6.2 Ordinary process

If the note is lost, the creditor lacks authentic evidence, or the mortgage has been rescinded, the foreclosure can only be sought in an ordinary proceeding.1  The creditor also has the right to convert an executory proceeding to an ordinary proceeding. In an ordinary proceeding, a debtor may assert defenses, offsets, and reconventional demands.

In a foreclosure by ordinary process, the original promissory note does not have to be introduced into evidence if the requirements of the Lost Note Statute are met. This statute requires that the loss of the note be advertised in a public newspaper and proper means taken to recover possession of the instrument.2

• 1La. C.C.P. art. 2644.
• 2La. R.S. 13:3741; see U.S. Bank Nat’l Ass’n v. Custer, 09-802 (La. App. 5 Cir. 2/9/10), 33 So. 3d 303; Norwest Bank v. Walker, 2005-1068, p. 4 (La. App. 4 Cir. 5/24/06), 933 So. 2d 222, 225.