Partial Release of Property From Deed of Trust for Individual
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 rule
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.
Montana Law
Execution of Assignment or Satisfaction: Must
be signed by the mortgagee.
Assignment: An assignment of a real estate
mortgage may be recorded in like manner as a real estate mortgage and the
record thereof shall operate as due and legal notice to the mortgagor and
all persons subsequently deriving title to the mortgage from the assignor
as well as to all other persons, including subsequent purchasers, encumbrancers,
mortgagees, or other lienholders.
Demand to Satisfy: Upon full payoff, borrower
may request that lender record satisfation of the deed of trust, whereupon
the lender must do so within 30 days or face liability.
Recording Satisfaction: A mortgage shall
be discharged upon the record thereof by the county clerk in whose custody
it shall be whenever there shall be presented to him a certificate executed
by the mortgagee, and certified as in this code prescribed to entitle a
conveyance to be recorded, specifying that such mortgage has been paid
or otherwise satisfied or discharged.
Penalty: If mortgagee fails to record satisfaction
within 30 days of request to do so from mortgagor, mortgagee is liable
for damages of $100, plus all actual damages.
Acknowledgment: An assignment or satisfaction
must contain a proper Montana acknowledgment, or other acknowledgment approved
by Statute.
Montana Statutes
71-1-207. Recording of mortgages and assignments.
(1) Mortgages of real property may be acknowledged or proved, certified, and
recorded in like manner and with like effect as grants thereof.
(2) An assignment of a real estate mortgage may be recorded in like manner
as a real estate mortgage and the record thereof shall operate as due and
legal notice to the mortgagor and all persons subsequently deriving title
to the mortgage from the assignor as well as to all other persons, including
subsequent purchasers, encumbrancers, mortgagees, or other lienholders.
Any such assignment shall contain the assignee's post-office address at
his place of residence and shall not be entitled to be recorded or filed
unless it contains such post-office address.
71-1-211. Satisfaction of mortgage -- record thereof.
(1) A mortgage shall be discharged upon the record thereof by the county
clerk in whose custody it shall be whenever there shall be presented to
him a certificate executed by the mortgagee, his personal representative
or assignee, acknowledged or proved and certified as in this code prescribed
to entitle a conveyance to be recorded, specifying that such mortgage has
been paid or otherwise satisfied or discharged.
(2) Every such certificate and the proof and acknowledgment thereof shall be recorded
at full length, and a reference shall be made to the book and page containing
such record in the mortgagor and mortgagee indexes as to the discharge
of such mortgage.
71-1-212. Penalties for failure to give certificate of
discharge or release after full performance. Any mortgagee or his personal
representative or assignee, as the case may be, after the full performance
of the conditions of the mortgage, whether before or after a breach thereof,
who shall for the space of 30 days after being requested
refuse or neglect to execute, acknowledge, and deliver to the mortgagor
a certificate of discharge or release thereof shall be liable to the mortgagor,
his heirs, or assigns in the sum of $100 and also for all actual
damages occasioned by such neglect or refusal.
71-1-213. Discharge or release by other than mortgagee.
(1) If the discharge or release is made by the personal representative of the
mortgagee, it must be accompanied by a certified copy of his authority
unless such authority is already of record in the office of the county
clerk and recorder where the mortgage is recorded.
(2) If the discharge or release is made by an assignee, it must be accompanied by the assignment
of the mortgage unless the assignment is already of record in the office
of the county clerk and recorder where the mortgage is recorded.
(3) If the discharge or release is executed by an attorney in fact, the discharge
or release must have attached to it the power of attorney under which it
is made unless the power of attorney is already of record in the office
of the county clerk and recorder where the mortgage is recorded.
(4) If the discharge or release is executed by the heir or heirs of the mortgagee,
the discharge or release must be accompanied by a certified copy of an
order or decree of a court of competent jurisdiction showing such authority
unless the order or decree is already of record in the office of the county
clerk and recorder where the mortgage is recorded.
(5) Foreign administrators
and executors may discharge or release mortgages of record in Montana if
the discharge or release of mortgages is accompanied by an authenticated
copy of their letters of administration or letters testamentary, with the
certificate of the clerk of the court in which the appointment was made
that the same have not been revoked and are in full force, which certificate
and certified copy of letters shall be recorded with the discharge or release
of the mortgage. When presented and recorded, the discharge or release
has the same effect as if the mortgage was discharged or released by the
mortgagee.
