Asset One Louisiana v. Vulcan Minerals Engy

United States Court of Appeals
Fifth Circuit
F I L E D
April 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30700
Summary Calendar
ASSET ONE, LOUISIANA, INC.,
Plaintiff-Appellee,
versus
VULCAN MINERALS & ENERGY, INC.,
formerly known as Playa Minerals &
Energy, Inc.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-0751
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CONSOLIDATED WITH
No. 02-30800
Summary Calendar
ASSET ONE, LOUISIANA, INC.,
Plaintiff-Counter Defendant-Appellee,
versus
REGENT ENERGY CORP., formerly

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Nos. 02-30700, 02-30800
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* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
** La Rev. Stat. § 9:5555 provides:
§ 5555 Executory process in the case of notes or other obligations not paraphed for
identification with the mortgage
A. In accordance with Code of Civil Procedure Article 2636(8), there is no requirement
that a note or other written obligation secured by a mortgage be paraphed for
identification with the mortgage in order for the mortgagee to have the right to foreclose
known as Vulcan Minerals &
Energy, Inc., formerly known as
Playa Minerals & Energy, Inc.,
Defendant-Counter Claimant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-0466
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
At issue in these consolidated interlocutory appeals is whether the district courts erred in
finding that appellee had complied with the requirements of La. Rev. Stat. § 9:5555 so as to avail
itself of executory process and in denying the counter-complaint seeking preliminary injunction to
arrest executory process foreclosure proceeding.
As an initial matter, the district courts held correctly that appellee submitted the proper
materials necessary to avail itself of Louisiana’s executory process procedure. La. Civ. Code art.
3298 does not require that a note be paraphed for identification with the mortgage, if the
provisions of La. Rev. Stat. § 9:5555 are satisfied.** Here, the affidavit supplied by appellee is

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under the mortgage utilizing Louisiana executory process procedures. For purposes of
executory process, the existence, amount, terms, and maturity of the note or other written
obligation not evidenced by an instrument paraphed for identification with the act of
mortgage or privilege may be proved by written affidavit or verified petition.
B. The affidavit or verified petition may be based upon personal knowledge or upon
information and belief derived from records kept in the ordinary course of business of the
mortgagee, the creditor whose claim is secured by the privilege, or any other person. The
affidavit or verified petition need not particularize or specifically identify the records or
date upon which such knowledge, information or belief is based.
C. The affidavit shall be deemed to provide authentic evidence of the existence, amount,
terms, and maturity of the obligation for executory purposes.
sufficient to satisfy Section 5555, which the district courts correctly applied, and thus establishes
the debt in issue. Furthermore, there is no variance between the note in issue and the mortgage
and no break in the chain of evidence, as asserted by appellant, because there is no requirement
that all of the terms of the note be written in the note and that the note cannot incorporate terms
from a security agreement.
Accordingly, the judgments of the district courts are affirmed.

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