8. Code III: Security Devices Flashcards
Liberative Prescription on a Promissory Note
5 years from the date payment is EXIGIBLE
interrupted by payment
when secured by a mortgage - the mortgage (accessory) prescribes when the promissory note (principal) prescribes
Judicial Mortgage
created when the judgement creditor of a money judgement files a certified copy of the judgement in the mortgage records
effective against third parties 10 years from the date of the judgement
effective as to all of the debtor’s rights in immovable property located in the parish where filed
general mortgage
Suretyship
an accessory contract
by which a person binds himself to a creditor
to fulfill the obligation of another
upon the failure of the latter to do so
depends on the existence of a principal obligation to be enforceable
Commercial Surety
(a) surety is paid for giving promise or pay, or
(b) principal or surety is a business entity, or
(c) the guaranteed obligation arises from a commercial transaction
Extinguishment of Suretyship by Material Impairment of the Real Security
only for commercial sureties
release of the mortgage over the real property (but only to the extent the impairment PREJUDICES the surety)
Extinguishment of Suretyship by Modification
only for commercial sureties
obligee modifies the obligation in some material way without the surety’s consent (but only to the extent the modification HARMS the surety)
Mortgage property description did not include a number of buildings on the lot of land, only a description of the lot of land itself
the mortgage of a corporeal immovable includes component parts. it is not necessary to describe the component parts to have an effective mortgage.
Privilege: Definition
a privilege is a form of legal security
that is placed on certain property of a debtor
without the debtor’s consent
- it arises by operation of law
Security Right
a legal right against another person or against a piece of property
designed to help a creditor collect on a debt
accessory right
Surety’s Rights Against Debtor
- reimbursement
- subrogation
Legal Mortgage
Legal Mortgages arise as a matter of law. It is a general mortgage because attaches to all immovable property owned by debtor.
Judicial Mortgage
Judicial Mortgages arises when a party who has obtained a judgement for the payment of money files a certified copy of the judgment in the mortgage records of any parish where the judgment debtor’s immovable property is located.
A judicial mortgage automatically encumbers all the judgment debtor’s present and future rights in immovable property located in the parish, though the effect of a judicial mortgage must be reestablished every 10 years.
Mortgage Lapse
The mortgage records are self-purging, and mortgages eventually lapse, becoming ineffective against third parties.
Any mortgage is effective on the public records for 10 years after the date on the act of mortgage. The period is measured according to the date of the mortgage, NOT the date of filing.
Reinscription of Judicial Mortgage
- Go back to court and revive judgment
- After revival and before lapse (10 years after entry of judgment) file in MORTGAGE records
Pledge
= lessor’s rights in the lease of an immovable and its rents
owner of an immovable gives creditor their rights on more or more leases of that immovable property and its rents to secure an obligation owner/lessor to a creditor
Pledge Creation
(same as mortgage)
- written agreement
- signed by pledgor (owner of immovable)
- stating amount/ maximum
- describing PRECISELY the nature and situation of the immovable property
Effectiveness of Pledge as to 3P
effective as to 3P if filed in MORTGAGE records in parish where immovable property is located
Effectiveness of Pledge as to Lessees
WRITTEN notice of the pledge binding on the lessee is required
(creditor directly receives payments after lessee gets written notice)
Special Rules of Pledges
- Prohibition is invalid (restriction/ triggering release/ termination)
- Modification without consent effective against pledgee IF:
- good faith AND
- rent not fully owed (if past due rent) WHEN notice delivered to lessee
Privileges
real security devices that arise by operation of law (like mortgage but involuntary)
Privilege Types
- privilege of repairpeople
- lessor’s privilege
- vendor’s privilege
Privilege of Repairpeople
privilege in the thing that they made/ repaired to secure FEE for repair service/ part/ labor
Privilege of Repairpeople Exists ONLY IF:
- repairperson is in POSSESSION of the goods
IF NOT:
- for 120 days from last day on which materials and/or labor were supplied (120 days from last day of WORK not last day of possession)
Lessor’s Privilege
privilege on all of the lessee’s movable property located ON the leased immovable property to secure RENTAL PRICE and ANY OTHER LEASE OBLIGATIONS
Lessor’s Privilege is Over:
things ON the leased premises OR
privilege is extended for 15 days after property is removed IF:
1. the lessor did not consent AND
2. the movables can still be identified as the lessee’s property
Vendor’s Privilege
privilege on any movable or immovable property sold to secure the PURCHASE PRICE
Vendor’s Privilege Over Movables
Movable must remain in buyer’s possession
Vendor’s Privilege Over Immovables
must be recorded in MORTGAGE records
AND
must be a credit sale
- act of credit sale must be recorded in BOTH mortgage and conveyance records and act of sale evidences that price has not yet been paid
Act of Credit Sale Requirements for Vendor’s Privilege
- must be recorded in BOTH mortgage and conveyance records
and
- act of sale evidences that price has not yet been paid
A recorded vendors privilege beats a prior mortgage IF …
act of credit sale is recorded with in 7 days of the execution of the act of sale
15 days if recording in different parish than where the act of credit sale is located
Ranking of Privileges
- repairperson > lessor
- lessor > vendor
- vendor > repairperson
security interest > ALL privileges (except repairman in possession) - regardless of timing
Suretyship
K whereby surety promises to pay creditor if debtor does not
Terms of Suretyship
surety binds himself to a creditor to fulfill debt of obligor upon his failure to do so
Suretyship depends on ____________ to be enforceable
Suretyship depends on the existence of a principal obligation to be enforceable
Form for Suretyship
(1) writing (act under private signature)
(2) express (clear and unambiguous about surety’s promise to pay)
Ostensible Suretyship
recharacterization of apparent solidarity liability of a co-obligor as SURETY IF:
(1) principal cause of K with creditor is to guarantee performance of the obligation
AND
(2) the creditor clearly knows this
e.g. parent co-signing car loan
Type of Surety
- legal
- commercial
- ordinary
Commercial Suretyship
(a) surety is paid for giving promise to pay
(b) surety or debtor is a business entity OR
(c) principal obligation or suretyship K arises out of a commercial transaction
Ordinary Suretyship
default if not legal or commercial
(nonbusiness/ uncompensated/ personal guarantees)
Defenses Where Type of Suretyship is RELEVANT
- material modification of obligation without surety’s consent
- impairment of collateral without surety’s consent
Impairment of Collateral Without Surety’s Consent
- if ordinary suretyship = EXTINGUISHED
- if commercial suretyship = extinguished to extent modification/ impairment actually injures the surety
Commercial Suretyship Impairment of Collateral Without Surety’s Consent Burden
burden on creditor to show extent surety is NOT injured
material modification of obligation without surety’s consent only applies for _____________ and ________ suretyships
Ordinary and commercial suretyships
Defenses Where Type of Suretyship is NOT RELEVANT
- defenses of principal obligor can be asserted by surety
- remission of principal obligor
Defenses of Principal Obligor
type of suretyship irrelevant
vices of consent/ legality
NOT: lack of capacity/ discharge in bankruptcy
Remission of Principal Obligor
type of suretyship irrelevant
surety’s accessorial obligation is released if creditor REMITS principal obligation
- remission of co-sureties
Remission of Co-Sureties
releasing one co-surety remits THAT surety’s virile share
(default = equal per capital division of OG debt)
Waiver of Surety Defenses
any or all 4 can be waived by surety
K “qualified, conditioned, or limited in any lawful manner”
Surety’s Rights Against Debtor
- reimbursement
- subrogation
Reimbursement
- if exigible = surety has right to seek reimbursement from debtor
- if not exigible = NO reimbursement (when principal obligation prescribed/ extinguished)
Subrogation
surety steps into creditor’s shoes, exercising all rights he had against debtor
- if full payment = all rights
- if surety pays only part = surety’s subrogation right subordinate to creditor’s right to collect remainder of debt
Exigible
due and owing
Rights against Co-Surities
solidarily liable co-obligors
- contribution
Contribution
if one of multiple sureties pays creditors, paying surety can collect contribution of non-paying sureties’ virile shares
Involuntary Contribution
if 1 surety is unable to contribute surety, then reallocated to other in equal shares
Continuing Guarantees
surety agrees to pay general future indebtedness
surety can terminate by NOTICE TO CREDITOR
Termination by Notice to Creditor
applies after notice given = prospective termination
also includes any obligation creditor must allow debtor to incur after
Creditor Learns that Surety Died
sufficient notice to terminate suretyship
Mortgage
a real accessory right that allows mortgagee to have immovable property seized and sold to pay secured debt in preference to other claims
Mortgage attaches to _________
immovable property and related rights ONLY.
Mortgage depends _____________
on the existence of valid and enforceable principal obligation.
Types of Mortgages
- legal
- judicial
- conventional
Legal Mortgage
arises as a matter of law
Judicial Mortgage
creditor on a money judgement files a certified copy of judgment in mortgage records where debtor has immovables
Prescription of Money Judgment
10 years after rendered
must be revived in ordinary proceeding filed every 10 years
Conventional Mortgage
created by CONTRACT with debtor
Extends only to specific identified property
Conventional Mortgage Creation Requirements
- written agreement
- signed by mortgagor
- state amount OR max amount secured
- precise description of the immovable property
Conventional Mortgage Creation Requirements: Signature by Mortgagor
- mortgagee need not sign (consent presumed)
- can be someone on behalf of mortgagor
- no authentic act required
- no paraph required
Mortgagor NEED NOT BE _______
OBLIGOR
In Rem/ Non- Recourse Mortgage
= mortgage securing obligation not owned by property owner
Conventional Mortgage Creation Requirements: State Amount or Max Amount Secured
- stated amount plus interest
- fluctuating line of credit (MUST STATE A DOLLAR FIGURE OF MAX AMOUNT OUTSTANDING)
Conventional Mortgage Creation Requirements: Precise Description of Immovable Property
describe precisely the nature and situation over which the mortgage is given
LEGAL DESCRIPTION
Conventional Mortgage Creation Requirements: Precise Description of Immovable Property
what is NOT sufficient
- street address
- omnibus description
- general transfer of future property (specific description of future property is ok)
State Law/ Privilege Alternatives to Mortgage Rights
state law provides VENDORS of immovable rights similar to mortgage
e.g. dissolution for failure to pay purchase price/ resolutory condition/ nullity of sale
Making Mortgages Effective Against 3P
- recording
- inscription not lapsed
Recording Mortgage - Public Records Doctrine
mortgage is effective against 3P when entire ACT of mortgage is filed for registry in the MORTGAGE records of parish where the immovable property is located
NO EXTRACTS - entire act of mortgage or certified copy recorded in another parish
FIRST TO FILE WINS
Duration of Inscription
10 years after date of ACT of mortgage
NOT date of filing
EXCEPTION
Exception for 10 Year Rule
if mortgage describes 9+ year maturity date
= effective for 6 years after the maturity date
Notice of Reinscription
= to maintain effective recording, MUST BE FIELD BEFORE LAPSE
extends mortgage effectiveness for 10 years
Notice of Reinscription Requirements
- name of mortgagor
- recordation number or other info about OG filed mortgage
AND - declares mortgage reinscribed
Transfer of the Obligation
transfers of secured note automatically transfers mortgage
Transfer of the Mortgage Property
possessor of property subject to recorded mortgage = “third possessor”
Private Works Act
people who supply labor and materials to improve/ contract immovables get a privilege on that immovable to secure unpaid claims for materials and labor
Private Works Act Gives Claimants 2 Things:
- claim against the OWNER
- a PRIVILEGE on the immovable
Owner’s Way to Avoid a PWA Claim
- notice of K
AND - surety bond
if owner does both, then he avoids personal claims against him by non-privity claimants AND privileges over his property of PWA
Notice of K Requirements for PWA
- SIGNED by owner and gen contractor AND includes their NAMES and MAILING ADDRESSES
- contain a COMPLETE PROPERTY DESCRIPTION of the immovable where work is to be performed AND name of constriction project (same standard as mortgage)
- describe the WORK that will be done
- describe the K PRICE or if not set, the calculation method
- file in MORTGAGE RECORDS before work begins
Work Begins When:
(a) placing of materials with at least $100 on the immovable subject to construction
OR
(b) by CONDUCT of other work on the immovable the effect of which is VISIBLE from a simple inspection AND reasonably indicates that work has begun
[NOT DIRT WORK- they are still protected by PWA, just don’t have to START the work]
Surety Bond Requirements for PWA
in the amount equal to the cost of the construction project
must get a certificate and attach to the notice of K and file together BEFORE work beings
Possible PWA Claimants
- owner
- general contractor
- subcontractors
- sellers of movables (materialmen)
- lessors of movables (to clear land/ dirt)
- laborers
Creating PWA Claims and Privileges
- Arising (claim + privilege)
- Preserving
PWA: Arising - Claim
as soon as claimant is owed money and it is not paid, claim arises under PWA
PWA: Arising - Privilege
exists as soon as claimant is owed money
EXCEPTIONS
PWA: Arising - Privilege Exception for GC’s
NO PRIVILIGE if:
1. project is >$100K
AND
2. no notice of K is filed (or improper/ untimely)
PWA: Arising - Privilege Exception for Lessors of Movables
must deliver notice to GC and if notice of K is filed, then notice to owner
notice of the fact that the lessor leased/ intends to lease immovables to either GC or contractor for use of the work
PWA: Arising - Privilege Exception for Lessors of Movables
NOTICE Time Limit
no time limit for notice
BUT if file >30 days from when work begins, then privilege only includes RENTS that come due AFTER notice is given
PWA: Arising - Privilege Exception for Sellers of Movables
sellers of movables who have sold to a subcontractor AND where notice of K has been filed
must deliver notice of nonpayment of price to the owner and to GC
PWA: Arising - Privilege Exception for Sellers of Movables
NOTICE time limit
no later than 75 days after last day in the month in which movables that were sold were delivered to the job site
PWA: Preserving - Requirements for Statement of Claim/ Privilege
- signed by claimant
- reasonably identify improved immovable
- describe the amount being claimed and ID person who failed to pay
- describe work done with specificity
+ file in parish where immovable prop subject to construction is located
If you are a claimant (1) without privity AND (2) notice of K was timely filed:
claimant must take copy of claim or privilege to be filed and give to owner at address provided in notice of K in addition to filing in mortgage records
PWA: Preserving - Filing in Time
60 days after the EARLIER OF:
1. filing of notice of termination
OR
2. date of substantial completion or abandonment
EXCEPTIONS
PWA: Preserving - Filing in Time EXCEPTIONS
- 30 days after notice of termination if notice of K timely filed and claimant does not have privity with owner (if no termination, 6 months after substantial completion/ abandonment)
- 60 days after notice of termination if GC (if no termination, 7 months after substantial completion/ abandonment)
Substantial Completion
either
1. last work is performed or materials delivered to construction site
OR
2. owner accepts the improvements or possesses/occupies property even if minor/inconsequential things that remain to be done
Abandonment
- owner fires GC
OR - owner subjectively and in good faith manifests abandonment or discontinuance of the construction project
PWA Privilege Effective Against 3P:
the earlier of
1. when notice of K properly and timely filed
OR
2. when work begins
EXCEPTION: no work affadavits
No Work Affidavits
creates an IRREBUTABLE PRESUMPTION that work has not begun as of a particular date and time as indicated in the affidavit
No Work Affidavit Requirements
- signed by an engineer/ surveyor/ architect
- declare that work has not begun as of a certain date and time
- contain complete property description
- filed in the mortgage records no later than 4 business days before or 4 business days after the filing of a mortgage or privilege
AND - be based on an inspection that occurred no later than 4 business days before or 4 business days after filing of a mortgage or privilege
Ranking Line-Up
by category, not time
1. government liens (ie unpaid prop taxes)
2. any privilege held by LABORERS
3. mortgagees/ holder of lessors privileges where they became effective to 3P before PWA privileges became effective
4. privilege of subcontractors/ sellers of movables/ lessors of movables (share pro rata)
5. Privileges of GC/ architects/ surveyors/ engineers hired directly by owner
6. mortgages and vendors privileges that became effective AFTER PWA privilege became effective
How to Enforce a PWA Privilege
file lawsuit against owner under ordinary proceedings and enforce privileges as well
Prescription of PWA Privilege
1 year from filing of statement of claim and privilege
Maintenance of PWA Privilege
claimant must file a notice of LIS PENDENS into mortgage records within 1 year of filing of statement of claim and privilege
= to maintain PWA prove after filing suit
Maintenance of PWA Privilege
claimant must file a notice of LIS PENDENS into mortgage records within 1 year of
A mortgage is a ________. It must be ___________ and must _________________, the _______________, and must be signed by the ____________.
A mortgage is a CONTRACT. It must be in WRITING and must state PRECISELY the NATURE and SITUATION of the immovable, the AMOUNT or the MAXIMUM amount of the obligation that the mortgage secures, and must be signed by the MORTGAGOR.
The __________ is the party in whose favor the mortgage is granted, and the ____________ is the party granting the mortgage.
The MORTGAGEE is the party in whose favor the mortgage is granted, and the MORTGAGOR is the party granting the mortgage.
A conventional mortgage may be established to secure performance of ________________.
A conventional mortgage may be established to secure performance of any lawful obligation.
An obligation to pay rent under a lease is permissible. The prescriptive period for the payment of rent is __________ from when the rent is due and exigible.
An obligation to pay rent under a lease is permissible. The prescriptive period for the payment of rent is three years from when the rent is due and exigible.
When the rent is due on the first of each month of the term, prescription runs __________ for each rental payment on the first of the month when it becomes due and is not otherwise paid.
When the rent is due on the first of each month of the term, prescription runs separately for each rental payment on the first of the month when it becomes due and is not otherwise paid.
The transfer of an obligation secured by a mortgage . . .
includes the transfer of the mortgage itself.
When transfer of an obligation securing a mortgage occurs, the transferor warrants . . .
the existence,
validity and
enforceability
of the mortgage only to the extent that he or she warrants the existence, validity, or enforceability of the principal obligation that it secures.
An assignment is . . .
the transfer of rights from one party to another AND
all incorporeal rights (such as the right of a lessor under a lease or of specific rights thereunder) are assignable.
In general, documents relative to the creation, modification, or termination of rights in an immovable (including security rights) only impact third persons if . . .
they are filed for registry in the public records of the parish where the relevant immovable is located.
A transferee of an obligation secured by a mortgage is not bound by any unrecorded act releasing, amending, or otherwise modifying the mortgage if . . .
he is a third person with respect to that unrecorded act.
A partial release of a mortgage over one of the lots constitutes . . .
an act which modifies a security right in immovable property,
THUS it must be recorded in the mortgage records in order for third persons to be bound by it.
Privileges under the Private Works Act (“PWA”) encumber . . .
immovables on which construction work is performed for amounts due.
In order for a PWA privilege to have effect, . . .
it must both arise and be preserved by the claimant.
The general rule is that PWA privileges arise when the claimant . . .
is due money and not paid.
EXCEPTION FOR GC!
General Contractor
one who contracts with the owner of immovable property to perform all or substantially all of a work on the property
In order for a general contractor’s privilege to arise, it must file a ________________ into the mortgage records of the parish where the to-be-improved immovable is located prior to the time work begins on it, but only if the project cost will exceed ___________.
In order for a general contractor’s privilege to arise, it must file a notice of contract into the mortgage records of the parish where the to-be-improved immovable is located prior to the time work begins on it, but only if the project cost will exceed $100,000.
Notice of Contract
an abbreviated version of the construction contract between the owner and the general contractor
Subcontractors are given claims and privileges under the PWA, provided that . . .
such claims and privileges properly arise and are preserved.
Subcontractor
those that are engaged directly by a contractor to perform all or a part of a work contracted for by the contractor
Once preservation has occurred, the claimant must commence an action against the owner to enforce the PWA claim or privilege within ________ from the date of filing the statement.
Once preservation has occurred, the claimant must commence an action against the owner to enforce the PWA claim or privilege within one year from the date of filing the statement.
PWA privileges generally rank from the date that “work” begins, which is when materials worth at least $100 are delivered to the worksite or when “other work” is conducted on the site that is visible from a simple inspection and reasonably indicates that work has begun.
PWA privileges generally rank from the date that “work” begins, which is when materials worth at least $100 are delivered to the worksite or when “other work” is conducted on the site that is visible from a simple inspection and reasonably indicates that work has begun
Suretyship Requirements
express,
in writing, and
signed by the party acting as surety
a predial servitude is inseparable from the dominant estate, and, as such, the dominant estate _________ be encumbered separately from the servitude
a predial servitude is inseparable from the dominant estate, and, as such, the dominant estate CANNOT be encumbered separately from the servitude
(??? CHECK- typo in question? 3.2 Feb 2019)
A conventional mortgage may be established to secure performance of any lawful obligation, including . . .
debts that were incurred in the past and are still outstanding, as well as those that are in the present or in the future.
The only caveat to the rule that a conventional mortgage can secure performance on any lawful obligation is that the amount the mortgage secured at any one time is limited by . . .
the amount or maximum amount so stipulated in the mortgage itself.
A vendor’s privilege on an immovable is . . .
a security right that is granted by operation of law whenever a person sells immovable property, but the purchase price has not yet been paid.
A vendor’s privilege . . .
gives the privilege holder the right to have the encumbered property seized and sold under legal process in satisfaction of the debt owed.
the general rule is that _______ are always superior to ________.
the general rule is that privileges are always superior to mortgages
with regard to a vendor’s privilege on an immovable, the privilege will only be superior to a prior recorded mortgage of the vendee/buyer if . . .
the privilege becomes effective as to third persons within seven days (or 15) of the date that the act creating the vendor’s privilege was passed
If the act is not recorded timely (under either of these scenarios), then the privilege will rank as to any prior recorded mortgages from the date of filing the act of credit sale.
The period of liberative prescription for promissory notes, whether negotiable or not, is _____________
The period of liberative prescription for promissory notes, whether negotiable or not, is five years
The triggering of the running of prescription is from the day that the note (or any installment thereunder) becomes . . .
due and exigible.
If an optional acceleration clause is contained in the promissory note, then the creditor may, at its choosing and upon a default under any installment, . . .
declare all future installments due and payable (and thus collectable) at that time.
A mortgage is only extinguished when . . .
all of the secured obligations have prescribed
A mortgage may secure obligations that may arise in the future and the mortgage has effect between the parties from the time the mortgage is established, notwithstanding the date such obligations arise.
The filing of an affidavit containing certain information creates an irrebuttable presumption that no work has begun as of a stipulated date and time and that such a state of affairs remains true until a subsequent mortgage is filed, provided however that the inspection occurs, and the affidavit is filed, within four business days before or within four business days after the filing of the competing mortgage
mortgagor is entitled to conclusively rely upon the facts asserted in a
timely filed affidavit from a qualified inspector that work has not begun (it is worth nothing that a person who gives a false affidavit shall be responsible for any loss or damage suffered by any person whose rights are adversely affected—so the inspector may have liability).
demand note
technically means that the payor must pay whenever the payee makes demand, but that does not mean prescription only commences upon demand.
If a promissory note contains an acceleration clause, it . . .
makes the full amount of the loan to become due (and collectable) upon mortgagee’s failing to pay any single amount as it became due.
This would also have an impact on the running of prescription, as it would run on the entire amount at that moment.
acceleration only occurs if . . .
mortgagor exercises the right to accelerate
Tolling Agreements
contracts by which parties involved in a dispute consent to extend the relevant liberative prescriptive period
Tolling Agreement Requirements
- express
- in writing
Tolling Agreement Restrictions
- may only be made after liberative prescription has commenced to run
BUT - before it accrues AND,
- although successive agreements are allowed, any single agreement may not extend prescription for more than one year
mortgaging of future property is permissible, the property must still be . . .
described with the same specificity as though the mortgage was being granted over property already owned by the mortgagor.
A mortgage may secure obligations that arise in the future, and, when it does, the mortgage . . .
remains valid against the mortgagor even if the borrower repays all outstanding loans.
This remains the case until a proper demand for termination is given by the mortgagor to the mortgagee
When a note is payable on demand, prescription runs from the date of demand. If no demand for payment is ever made, an action to enforce the note is barred if . . .
neither principal nor interest on the note has been paid for a continuous period of five years.
future advance mortgage
securing obligations that may arise in the future
the mortgage has effects between the parties from the time the mortgage is established
notwithstanding the date such obligations arise
Methods of Extinguishing Mortgage
A. The extinction or destruction of the thing mortgaged.
B. Confusion as a result of the obligee’s acquiring ownership of the thing mortgaged.
C. Prescription of all the obligations that the mortgage secures.
D. Consent of the mortgagee.
