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House Study Bill 691

Bill Text

PAG LIN
  1  1    Section 1.  NEW SECTION.  655.6  MORTGAGE RELEASE
  1  2 CERTIFICATE.
  1  3    1.  For purposes of this section:
  1  4    a.  "Mortgage" means a mortgage or mortgage lien on an
  1  5 interest in real property in this state given to secure a loan
  1  6 in the original principal amount of five hundred thousand
  1  7 dollars or less.
  1  8    b.  "Mortgage servicer" means the last person to whom a
  1  9 mortgagor or the mortgagor's successor in interest has been
  1 10 instructed by a mortgagee to send payments on a loan secured
  1 11 by a mortgage.  A person transmitting a payoff statement is
  1 12 the mortgage servicer for the mortgage described in the
  1 13 payment statement.
  1 14    c.  "Mortgagee" means either of the following:
  1 15    (1)  The grantee of a mortgage.
  1 16    (2)  If a mortgage has been assigned of record, the last
  1 17 person to whom the mortgage has been assigned of record.
  1 18    d.  "Mortgagor" means the grantor of a mortgage.
  1 19    e.  "Payoff statement" means a statement of the amount of
  1 20 all of the following:
  1 21    (1)  The unpaid balance of a loan secured by a mortgage,
  1 22 including principal, interest, and any other charges properly
  1 23 due under or secured by the mortgage.
  1 24    (2)  Interest on a per-day basis for the unpaid balance.
  1 25    f.  "Record" means to record with the county recorder.
  1 26    g.  "Real estate lender or closer" means a corporation or
  1 27 other business entity licensed to regularly lend money to be
  1 28 secured by mortgages on real property in this state, a
  1 29 licensed real estate broker, or a licensed attorney.
  1 30    2.  An officer or duly appointed agent of a real estate
  1 31 lender or closer may, on behalf of a mortgagor or a person who
  1 32 acquired from the mortgagor title to all or a part of the
  1 33 property described in a mortgage, execute a certificate of
  1 34 release that complies with the requirements of this section
  1 35 and record the certificate of release in the real property
  2  1 records of each county in which the mortgage is recorded if
  2  2 all of the following apply:
  2  3    a.  A satisfaction or release of the mortgage has not been
  2  4 executed and recorded within thirty days after the date
  2  5 payment in full of the loan secured by the mortgage was sent
  2  6 in accordance with a payoff statement furnished by the
  2  7 mortgagee or the mortgage servicer.
  2  8    b.  The real estate lender or closer, its officer, or agent
  2  9 has sent to the last known address of the mortgagee or the
  2 10 mortgage servicer, at least fifteen days prior to executing
  2 11 the certificate of release, written notice of its intention to
  2 12 execute and record a certificate of release in accordance with
  2 13 this section after the expiration of the thirty-day period.
  2 14    c.  The original principal amount of the mortgage was five
  2 15 hundred thousand dollars or less.
  2 16    3.  A certificate of release executed under this section
  2 17 must contain substantially all of the following:
  2 18    a.  The name of the mortgagor, the name of the original
  2 19 mortgagee, and, if applicable, the mortgage servicer, the date
  2 20 of the mortgage, the date of recording, and volume and page or
  2 21 document number in the real property records where the
  2 22 mortgage is recorded, together with similar information for
  2 23 the last recorded assignment of the mortgage.
  2 24    b.  A statement that the mortgage was in the original
  2 25 principal amount of five hundred thousand dollars or less.
  2 26    c.  A statement that the person executing the certificate
  2 27 of release is an officer or a duly appointed agent of a real
  2 28 estate lender or closer.
  2 29    d.  A statement that the certificate of release is made on
  2 30 behalf of the mortgagor or a person who acquired title from
  2 31 the mortgagor to all or a part of the property described in
  2 32 the mortgage.
  2 33    e.  A statement that the mortgagee or mortgage servicer
  2 34 provided a payoff statement which was used to make payment in
  2 35 full of the unpaid balance of the loan secured by the
  3  1 mortgage.
  3  2    f.  A statement that payment in full of the unpaid balance
  3  3 of the loan secured by the mortgage was made in accordance
  3  4 with the written or verbal payoff statement, and received by
  3  5 the mortgagee or mortgage servicer, as evidenced by one or
  3  6 more of the following in the records of the real estate lender
  3  7 or closer or its agent:
  3  8    (1)  A bank check, certified check, escrow account check,
  3  9 real estate broker trust account check, or attorney trust
  3 10 account check that has been negotiated by the mortgagee or
  3 11 mortgage servicer.
  3 12    (2)  Other documentary evidence of payment to the mortgagee
  3 13 or mortgage servicer.
  3 14    g.  A statement that more than thirty days have elapsed
  3 15 since the date payment in full was sent.
  3 16    h.  A statement that after the expiration of the thirty-day
  3 17 period referred to in subsection 2, the real estate lender or
  3 18 closer, its officer, or agent sent to the last known address
  3 19 of the mortgagee or mortgage servicer, at least fifteen days
  3 20 prior to executing the certificate of release, notice in
  3 21 writing of its intention to execute and record a certificate
  3 22 of release in accordance with this section, with an unexecuted
  3 23 copy of the proposed certificate of release attached to the
  3 24 written notice.
  3 25    i.  A statement that the real estate lender or closer, its
  3 26 officer, or agent has not received notification in writing of
  3 27 any reason why the certificate of release should not be
  3 28 executed and recorded after the expiration of the fifteen-day
  3 29 notice period referred to in subsection 2.
  3 30    4.  a.  A certificate of release authorized by subsection 2
  3 31 must be executed and acknowledged as required by law in the
  3 32 case of a deed and may be executed by a duly appointed agent
  3 33 of a real estate lender or closer, but such delegation to an
  3 34 agent by a real estate lender or closer shall not relieve the
  3 35 real estate lender or closer of any liability for damages
  4  1 caused by its agent for the wrongful or erroneous execution of
  4  2 a certificate of release.
  4  3    b.  The appointment of agent must be executed, acknowledged
  4  4 as required by law in the case of a deed, recorded in the
  4  5 office of the county recorder, and must state all of the
  4  6 following:
  4  7    (1)  The real estate lender or closer as the grantor.
  4  8    (2)  The identity of the person, partnership, or
  4  9 corporation authorized to act as agent to execute and record
  4 10 certificates of release provided for in this section on behalf
  4 11 of the real estate lender or closer.
  4 12    (3)  That the agent has the full authority to execute and
  4 13 record certificates of release provided for in this section on
  4 14 behalf of the real estate lender or closer.
  4 15    (4)  The term of appointment of the agent.
  4 16    (5)  That the agent has consented to and accepts the terms
  4 17 of the appointment.
  4 18    c.  A single appointment of agent may be recorded by a real
  4 19 estate lender or closer in each county recorder's office.  A
  4 20 separate appointment of agent shall not be necessary for each
  4 21 certificate of release.  The appointment of agent may be
  4 22 rerecorded when necessary to establish authority of the agent,
  4 23 but such authority shall continue until a revocation of
  4 24 appointment is recorded in the office of the county recorder
  4 25 where the appointment of agent was recorded.
  4 26    5.  For purposes of releasing a mortgage, a certificate of
  4 27 release containing the information and statements provided for
  4 28 in subsection 3 and executed as provided in this section is
  4 29 prima facie evidence of the facts contained in it, is entitled
  4 30 to be recorded with the county recorder, and operates as a
  4 31 release of the mortgage described in the certificate of
  4 32 release.  The county recorder shall rely upon the certificate
  4 33 of release to release the mortgage.  Recording of a wrongful
  4 34 or erroneous certificate of release by a real estate lender or
  4 35 closer or its agent shall not relieve the mortgagor, or the
  5  1 mortgagor's successors or assigns, from any personal liability
  5  2 on the loan or other obligations secured by the mortgage.  In
  5  3 addition to any other remedy provided by law, a real estate
  5  4 lender or closer wrongfully or erroneously recording a
  5  5 certificate of release under this section shall be liable to
  5  6 the mortgagee for actual damage sustained due to the recording
  5  7 of the certificate of release.
  5  8    6.  If a mortgage is recorded in more than one county and a
  5  9 certificate of release is recorded in one of them, a certified
  5 10 copy of the certificate of release may be recorded in another
  5 11 county with the same effect as the original.  In all cases,
  5 12 the certificate of release shall be entered and indexed as
  5 13 satisfactions of mortgage are entered and indexed.  
  5 14                           EXPLANATION
  5 15    This bill allows a real estate lender or closer, on behalf
  5 16 of a mortgagor or a person who acquired title to property from
  5 17 a mortgagor, to execute a certificate of release of mortgage
  5 18 in those instances when a mortgage has not been satisfied or
  5 19 released within 30 days of payment in full of the loan
  5 20 securing the mortgage.  The real estate lender or closer is
  5 21 required to send a 15-day notice to the mortgagee of the
  5 22 intent to execute and record a certificate of release.  The
  5 23 bill applies to mortgages whose original principal amount was
  5 24 $500,000 or less.
  5 25    The bill defines "real estate lender or closer" as a
  5 26 business entity licensed to regularly lend money to be secured
  5 27 by mortgages on real property in this state, a licensed real
  5 28 estate broker, or a licensed attorney.  
  5 29 LSB 3914HC 77
  5 30 sc/sc/14
     

Text: HSB00690                          Text: HSB00692
Text: HSB00600 - HSB00699               Text: HSB Index
Bills and Amendments: General Index     Bill History: General Index

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