Miller v. Miller, 1957 Louisiana Supreme Court Decision

PARTIAL DATION EN PAIEMENT

BY AND UNITED STATES OF AMERICA

STATE OF LOUISIANA

TO PARISH OF

BE IT KNOWN THAT BEFORE the undersigned Notary or Notaries Public, duly commissioned and qualified in and for the respective Parishes of execution, and in the presence of the witnesses hereinafter named and undersigned PERSONALLY CAME AND APPEARED:

, whose Tax Identification Number is , and , whose Tax Identification Number is , husband and wife, domiciled in , and having as their present mailing address ; referred to jointly herein as "APPEARER";

who declared and acknowledged to me, Notary, that APPEARER borrowed certain sums from , whose Tax Identification Number is , hereinafter referred to as "", on a certain mortgage loan obligation, namely:

A certain promissory note executed by APPEARER to the order of in the principal amount of , bearing interest at the rate of per annum and providing for attorney's fees in the event of being placed in the hands of an attorney for collection, payable , which promissory note is paraphed for identification with that Mortgage dated the same date, recorded at Mortgage of the mortgage records of , Louisiana and bearing against the property described below.

The parties hereto declare that as of this date there is due on the mortgage obligation the amount of , with interest at the rate of per day from until paid, plus of said principal and interest as attorney's fees.

Wishing to be released from the said indebtedness and to reimburse the said for a part of the indebtedness due and owing as hereinabove stated, and being unable to pay the amount represented by said note, and in accordance with the provisions of Articles 2655 to 2659, inclusive, of the Revised Civil Code of the State of

Louisiana, APPEARER does hereby make unto the said a Partial Dation En Paiement, whereby APPEARER does hereby transfer, convey, deliver, grant, assign and set over unto the said CREDITOR, here present and accepting, all and singular, in partial satisfaction of the indebtedness recited above, the following described property:

The property conveyed herein has as its address .

TOGETHER WITH all ancillary rights pertaining to or arising out of the ownership of the said property, including specifically, but not exclusively, all utility or other deposits, all escrow deposits, all prepaid insurance, or return premiums and all other rights or credits of a similar nature, existing or arising hereafter.

TO HAVE AND TO HOLD said property as herein described unto the said and assigns forever, with full and general warranty of title, free from any lien, mortgage or encumbrance whatsoever, except that Mortgage referred to above, and with full subrogation to all the rights and actions of warranty which APPEARER has or may have against all preceding owners or vendors. APPEARER specifically warrants that:

1. APPEARER knows of no adverse claim to the property or litigation affecting title to the property;
2. No petition in bankruptcy has been filed by or against either APPEARER;
3. APPEARER knows of no notice from any public authority requiring any improvement or change in the property; and
4. All parties who have furnished labor or services for maintenance, repair or improvement of the property have been paid in full;
5. APPEARER has not received notice from any environmental regulatory agency that the property described above is or may be subject to any notice or violation, penalty, assessment, administrative or judicial enforcement process directed toward remediation of environmental violations,

6. contaminations, pollution or hazards, and APPEARER has no actual knowledge of any condition on or in the property that would subject , or any assigns of , to such enforcement; and
7. APPEARER has not received notice and has no knowledge of any private claim or threatened private claim by any individual or entity for liability of any kind whatsoever, including without limitation, personal injury, present or future medical costs, property damage, diminution in value or loss of resources, in any way related to the condition of the property.

@@@Commercial@@@ APPEARER and acknowledge that the mortgage indebtedness and mortgage referred to above were and are commercial transactions as defined in LSA-R.S. 13:4108.1 and that the property transferred herein is agreed to have a reasonably equivalent value of . This transfer and conveyance of said property by the said APPEARER is made and accepted in partial satisfaction of the indebtedness recited above, and only to the extent of , APPEARER and agreeing that APPEARER and each of them shall remain solitarily liable to in the amount of , being the difference between the total indebtedness recited above and .

@@@Consumer@@@ APPEARER and agree that the debt referred to above is a consumer transaction as defined by LSA-R.S. 13:4108.2 and that the present value (the reasonably equivalent value) of the property described above is . This transfer and conveyance of said property by the said APPEARER is made and accepted in partial satisfaction of the indebtedness recited above, and only to the extent of , APPEARER and agreeing that APPEARER and each of them shall remain solidarily liable to in the amount of , being the difference between the total indebtedness recited above and . APPEARER (a) acknowledges that APPEARER and each of them has a right to have the property transferred herein appraised and have the value of the property (and the credit

allowed against the debt) fixed at three-fourths of the appraised value; (b) gives up the right to judicial appraisal and sale of the property and to any further judicial proceedings concerning judicial sale of the property; (c) agrees that may obtain judgment for the remaining debt due, if that debt is not paid; and (d) agrees to sign all necessary documents in order to confirm title in .

The said thereupon delivered to the Notary before whom it appeared, the promissory note referred to above, which said Notary then paraphed for identification with this transaction and returned to , and , as the last holder of the said note, does hereby authorize and direct the Recorder of Mortgages of the Parish of , State of Louisiana, to place a notation on the mortgage recorded at , showing that the property referred to above has been released from the effects of the mortgage.

@@@Tax Receipts@@@ Tax receipts and/or certificates are annexed hereto showing payment of all state, parish, municipal and levee district taxes and past due charges for local improvement assessments assessed against the property.

@@@Conveyance Cert.@@@ By reference to the certificate of the Register of Conveyances for the Parish of Orleans it does not appear that said property has been alienated by the vendor. The parties are aware that the certificate attached hereto is open, being not yet dated and signed, and relieve and release the undersigned notaries from all responsibility and liability in connection therewith.

THUS SIGNED ON at , Louisiana, in the presence of the undersigned Notary Public, qualified in said State and Parish, and the undersigned competent witnesses, who have signed with the parties after due reading of the whole.

WITNESSES:

, NOTARY PUBLIC

THUS SIGNED ON at , Louisiana, in the presence of the undersigned Notary Public, qualified in said State and Parish, and the undersigned competent witnesses, who have signed with the parties after due reading of the whole.

WITNESSES:

, NOTARY PUBLIC