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Posted by  Navtex/TX on 6/28/17 5:12pm
First - my apologies for misspelling the latin phrase in my title. Have corrected it in this reply.
Secondly, I have come across a legal end-run around the "ne varietur" paraph requirement. Pursuant to Louisiana revised statute RS 9:5555, there is 1) no legal requirement that a note contain a "ne varietur" paraph, and more importantly to this discussion, 2) one may substitute an affidavit in lieu of the "ne varietur" paraph requirement. The notary must simply affirm the terms of the note as spelled out in the documents before them.
I know, The NNA document I referenced originally warns that a jurat or acknowledgment may not be a suitable substitute for a “ne varietur” clause, and indeed, if one is trying to convey the same intent, they truly are not a good substitute. However, if you read the Louisiana revised statutes RS 9:5555, it provides that an affidavit affirming 1) the terms of the note based on the papers before me, and 2) affirming that the stated parties signed the aforementioned note, to suffice in lieu of the “ne varietur” paraph. The exact language is as follows:
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Universal Citation: LA Rev Stat § 9:5555
§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 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 affidavit or verified petition.
B. The affidavit or verified petition may be based upon personal knowledge or upon information and belief derived from the 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 process purposes.
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Technically, you don't even need to affirm that any specific parties signed the note, but it's not a bad idea. Here is a sample affidavit I was provided by the title company that will apparently suffice as a substitute:
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NOTARY AFFIDAVIT
I, _____________________________ hereby state and depose as follows:
1. I am duly authorized to make this affidavit.
2. I hereby state that I witnessed ___________________ and _________________ sign the following described Note
as part of a refinance transaction with [lender name] as the lender.
3. Said Note was for the principal balance of $xxx,xxx.xx with interest calculated at a yearly rate of x.xxx% and
monthly payments in the amount of $x,xxx.xx beginning on August 1, 2017 and indicating a Maturity Date of
July 1, 2032.
4. This affidavit shall be deemed to provide authentic evidence of the existence, amount, terms, and maturity of the obligation for executory process purposes pursuant to Louisiana revised statutes RS 9:5555.
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Signature of Notary
(seal)
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Print or Type Name:
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