Art. 5155.Pleading Discussion

Discussion does not work by announcing it alone. Article 5155 sets the procedural mechanics for each kind of party entitled to plead it. A third possessor pleads discussion in an injunction suit brought to restrain enforcement of a legal or judicial mortgage against their property. A surety or a transferee in a revocatory action, by contrast, may plead discussion only through the dilatory exception, a preliminary objection raised before the case reaches its merits.

Whichever route applies, the secondary obligor pleading discussion carries two concrete burdens. First, the pleader must point out, with a description sufficient to identify it, property in Louisiana belonging to the primary obligor, or otherwise subject to discussion, that is not already tied up in litigation, is not exempt from seizure, carries no mortgages or privileges of its own, and is worth more than the total amount of the judgment or mortgage at stake. A vague gesture toward "other assets" will not do; the property has to be identifiable and demonstrably sufficient.

Second, the pleader must deposit into the registry of the court, for the creditor's benefit, an amount sufficient to cover the cost of executing the judgment or enforcing the mortgage against that discussed property. This deposit requirement keeps discussion from becoming a costless delay tactic: the party invoking it has to put up the resources needed to pursue the alternative property, not only point at it and walk away.