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 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.
South Carolina Law
Assignment:
It is recommended that an assignment be in writing and recorded.
Demand to Satisfy:
Mortgagor must demand satisfaction in writting, by certified mail or other form of delivery with proof of
delivery. Mortgagee has 3 months to enter satisfaction of record.
Recording Satisfaction:
In the presence of the officer or his deputy write across the face of the record of the instrument the
words, "The debt secured is paid in full and the lien of this instrument
is satisfied", or words of like meaning and date the notation and sign
it, the signature to be witnessed by the officer or his deputy. Other methods
are possible. See code section 29-3-330, below.
Marginal Satisfaction:
Satisfaction may be indicated in the margin of the mortgage document. See code section 29-3-330, below.
Penalty:
If Mortgagee fails to record within the 3 month period following the written request, penalty is a sum of money not
exceeding one-half of the amount of the debt secured by the mortgage, or
twenty-five thousand dollars, whichever is less, plus actual damages, costs,
and attorney's fees in the discretion of the court, to be recovered by
action in any court of competent jurisdiction within the State. And on
judgment being rendered for the plaintiff in any such action, the presiding
judge shall order satisfaction to be entered.
Acknowledgment:
An assignment or satisfaction must contain a proper South Carolina acknowledgment, or other acknowledgment
approved by Statute.
South Carolina Statutes
SECTION 29-3-310. Satisfaction shall be entered upon full payment.
Any holder of record of a mortgage who has received full payment
or satisfaction or to whom a legal tender has been made of his
debts, damages, costs, and charges secured by mortgage of real estate shall,
at the request by certified mail or other form of delivery with a proof
of delivery of the mortgagor or of his legal representative or any other
person being a creditor of the debtor or a purchaser under him
or having an interest in any estate bound by the mortgage and on tender
of the fees of office for entering satisfaction, within three
months after the certified mail, or other form of delivery, with a proof
of delivery, request is made, enter satisfaction in the proper
office on the mortgage which shall forever thereafter discharge and satisfy
the mortgage.
SECTION 29-3-320. Liability for failure to enter satisfaction.
Any holder of record of a mortgage having received such payment,
satisfaction, or tender as aforesaid who shall not, by himself or
his attorney, within three months after such certified mail, or other form
of delivery, with a proof of delivery, request and tender of fees
of office, repair to the proper office and enter satisfaction as aforesaid
shall forfeit and pay to the person aggrieved a sum of money
not exceeding one-half of the amount of the debt secured by the mortgage,
or twenty-five thousand dollars, whichever is less, plus actual
damages, costs, and attorney's fees in the discretion of the court,
to be recovered by action in any court of competent jurisdiction
within the State. And on judgment being rendered for the plaintiff in any
such action, the presiding judge shall order satisfaction to be
entered on the judgment or mortgage aforesaid by the clerk, register, or
other proper officer whose duty it shall be, on receiving such order,
to record it and to enter satisfaction accordingly.
Notwithstanding any limitations under Sections 37-2-202 and 37-3-202,
the holder of record of the mortgage may charge a reasonable fee
at the time of the satisfaction not to exceed twenty-five dollars to cover
the cost of processing and recording the satisfaction or cancellation.
If the mortgagor or his legal representative instructs the holder of record
of the mortgage that the mortgagor will be responsible for filing
the satisfaction, the holder of the mortgage shall mail or deliver the
satisfied mortgage to the mortgagor or his legal representative
with no satisfaction fee charged.
SECTION 29-3-330. Methods of entering satisfaction.
Any mortgage, deed of trust, or other written instrument securing
the payment of money and being a lien upon real property may be cancelled,
discharged, and released by any of the following methods:
(a) The mortgagee or other person being the owner or holder of the
mortgage, as appears by the record of the instrument or any assignment
of the instrument, or the legal representative or attorney in fact, under
a written instrument duly recorded, of the holder of the instrument, may
exhibit the instrument to the officer or his deputy who has charge of the
recording of the instrument and then in the presence of the officer
or his deputy write across the face of the record of the instrument the
words, "The debt secured is paid in full and the lien of this instrument
is satisfied", or words of like meaning and date the notation and sign
it, the signature to be witnessed by the officer or his deputy;
(b) The satisfaction of the mortgage, deed of trust, or other instrument
securing the payment of money and being a lien upon real property may be
written upon or attached to the original instrument and executed by any
person above named in the presence of one or more witnesses, in which event
the satisfaction must be recorded across the face of the record of the
original instrument; or
(c) In case the original mortgage, deed of trust, or other instrument
securing the payment of money and being a lien upon real property has been
lost or destroyed it may be satisfied, either by the owner and holder of
the instrument in person or his personal representative or duly authorized
attorney in fact, by an instrument in writing duly executed in the presence
of two witnesses and probated, and in addition the person executing the
satisfaction shall make an affidavit that he or the person he represents
is at the time of the satisfaction a bona fide owner and holder of the
mortgage, deed of trust, or other instrument securing the payment of money
and being a lien upon real property and that has not been assigned, hypothecated,
or otherwise disposed of. The affidavit must be recorded along with the
satisfaction. The maker of any affidavit which is false is guilty of perjury
and punished as by law provided for the punishment of perjury.
The signature of owner or holder of the instrument which has been
lost or destroyed to which this section applies may be proved in the manner
provided above or in the alternative may also be acknowledged by the owner
or holder of the instrument in the presence of two witnesses, taken before
an officer competent to administer an oath. The form of the acknowledgement
must be as provided in Section 30-5-30(C) and if the acknowledgement is
taken outside this State, it may be taken in the manner provided in Section
30-5-30(B).
(d) If the mortgage, deed of trust, or other written instrument
was recorded in counterparts, the original of the instrument need not be
presented and the satisfaction of it may be evidenced by an instrument
of satisfaction, release, or discharge, which may be executed in counterparts,
executed by the mortgagee, the holder of the mortgage, the legal representative,
or the attorney-in-fact. Upon presentation of the instrument of satisfaction,
release, or discharge, or a counterpart of it, the officer or his deputy
having charge of the recording of instruments shall record the same.
(e) Any licensed attorney admitted to practice in the State of South
Carolina who can provide proof of payment of funds by evidence of payment
made payable to the mortgagee, holder of record, servicer, or other party
entitled to receive payment may record, or cause to be recorded, an affidavit,
in writing, duly executed in the presence of two witnesses and probated
or acknowledged, which states that full payment of the balance or pay-off
amount of the mortgage or other instrument securing the payment of money
and being a lien upon real property has been made and that evidence of
payment from the mortgagee, assignee, or servicer exists. This affidavit,
duly recorded in the appropriate county, shall serve as notice of satisfaction
of the mortgage and release of the lien upon the real property. The filing
of the affidavit shall be sufficient to satisfy, release, or discharge
the lien. Upon presentation of the instrument of satisfaction, release,
or discharge, the officer or his deputy having charge of the recording
of instruments shall record the same. This section may not be construed
to require an attorney to record an affidavit pursuant to Section 29-3-330(e)
or to create liability for failure to file such affidavit. The licensed
attorney signing any such instrument which is false is guilty of perjury
and subject to Section 16-9-10 and shall be liable for damages that any
person may sustain as a result of the false affidavit, including reasonable
attorney's fees incurred in connection with the recovery of such damages.
SECTION 29-3-340. Certificate of satisfaction.
The recording officer or his deputy shall enter on the original
mortgage, deed of trust, or other instrument securing the payment and being
a lien upon real property when it is produced before him a certificate
that a satisfaction has been entered of record and the date of
the entry.
