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.
New Hampshire Law
Execution of Assignment or Satisfaction:
Must be signed by the mortgagee.
Assignment:
It is recommended that an assignment be in writing and recorded in order to avoid complications.
Demand to Satisfy:
None required.
Recording Satisfaction:
When a mortgage upon real estate is satisfied, the mortgagee shall give the mortgagor a
discharge thereof. Said discharge shall be in the form of a written document
and shall be signed by the mortgagee. In addition, the mortgagee, within
60 days after said mortgage is satisfied and having reasonable charges
tendered to the mortgagee, shall cause the discharge of the mortgage to
be recorded in the registry of deeds where the land lies. The recording
fees associated with the discharge of mortgage may be charged to the mortgagor,
if the mortgagor received written disclosure that such fees would be so
charged. The mortgagee shall provide written confirmation of the discharge
within the 60-day period to the payor of the final payment in satisfaction
of the mortgage.
Penalty:
Any mortgagee who after the satisfaction of his mortgage refuses to give a sufficient discharge of such mortgage,
shall be "guilty of a violation."
Acknowledgment:
An assignment or satisfaction must contain a proper New Hampshire acknowledgment, or other acknowledgment
approved by Statute.
New Hampshire Statutes
CHAPTER 479 MORTGAGES OF REALTY
Performance of Conditions and Redemption
Section 479:7
479:7 Discharge; Record. -
I. When a mortgage upon real estate is satisfied, the mortgagee
shall give the mortgagor a discharge thereof. Said discharge shall be in
the form of a written document and shall be signed by the mortgagee, his
executor, administrator, successor, or assign whose signature shall be
witnessed or acknowledged...
II. The mortgagee, within 60 days after said mortgage is satisfied
and having reasonable charges tendered to the mortgagee, shall cause the
discharge of the mortgage to be recorded in the registry of deeds where
the land lies. The recording fees associated with the discharge of mortgage
may be charged to the mortgagor, if the mortgagor received written disclosure
that such fees would be so charged. The mortgagee shall provide written
confirmation of the discharge within the 60-day period to the payor of
the final payment in satisfaction of the mortgage.
Section 479:7-a
479:7-a Discharge by Affidavit.
I. Notwithstanding the provisions of RSA 479:10, if such mortgagee
fails to make such discharge of the mortgage within 60 days from receipt
of payment of the mortgage in accordance with the payoff statement furnished
to the mortgagor by the mortgagee, an attorney-at-law licensed to practice
in the state of New Hampshire may, on behalf of the mortgagor; the mortgagor's
executor, administrator, assignee, transferee, or other successor in title;
or the mortgagee of the mortgagor's transferee or other successor in title;
execute and cause to be recorded in the registry of deeds in which the
mortgage is recorded, an affidavit which states that:
(a) The affiant is an attorney-at-law in good standing and licensed
to practice in the state of New Hampshire.
(b) The affidavit is made on behalf of, and at the request of, the
mortgagor; the mortgagor's executor, administrator, assignee, transferee,
or other successor in title; or the mortgagee of the mortgagor's transferee
or other successor in title.
(d) The affiant has ascertained that the mortgagee has received
payment of the loan secured by the mortgage in accordance with the payoff
statement, as evidenced by a bank check, certified check or attorney's
clients' funds account check which has been negotiated by the mortgagee
and bears no indication of a stop payment order or return for insufficient
funds, or by other equivalent documentary evidence of such receipt of payment
by the mortgagee.
(f) The affiant has given the mortgagee at least 15 days' notice
in writing by certified mail, sent to the mortgagee's last known address,
of intention to execute and cause to be recorded an affidavit in accordance
with this section, together with a copy of the proposed affidavit; and
the mortgagee has not delivered a discharge in response to such notification
and the mortgagor has complied with any request made by the mortgagee for
additional payment at least 15 days prior to the date of the affidavit.
II. The affidavit shall include the names and addresses of both
the mortgagor and the mortgagee, the date of the mortgage, and the title
reference. Similar information shall be included with respect to any recorded
assignment of the mortgage.
III. 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 any bank check, certified
check, or attorney's clients' funds account check; and
IV. The affidavit, when recorded, shall constitute a discharge of
the mortgage and a release of the lien created by the mortgage on the mortgaged
premises.
V. Any person who causes an affidavit to be recorded in accordance
with this section, knowing the information and statements contained in
the affidavit to be false, shall be punished by a fine of not more than
$5,000.
VI. In this section, the term "payoff statement" means a written
statement of the amount of the unpaid balance on the mortgage including
principal, interest, and other charges properly assessed pursuant to the
loan documentation of such mortgage and a statement of the interest on
a per diem basis with respect to the unpaid principal balance on the mortgage.
For the purposes of this section, a regular periodic account statement
is not considered a payoff statement unless the mortgagee expressly states
thereon that the statement represents a final payoff statement and it also
contains a per diem rate or amount for calculating the final mortgage payoff
amount.
Section 479:8
479:8 Penalty.
Any mortgagee violating the provisions of RSA 479:7, or any mortgagee who after the satisfaction of his mortgage
refuses to give a sufficient discharge of such mortgage, shall be guilty of a violation.
