Title Matters – Vol. February 2013

As a service for LAILTA members and subscribers, you will receive an email each month with a short discussion on  matters of interest to the real estate attorney and title agent.  This will be a monthly service, except for the months in which seminars are scheduled.  LAILTA will email you recent cases of interest, notes on legislation and reminders of seldom thought of statutes and rules that affect our day to day work. 

This month’s excerpt is presented by:
Phillip H. Budreaux, LAILTA Board Member
Attorney At Law, Andrus, Boudreaux, Landry & Coussan, APLC
1245 Camellia Blvd, Suite 200, Lafayette, LA 70508
(225)766-6464 Phone (225)763-6358 Fax

Attached is the Louisiana Supreme Court case entitled First National Bank, USA vs. DDS Construction, LLC, 91 So. 3d 944 (La. 2012) concerns the use and interpretation of Louisiana Revised Statute 35:2.1 (the “Statute”).


Not every mistake can be corrected through the Notarial Act of Correction.  Only mistakes which truly result from clerical errors can be corrected pursuant to this Statute.  Correcting substantive errors in the drafting of a document may not be correctable by a Notarial Act of Correction pursuant to the Statute.  If there is any doubt as to whether or not an error is substantive or clerical, then the parties to the act should enter into the Act of Correction, rather than the Notary alone.  Additionally, in order to utilize the Notarial Act of Correction, the original act must be an authentic act, before a Notary Public and two witnesses, as was additionally noted in the above referenced case.  Having the Request for Cancellation done by Affidavit or by Act of Private Signature Duly Acknowledged, the Notarial Act of Correction perhaps could not have been used to revoke the cancellation of the Mortgage retroactively to the date of the original cancellation.

LRS 35 §2.1. Affidavit of corrections

A.(1) A clerical error in a notarial act affecting movable or immovable property or any other rights, corporeal or incorporeal, may be corrected by an act of correction executed by any of the following:

(a) The person who was the notary or one of the notaries before whom the act was passed.

(b) The notary who actually prepared the act containing the error.

(c) In the event the person defined in Subparagraphs (a) or (b) of this Paragraph is deceased, incapacitated, or whose whereabouts are unknown, then by a Louisiana notary who has possession of the records of that person, which records contain information to support the correction.

(2) The act of correction shall be executed before two witnesses and a notary public.

  1. The act of correction executed in compliance with this Section shall be given retroactive effect to the date of recordation of the original act. However, the act of correction shall not prejudice the rights acquired by any third person before the act of correction is recorded where the third person reasonably relied on the original act. The act of correction shall not alter the true agreement and intent of the parties.
  2. A certified copy of the act of correction executed in compliance with this Section shall be deemed to be authentic for purposes of executory process.
  3. This Section shall be in addition to other laws governing executory process.

Acts 1984, No. 245, §2; Acts 1987, No. 407, §1; Acts 1995, No. 216, §1; Acts 2012, No. 397, §1.