Partial Release of Property From Mortgage by Individual 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.
Maine Law
Execution of Assignment or Satisfaction: Must
be signed by the mortgagee.
Assignment: An assignment must be in writing
and recorded.
Demand to Satisfy: None required. Mortgagee
has 60 days from payoff of mortgage to record satisfaction or else suffer
liability.
Recording Satisfaction: A mortgage only
may be discharged by a written instrument acknowledging the satisfaction
thereof and signed and acknowledged by the mortgagee or by the mortgagee's
duly authorized officer or agent, personal representative or assignee.
Marginal Satisfaction: Not allowed. Satisfaction
must be by separate written instrument.
Penalty: If a satisfied mortgage is not
recorded as such by mortgagee within 60 days following satisfaction thereof,
mortgagee becomes liable to aggreived parties for damages equal to exemplary
damages of $200 per week after expiration of the 60 days, up to an aggregate
maximum of $5,000 for all aggrieved parties or the actual loss sustained
by the aggrieved party, whichever is greater, and attorney fees.
Acknowledgment: An assignment or satisfaction
must contain a proper Maine acknowledgment, or other acknowledgment approved
by statute.
Maine Statutes
§ 551. Entry on record; neglect to discharge
A mortgage only may be discharged by a written instrument acknowledging
the satisfaction thereof and signed and acknowledged by the mortgagee
or by the mortgagee's duly authorized officer or agent, personal representative
or assignee. The instrument must recite the name or identity of the
mortgagee and mortgagor, or their successors in interest and the record
location of the mortgage discharged. The instrument, when recorded,
has the same effect as a deed of release duly acknowledged and recorded.
Within 60 days after full performance of the conditions of the
mortgage, the mortgagee shall record a valid and complete release of mortgage
together with any instrument of assignment necessary to establish the mortgagee's
record ownership of the mortgage. As used in this paragraph, the term
"mortgagee" means both the owner of the mortgage at the time it is satisfied
and any servicer who receives the final payment satisfying the debt. If
a release is not transmitted to the registry of deeds within 60 days, the
owner and any such servicer are jointly and severally liable to an aggrieved
party for damages equal to exemplary damages of $200 per week after expiration
of the 60 days, up to an aggregate maximum of $5,000 for all aggrieved
parties or the actual loss sustained by the aggrieved party, whichever
is greater. If multiple aggrieved parties seek exemplary damages, the
court shall equitably allocate the maximum amount. The mortgagee is also
liable for court costs and reasonable attorney's fees in any successful
action to enforce the liability. The mortgagee may charge the mortgagor
for any recording fees incurred in recording the release of mortgage.
With respect to a mortgage securing an open-end line of credit,
the 60-day period to deliver a release commences after the mortgagor delivers
to the address designated for payments under the line of credit a written
request to terminate the line and the mortgage together with payment in
full of all amounts secured by the mortgage. The mortgagee may designate
in writing a different address for delivery of written notices under this
paragraph.
All discharges of recorded mortgages, attachments or liens of
any nature must be recorded by a written instrument, and except for
termination statements filed pursuant to Title 11, section 9-404, acknowledged
in same manner as other instruments presented for record and no such discharges
may be permitted by entry in the margin of the instrument to be discharged.
All discharges of recorded mortgages, attachments or liens of any
nature must be recorded by a written instrument and, except for termination
statements filed pursuant to Title 11, section 9-1513, acknowledged in
same manner as other instruments presented for record and no such discharges
may be permitted by entry in the margin of the instrument to be discharged.
§ 552. Validation
All marginal discharges of mortgages recorded prior to April 1,
1974, duly attested by the register of deeds as being recorded from discharge
in margin of original mortgage, are validated and have the same effect
as if made as provided in section 551.
§ 553-A. Discharge by attorney
1. Affidavit. A recorded mortgage on a residential owner-occupied
one-to-4-family dwelling may be discharged in the office of the registry
of deeds by an attorney-at-law licensed to practice in the State if the
mortgagee, after receipt of payment of the mortgage in accordance with
the payoff statement furnished to the mortgagor by the mortgagee, fails
to make that discharge or to execute and acknowledge a deed of release
of the mortgage. The attorney shall execute and record an affidavit in
the registry of deeds affirming that.
A. The affiant is an attorney-at-law in good standing and licensed
to practice in the State;
B. The affidavit is made at the request of the mortgagor or the
mortgagor's executor, administrator, successor, assignee or transferee
or the transferee's mortgagee;
C. The mortgagee has provided a payoff statement with respect to
the loan secured by the mortgage;
D. The mortgagee has received payment that has been proved by a
bank check, certified check or attorney client funds account check negotiated
by the mortgagee or by evidence of receipt of payment by the mortgagee;
E. More than 30 days have elapsed since the payment was received
by the mortgagee; and
F. The mortgagee has received written notification by certified
mail 15 days in advance, sent to the mortgagee's last known address,that
the affiant intends to execute and record an affidavit in accordance with
this section, enclosing a copy of the proposed affidavit; the mortgagee
has not delivered a discharge or deed of release in response to the notification;
and the mortgagor has complied with any request made by the mortgagee for
additional payment at least 15 days before the date of the affidavit.
2. Name; address; mortgagee; mortgagor. The affidavit must include
the names and addresses of the mortgagor and the mortgagee, the date of
the mortgage, the title reference and similar information with respect
to recorded assignment of the mortgage.
3. Copy. The affiant shall attach to the affidavit the following,
certifying that each copy is a true copy of the original document:
A. Photostatic copies of the documentary evidence that payment has
been received by the mortgagee, including the mortgagee's endorsement of
a bank check, certified check or attorney client funds account check; and
B. A photostatic copy of the payoff statement if that statement
is made in writing.
4. Effect. An affidavit recorded under this section has the same
effect as a recorded discharge.
5. Exception. A mortgage may not be discharged as provided by this
section if the holder of the mortgage at the time a discharge is sought
is a financial institution or credit union authorized to do business in
the State as defined in Title 9-B, section 131, subsection 12-A or 17-A.
