The affiant agrees to be personally liable to and indemnify the clerk of court and
ex officio recorder of mortgages 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 recorder to incorrectly cancel the
recordation of a mortgage or privilege.
C. An affidavit executed according to the provisions of this Section may be
substituted for the original paraphed note as is otherwise required in R.S. 9:5170. No
mandamus proceeding is required to use the provisions of this Section. Neither the clerk of
court and ex officio recorder of mortgages nor his surety on his official bond shall have any
liability for any damages resulting to any person or entity as a consequence of canceling the
inscription of a mortgage or vendor's privilege pursuant to an affidavit which complies with
this Section.
D. The clerk of court and ex officio recorder of mortgages shall not refuse to accept
an affidavit which complies with this Section and shall not require the filing of a mandamus
proceeding as a condition of canceling the inscription of a mortgage or vendor's privilege.
E. Any person in whose favor a cancelled inscription was recorded shall have a cause
of action against the affiant in the event the note was not paid, forgiven, or otherwise
satisfied and the mortgage or vendor's privilege cancelled from the mortgage records was
legally enforceable. The cause of action created by this Subsection shall prescribe on the
same date that the cause of action to enforce the underlying mortgage or vendor's privilege
prescribes.
F. An affiant who has signed an affidavit that is provided to the clerk of court or the
recorder of mortgages pursuant to this Section and that contains incorrect statements causing
the recorder to incorrectly cancel the inscription of a mortgage or privilege from his
certificate is liable to and shall indemnify the clerk of court or the recorder of mortgages, the
sheriff, and any person relying upon the cancellation for any damages that they may suffer
as a consequence of such reliance.

Legislative History

Acts 2008, No. 651, §1.