Security Rights: Civil Law Flashcards
The pledgor is
the creditor to whom the principal obligation that is secured by the pledge is owed.
What is a pledgee’s right to the fruits of the thing pledged?
The pledgee is entitled to receive:
(1) the fruits of the thing pledged (e.g., rent owed under a lease of an immovable that the lessor has pledged),
(2) to retain them, and
(3) to security.
Further, the pledgee may apply these fruits toward the satisfaction of the secured principal obligation. This is known as the right to fruits.
Does a surety have a right of discussion against an obligor or obligee?
No. A surety does not have a right of discussion against an obligor or obligee, which means the surety cannot negotiate that the obligee seek performance from the obligor before seeking it from the surety. A surety does have the right to seek reimbursement or subrogation from the obligor, and to demand security from the obligor.
When is a foreign judgment valid against property located in Louisiana?
When the judgment is rendered or recognized by a Louisiana court and proper filing has occurred.
Three types of suretyships are recognized by law:
commercial (operated as a business), legal (operated by court order), and ordinary (operated as neither a commercial or legal surety).
Is a corporeal movable susceptible to a mortgage?
No.
Real security
Creates a special right on the part of the creditor in property—it is a specific piece of property, which can be seized using the executory process.
possessory v. nonpossessory
What makes the difference here is whether the debtor give up possession of the thing to the creditor—if so, it’s a possessory security
Volitional v. legal security
volitional = by contract; legal = by operation of law
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.
Suretyship may be established for
any lawful obligation, which, with respect to the suretyship, is the principal obligation.
Can sureties be oral?
No. Sureties must be in writing—either act under private signature or an authentic act.
May the intent to be a surety be tacit?
No, it must be express. VERY strict standard.
Suretyship is established upon
receipt by the creditor of the writing evidencing the surety’s obligation. The creditor’s acceptance is presumed and no notice of acceptance is required.
An ordinary suretyship is one that
is neither commercial nor legal. An ordinary suretyship must be strictly construed in favor of the surety.
A commercial suretyship is one that
(1) the surety is engaged in a surety business;
(2) the principal obligor or the surety is a business corporation, partnership, or other business entity;
(3) the principal obligation arises out of a commercial transaction of the principal obligor; or
(4) the suretyship arises out of a commercial transaction of the surety.
A legal suretyship is one
given pursuant to legislation, administrative act or regulation, or court order.
A surety, or each surety when there is more than one, is liable to the creditor for
the full performance of the obligation of the principal obligor, without benefit of division or discussion, even in the absence of an express agreement of solidarity.
(1) No discussion: S can’t insist that C go after D (and his assets) first.
(2) No division: If there are co-S’s, S can’t insist that C limit his recovery from S to just S’s “virile share” of the debt.
The surety may assert against the creditor any defense to the principal obligation that
the principal obligor could assert, except lack of capacity or discharge in bankruptcy of the principal obligor.
What rights does a surety have against the principle obligor?
reimbursement and subrogation
Reimbursement
Dollar for dollar repayment of what S paid C.
Subrogation
Substitution to the rights (all the rights) that C had against D.
If the surety pays the creditor and then the obligor then pays the creditor, who can the surety seek reimbursement from?
A surety may not recover from the principal obligor, by way of subrogation or reimbursement, the amount paid the creditor if the principal obligor also pays the creditor for want of being warned by the surety of the previous payment. In such a case, the surety may recover from the creditor.
What can the surety do if, within ten days after the delivery of a written demand for security, the principal obligor fails to provide the required security or fails to secure the discharge of the surety?
the surety has an action to require the principal obligor to deposit into the registry of the court funds sufficient to satisfy the surety’s obligation to the creditor as a pledge for the principal obligor’s duty to reimburse the surety.
Co-sureties are those who
are sureties for the same obligation of the same obligor. They are presumed to share the burden of the principal obligation in proportion to their number in the absence of a contrary agreement.
A surety who pays the creditor may proceed directly or by way of subrogation to recover from his co-sureties the share of the principal obligation each is to bear. If a co-surety becomes insolvent
his share is to be borne by those who would have borne it in his absence.
A surety who pays the creditor more than his share may recover
the excess from his co-sureties in proportion to the amount of the obligation each is to bear as to him. If a surety obtains the conventional discharge of other co-sureties by paying the creditor, any reduction in the amount owed by those released benefits them proportionately.
The modification or amendment of the principal obligation, or the impairment of real security held for it, by the creditor, in any material manner and without the consent of the surety, has the following effects:
(a) an ordinary suretyship is extinguished; and
(b) a commercial suretyship is extinguished to the extent the surety is prejudiced by the action of the creditor, unless the principal obligation is one other than for the payment of money, and the surety should have contemplated that the creditor might take such action in the ordinary course of performance of the obligation.
Where the suretyship secures indefinite future obligations (e.g., a revolving line of credit), the surety may
terminate the suretyship by notice to the creditor.
However, the termination does not affect the surety’s liability for obligations incurred by the principal obligor, or obligations the creditor is bound to permit the principal obligor to incur at the time the notice is received, nor may it prejudice the creditor or principal obligor who has changed his position in reliance on the suretyship. This means that a suretyship is revocable by the surety until the creditor or debtor acts upon it.
A pledge is an
accessory real right established by contract over certain property to secure performance of an obligation. It is a mechanism for creating real security in movable property.
The pledgor is
the person who owns (or has some other right) in the pledged thing and who pledges it to secure his (or someone else’s) obligation toward the pledgee; the pledgee is the creditor to whom the principal obligation that is secured by the pledge is owed.
A thing susceptible of pledge
(1) A movable that is not susceptible of encumbrance by an Article 9 “security interest.”
(2) The lessor’s rights in the lease of an immovable and its rents.
(a) It’s only the lessor’s rights, as opposed to the lessee’s rights, that may be pledge. True, even the lessee can put his rights up as collateral. But the vehicle for doing that is a mortgage, not a pledge.
(3) Things specifically made susceptible of pledge by special legislation.
The bottom line, then, is this: right now, pledge can be established only on:
(1) rights created by policies of insurance other than life insurance (e.g., property insurance, casualty insurance, or liability insurance), and (2) a lessor’s rights in the lease of an immovable and its rents.
A pledge may be given to secure the performance of
any lawful obligation, including an obligation for a performance other than the payment of money, an obligation owed by someone other than the pledgor, and an obligation that will not arise until the future. These “future obligations” include those incurred pursuant to a “revolving line of credit” arrangement.
If the pledged thing is a corporeal movable, for the pledge to take effect between the parties, the pledged thing must be:
delivered—no writing is required. In fact, a writing without delivery is ineffective.
If the pledged thing is a incorporeal movable or the lessor’s rights under a lease of an immovable, for the pledge to take effect between the parties, the pledged thing must be:
in writing; either a juridical act under private signature or otherwise
Though this “writing” may be in “authentic form”, that is not required; an “act under private signature” is sufficient.
(b) Only the pledgor need sign the writing, for the acceptance of the pledgor is presumed.
To be effective against third parties, the pledge must
a. be effective between the parties.
b. In addition, the pledge agreement must be reduced to writing.
If the pledged thing has been delivered to the pledgee or a third person acting on his behalf
the pledgee may hold onto that thing until the secured principal obligation has been extinguished.
Who is entitled to the fruits of the thing pledged?
(1) The pledgee is entitled to receive the fruits of the thing pledged (e.g., rent owed under a lease of an immovable that the lessor has pledged) and to retain them, as well, as security. Further, he may apply these fruits toward the satisfaction of the secured principal obligation.
Because pledge is an accessory right, the pledgee may enforce it only
to the extent that he may enforce the secured principal obligation.
Can you used “self help” to enforce an accessory pledge?
Generally no; however, you may draw the contract to provide that the creditor can engage in self help.
1) But if the written contract of pledge so provides, the pledgee may, upon default of the principal obligor, dispose of the thing pledged on his own either at an auction open to the public or even in a private sale, provided he acts reasonably and accounts to the pledgor for the proceeds of the disposition.