SUBPART F. PROCEDURE FOR ENFORCEMENT;

BURDEN OF PROOF

§4841. Enforcement of claims and privileges; concursus

A. After the period provided by R.S. 9:4822 for the filing of statements of claims or privileges has expired, the owner or any other interested party may convoke a concursus and shall cite all persons who have preserved their claims against the owner or their privileges on the immovable, and shall cite the owner, the contractor and the surety if they are not otherwise parties to establish the validity and rank of their claims and privileges.

B. The owner who convokes or is made a party to the concursus may deposit into the registry of the court the amounts owed by him to the contractor.

C. The owner may by rule order the other parties to the action to show cause why a judgment should not be entered discharging and cancelling their claims and privileges or discharging the owner from further responsibility to them. The rule shall be tried and appealed separately from the main cause of action and shall be limited to a consideration of the following matters:

(1) Whether the proper amounts have been deposited by the owner into the registry of the court.

(2) Whether the asserted claims or privileges have been properly preserved.

(3) Whether a notice of the contract and a bond for the work were properly and timely filed as required by R.S. 9:4811 and R.S. 9:4812.

(4) Whether the bond complies with the requirements of this Part.

D. If the court determines that the owner has properly deposited all sums owed by him to the contractor; that the owner has complied with this Part by properly and timely filing notice of a contract and bond as required by R.S. 9:4811 and R.S. 9:4812; that the bond complies with the requirements of this Part, or if it finds that any of the claims or privileges have not been preserved, it shall render a judgment on the rule directing the claims or privileges to be cancelled by the recorder and declaring the owner discharged from further liability for such claims or limiting the claims and privileges to the amounts as may be owed by the owner or otherwise granting such relief to the owner as may be proper.

E. The surety who convokes a concursus proceeding shall deposit into the registry of the court an amount equal to the lesser of:

(1) The full amount of the bond; or

(2) One hundred and twenty-five percent of the total amount claimed by persons who have filed a timely statement of claim or privilege for work arising out of the contract for which the bond is given.

After answer by or judgment of default against all claimants, the surety, upon motion and order may withdraw from the registry of the court any sums so deposited to the extent they exceed one hundred twenty-five percent of the aggregate amount of the claims then asserted against the contractor and surety by such claimants.

F. The attorney for the owner, who convokes a concursus under this Section, or the attorney for a claimant or privilege holder who convokes the concursus where more than ninety days have elapsed from the expiration of the time given by R.S. 9:4822 for claimants or privilege holders to file statements of their claim and such a concursus has not been convoked, shall be entitled to recover from the contractor and his surety a reasonable fee for his services in convoking the concursus. The fees awarded may be paid out of the funds deposited into the registry of the court but only after satisfaction of all valid claims and privileges.

G. The costs of the concursus taxable to the person who convokes it shall be paid in preference to other claims asserted.

Acts 1981, No. 724, §1, eff. Jan. 1, 1982.