Assignment of Deed of Trust by 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.
Idaho Law
Execution of Assignment or Satisfaction: Must
be signed by the mortgagee.
Assignment: An assignment of a mortgage
may be recorded in like manner as a mortgage and such record operates as
notice to all persons subsequently deriving title to the mortgage from
the assignor. Recording is always recommended to avoid potential
complications.
Demand to Satisfy: Upon full payoff of
the mortgage, and upon the demand of the mortgagor, the mortgagee must
execute, acknowledge, and deliver to him a certificate of the discharge
of the mortgage so as to entitle it to be recorded, or mortgagee must enter
satisfaction of record.
Recording Satisfaction: A certificate of
the discharge of a real estate mortgage must be recorded, and a reference
made in the record book to the book and page where the mortgage is recorded
and in the minute of the discharge made upon the record of the mortgage
to the book and page where the discharge is recorded.
Marginal Satisfaction: Allowed (see section
45-912, below). Or by certificate of discharge (see section 45-913, below).
Penalty: Mortgagee who fails (after demand
of mortgagor) to present certificate of discharge to mortgagor, or satisfy
the mortgage of record, is liable to mortgagor for all actual damages plus
a penalty of $100. (No time limit is provided in section 45-915.)
Acknowledgment: An assignment or satisfaction
must contain a proper Idaho acknowledgment, or other acknowledgment approved
by Statute.
Idaho Statutes
45-909. RECORDING ASSIGNMENT OF MORTGAGE. An assignment
of a mortgage may be recorded in like manner as a mortgage and such record
operates as notice to all persons subsequently deriving title to the mortgage
from the assignor.
45-912. MARGINAL DISCHARGE OF MORTGAGE. A recorded
mortgage may be discharged by an entry in the margin of the record
thereof, signed by the mortgagee, or his personal representative or assignee,
acknowledging the satisfaction of the mortgage in the presence of the recorder,
who must certify the acknowledgement in form substantially as follows:
"Signed and acknowledged before me this .... day of .... in the year of
..... "A.B., Recorder."
45-913. DISCHARGE OF MORTGAGE ON CERTIFICATE. A recorded
mortgage if not discharged as provided in the preceding section, must be
discharged upon the record by the officer having custody thereof, on the
presentation to him of a certificate signed by the mortgagee, his personal
representative or assigns, acknowledged or proved and certified as prescribed
by the chapter on recording transfers, stating that the mortgage has been
paid, satisfied or discharged: provided, that whenever a bank or the
person appointed to liquidate the affairs of a bank as provided in section
26-908, has failed or neglected to issue a certificate showing the release,
discharge or satisfaction of a real mortgage, the director of the department
of finance, or his successor in office, may, upon the request of the owner,
or any subsequent owner, or party in interest, issue to such party his
certificate showing such mortgage to have been paid, discharged or satisfied
even though the affairs of said bank have been completely liquidated.
45-914. RECORD OF DISCHARGE. A certificate of the discharge
of a real estate mortgage must be recorded, and a reference made in the
record book to the book and page where the mortgage is recorded and in
the minute of the discharge made upon the record of the mortgage to the
book and page where the discharge is recorded.
45-915. MORTGAGE -- SATISFACTION -- FAILURE TO RELEASE
OF RECORD -- PENALTY. When any mortgage, affecting the title to real
property, has been satisfied, the holder thereof or his assignee must immediately,
on the demand of the mortgagor, purchaser, or the successor in interest
of either, execute, acknowledge, and deliver to him a certificate
of the discharge thereof so as to entitle it to be recorded, or
he must enter satisfaction or cause satisfaction of such mortgage or
affecting the title to real property, to be entered of record; and any
holder, or assignee of such holder, who refuses to execute, acknowledge,
and deliver to the mortgagor, purchaser, or the successor in interest of
either, the certificate of discharge, or to enter satisfaction, or cause
satisfaction of the mortgage to be entered, as provided in this chapter,
is liable to the mortgagor, purchaser, or his grantee or heirs, for
all damages which he or they may sustain by reason of such refusal, and
shall also forfeit to him or them the sum of $100.
