Assignment of Security Deed from Individual Mortgage - Holder
Assignments Generally: Lenders,
or holders of mortgages or deeds of trust, often assign mortgages or deeds
of trust to other lenders, or third parties. When this is done the assignee
(person who received the assignment) steps into the place of the original
lender or assignor. To effectuate an assignment, the general rules is that
the assignment must be in proper written format and recorded to provide
notice of the assignment.
Satisfactions Generally: Once a mortgage
or deed of trust is paid, the holder of the mortgage is required to satisfy
the mortgage or deed of trust of record to show that the mortgage or deed
of trust is no longer a lien on the property. The general rule is that
the satisfaction must be in proper written format and recorded to provide
notice of the satisfaction. If the lender fails to record a satisfaction
within set time limits, the lender may be responsible for damages set by
statute for failure to timely cancel the lien. Depending on your state,
a satisfaction may be called a Satisfaction, Cancellation, or Reconveyance.
Some states still recognize marginal satisfaction but this is slowly being
phased out. A marginal satisfaction is where the holder of the mortgage
physically goes to the recording office and enters a satisfaction on the
face of the the recorded mortgage, which is attested by the clerk.
Georgia Law
Execution of Assignment or Satisfaction: Must
be signed by the mortgagee.
Assignment: An assignment must be in writing
and recorded.
Demand to Satisfy: Demand on behalf of
the borrower is not required. Lender has 60 days to record satisfaction
following payoff.
Recording Satisfaction: Whenever the indebtedness
secured by any instrument is paid in full, the grantee or holder of the
instrument, within 60 days of the date of the full payment, shall cause
to be furnished to the clerk of the superior court of the county or counties
in which the instrument is recorded a legally sufficient satisfaction or
cancellation to authorize and direct the clerk or clerks to cancel the
instrument of record.
Marginal Satisfaction: Not allowed. Satisfaction
must be by separate instrument.
Penalty: Upon the failure of the grantee
or holder to transmit properly a legally sufficient satisfaction or cancellation
as provided in this Code section, the grantee or holder shall, upon written
demand, be liable to the grantor for the sum of $500.00 as liquidated damages
and, in addition thereto, for such additional sums for any loss caused
to the grantor plus reasonable attorney's fees.
Acknowledgment: An assignment or satisfaction
must contain a proper Georgia acknowledgment, or other acknowledgment approved
by Statute.
Georgia Statutes
44-2-6. Recording bond for title, contracts, transfers, and assignments;
priority as to subsequent deeds taken without notice from same vendor.
Every bond for title, bond to reconvey realty, contract to sell
or convey realty or any interest therein, and any and all transfers or
assignments
of realty shall be filed and recorded in the office of the clerk of the
superior court of the county where the land referred to in the instrument
is located. The filing and recording shall, from the date of filing,
be notice of the interest and equity of the holder of the instrument in
the property described therein. The filing and recording may be made at
any time; but such bond for title, bond to reconvey realty, contract to
sell or convey realty or any interest therein, and any transfer or assignment
of realty shall lose its priority over deeds, loan deeds, mortgages, bonds
for titles, bonds to reconvey realty, contracts to sell or convey realty
or any interest therein and any transfer or assignment of realty from the
same vendor, obligor, transferor, or assignor which is executed subsequently
but filed for record first and is taken without notice of the former instrument.
44-14-3.
(a) As used in this Code section, the term:
(1) "Account" means the loan, note, or other
such agreement executed by the parties.
(2) "Finance charge" means interest and other
charges agreed to by the parties.
(3) "Grantee" means heirs, devisees, executors,
administrators, successors, transferees or assigns, and any servicing agent
or any person or entity to whom indebtedness is paid on behalf of or by
any grantor.
(4) "Grantor" means heirs, devisees, executors,
administrators, successors, transferees, or assigns.
(5) "Instrument" means a deed to secure debt,
a security instrument, a purchase money mortgage, a financing statement,
a personalty mortgage, a loan contract, or other instrument executed in
connection with any loan.
(6) "Revolving loan account" means an arrangement
between a lender and a debtor for the creation of debt pursuant to an agreement
secured by an instrument and under which:
(A) The lender may permit the debtor
to create debt from time to time;
(B) The unpaid balances of principal
of such debt and the loan finance and other appropriate charges are debited
to an account;
(C) A loan finance charge is computed
on the outstanding balances of the debtor's account from time to time;
(D) The debtor agrees to repay the
debt and accrued finance charges in accordance with the written agreement
with the lender; and
(E) The limitation on the maximum
amount which the debtor is entitled to become indebted under said arrangement
between the lender and debtor is stated on the face of the instrument,
and said amount shall be deemed to be notice of the maximum amount secured
by the instrument.
(b)(1) Whenever the indebtedness secured by
any instrument is paid in full, the grantee or holder of the instrument,
within 60 days of the date of the full payment, shall cause to be furnished
to the clerk of the superior court of the county or counties in which the
instrument is recorded a legally sufficient satisfaction or cancellation
to authorize and direct the clerk or clerks to cancel the instrument of
record. The grantee or holder shall further direct the clerk of the court
to transmit to the grantor the original cancellation or satisfaction document
at the grantor's last known address as shown on the records of the grantee
or holder. In the case of a revolving loan account, the debt shall be considered
to be "paid in full" only when the entire indebtedness including accrued
finance charges has been paid and the lender or debtor has notified the
other party to the agreement in writing that he wishes to terminate the
agreement pursuant to its terms.
(2) Notwithstanding paragraph (1) of this subsection,
if an attorney at law remits the pay-off balance of an instrument to a
grantee or holder on behalf of a grantor, the grantee or holder may direct
the clerk of the court to transmit to such attorney the original cancellation
or satisfaction document.
(3) A grantee or holder shall be authorized to
add to the pay-off amount the costs of recording a cancellation or satisfaction
of an instrument.
(c) Upon the failure of the grantee or holder to transmit
properly a legally sufficient satisfaction or cancellation as provided
in this Code section, the grantee or holder shall, upon written demand,
be liable to the grantor for the sum of $500.00 as liquidated damages and,
in addition thereto, for such additional sums for any loss caused to the
grantor plus reasonable attorney's fees. The grantee or holder shall
not be liable to the grantor if he or she demonstrates reasonable inability
to comply with subsection (b) of this Code section; and the grantee or
holder shall not be liable to the grantor unless and until a written demand
for the liquidated damages is made. No other provision of this Code
section shall be construed so as to affect the obligation of the grantee
or holder to pay the liquidated damages provided for in this subsection.
(c.1) In the event that a grantee or holder of record has
failed to transmit properly a legally sufficient satisfaction or cancellation
to authorize and direct the clerk or clerks to cancel the instrument of
record within 60 days after a written notice mailed to such grantee or
holder of record by registered or certified mail or statutory overnight
delivery, return receipt requested, the clerk or clerks are authorized
and directed to cancel the instrument upon recording an affidavit by an
attorney who has caused the secured indebtedness to be paid in full or
by an officer of a regulated or chartered financial institution whose deposits
are federally insured if that financial institution has paid the secured
indebtedness in full. The notice to be mailed to the grantee or holder
of record shall identify the indebtedness and include a recital or explanation
of this subsection. The affidavit shall include a recital of actions taken
to comply with this subsection. Such affidavit shall include as attachments
the following items:
(1) A written verification which was given at
the time of payment by the grantee or holder of record of the amount necessary
to pay off such loan; and
(2)
(A) Copies of the front and back of a canceled
check to the grantee or holder of record paying off such loan.
(B) Confirmation of a wire transfer to the grantee
or holder of record paying off such loan.
(C) A bank receipt showing payment to the grantee
or holder of record of such loan.
Any person who files an affidavit in accordance with this
subsection which affidavit is fraudulent shall be guilty of a felony and
shall be punished by imprisonment for not less than one year nor more than
three years or by a fine of not less than $1,000.00 nor more than $5,000.00,
or both.
(d) In all cases, any servicing agent or any person or entity
to whom the indebtedness is paid on behalf of any grantee shall be responsible
for notifying the holder thereof upon payment in full and for securing
the satisfaction or cancellation as provided in this Code section; and,
upon failure to do so, the servicing agent or payee shall be subject to
the same liability as provided in this Code section.
44-14-4.
Any mortgagor who has paid off his mortgage may present the paid
mortgage to the clerk of the superior court of the county or counties in
which the mortgage instrument is recorded, together with the order of the
mortgagee or transferee directing that the mortgage be canceled. After
payment of the fee authorized by law, the clerk shall index and record,
in the same manner as the original mortgage instrument is recorded, the
canceled and satisfied mortgage instrument or such portion thereof as bears
the order of the mortgagee or transferee directing that the mortgage be
canceled, together with any order of the mortgagee or transferee directing
that the mortgage be canceled. The clerk shall show on the index of the
cancellation and on the cancellation document the deed book and page number
where the original mortgage instrument is recorded. The clerk shall record
across the face of the mortgage instrument the words "satisfied" and "canceled"
and the date of the entry and shall sign his name thereto officially. The
clerk shall also make a notation on the record of the mortgage to
indicate where the order of the cancellation is recorded.
