Title: Rochester New York Partial Release of Property From Mortgage by Individual Holder — Comprehensive Guide and Types Introduction: If you are a homeowner in Rochester, New York looking to free a portion of your property from a mortgage agreement held by an individual lender, you may need to pursue a Rochester New York Partial Release of Property From Mortgage by Individual Holder. This comprehensive guide will help you understand the process, requirements, and various types of partial releases available in Rochester, New York. Understanding the Rochester New York Partial Release of Property From Mortgage by Individual Holder: A partial release of property from a mortgage is a legal agreement between a borrower and a lender that allows the borrower to release a portion of their property from the mortgage lien, providing them with greater financial flexibility. In Rochester, New York, this can be accomplished through the cooperation of an individual holder of the mortgage. Types of Rochester New York Partial Release of Property From Mortgage by Individual Holder: 1. Residential Property Partial Release: If you own a residential property in Rochester, New York, and wish to release a portion of it from the mortgage, you can obtain a partial release of your property by an individual holder. This type of release is specifically designed for homeowners who want to leverage the increased value of their property while retaining ownership of a portion of it. 2. Commercial Property Partial Release: For owners of commercial properties in Rochester, New York, who want to unlock the equity tied up in their property without selling it entirely, a commercial property partial release can be pursued. This type of release allows borrowers to retain control over a portion of their property while removing the mortgage lien on the released section. 3. Vacant Land Partial Release: If you own vacant land in Rochester, New York, and want to release a specific portion from the mortgage without selling the entire property, you may consider a vacant land partial release. This type of release caters to landowners who wish to untangle specific areas of their land from mortgage obligations and potentially facilitate further development or financial transactions. Requirements for Obtaining a Partial Release: To successfully initiate a Rochester New York Partial Release of Property From Mortgage by Individual Holder, several requirements must be met. These may include but are not limited to: — Documented agreement between the borrower and individual mortgage holder, stating the proportion and specific area being released. — Proof of current appraised value for the entire property, along with supporting valuation documentation. — Updated survey or land plot indicating the area to be released. — Payment or settlement of any associated fees, taxes, or charges for the partial release. Conclusion: A Rochester New York Partial Release of Property From Mortgage by Individual Holder can provide property owners with the flexibility and financial advantages they seek while maintaining ownership in the region. Whether you own a residential property, commercial property, or vacant land, understanding the process, requirements, and types of partial releases available is essential to navigate this legal procedure successfully and unlock your property's potential. Always consult with professionals such as attorneys or mortgage experts to ensure compliance with relevant laws and regulations.
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New York Partial Release of Property From Mortgage by Individual...
Rochester New York Partial Release of Property From Mortgage by Individual Holder
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FAQ
A partial release is a mortgage provision that allows some of the collateral to be released from a mortgage after the borrower pays a certain amount of the loan. Lenders require proof of payment, a survey map, appraisal, and a letter outlining the reason for the partial release.
Once you've met all the mortgage payment terms or fully repaid your loan, your lender's legal team draws up the deed of release form and in it reports that: you've repaid the loan in full under the terms required; and. the lender has removed its charge or 'lien' and has transferred full title to you.
What is a Mortgage Release? A Mortgage Release is where you, the homeowner, voluntarily transfer the ownership of your property to the owner of your mortgage in exchange for a release from your mortgage loan and payments.
A partial release is a mortgage provision that allows some of the collateral to be released from a mortgage after the borrower pays a certain amount of the loan. Lenders require proof of payment, a survey map, appraisal, and a letter outlining the reason for the partial release.
A release deed is a deed whereby the signor releases to the other party any interest if any, they had in the property.
Partial Release Clause is a provision under which the mortgagee agrees to release certain parcels from the lien of the blanket mortgage upon payment of a certain sum of money by the mortgagor. It's frequently found in tract development construction loans.
A partial release of a mortgage is an arrangement you make with your mortgage lender after you've been paying your mortgage for at least 12 months. 1 Typically, a partial release of a mortgage involves delineating which part of the property is still under a lien, and which part has clear title to be sold.
An attorney licensed to practice law in Ohio must prepare deeds, powers of attorney, and other instruments that are to be recorded. One exception is that a party to the transaction may prepare an instrument in which they are a party.
(A blanket loan is a loan that covers more than one property. They are commonly used in real estate development and often contain a release or partial release clause to release parcels from the loan in exchange for a specified reduction in the loan's principal balance.)
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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.
New York Law
Assignment:
An assignment must be in writing and recorded.
Demand to Satisfy:
Not required.
Recording Satisfaction:
After full payoff, mortgagee, unless otherwise requested in writing by mortgagor, must execute and acknowledge before a proper officer a satisfaction of mortgage, and thereupon within forty-five days arrange to have the satisfaction of mortgage either presented for recording to the recording officer of the county where the mortgage is recorded, or, if so requested, to the mortgagor.
Marginal Satisfaction:
Not allowed. A mortgage must be satisfied by recording a separate instrument of release.
Penalty:
The Court shall award costs and reasonable attorney's fees to the debtor, in the absence of the showing of a valid reason for the failure or refusal by the mortgagee to execute the satisfaction of mortgage and deliver the same.
Acknowledgment:
An assignment or satisfaction must contain a proper New York acknowledgment, or other acknowledgment approved by Statute.
New York Statutes
Sec. 275. Certificate of discharge of mortgage required. [But see also, sec. 1921, below.]
1. Whenever a mortgage upon real property is due and payable,
and the full amount of principal and
interest due on the mortgage is paid, a certificate
of discharge of mortgage shall be given to the mortgagor or person
designated by him, signed by the person or persons specified in section
three hundred twenty-one of this chapter. The person signing
the certificate shall, within thirty days
thereafter, arrange to have the certificate presented for recording to
the recording officer of the county where the mortgage is recorded.
The provisions of this section shall not apply to any mortgage
granted to or made by the state
of New York, or any agency or instrumentality
thereof or any political subdivision of the state or any agency
or instrumentality thereof.
2. For purposes of this section,
the full amount of principal and interest due on a mortgage
shall not be considered to be paid whenever such mortgage continues
to secure a bona fide debt and an enforceable lien
continues to exist, such as may occur in the following situations:
(a) the commercial practice of lenders
trading or selling mortgages on the secondary market;
(b) the replacement of a construction loan with permanent
financing;
(c) the refinancing of an existing loan with a new
lender, such as where the original lender assigns a note and the mortgage
securing its payment to another lender in
return for consideration and such mortgage
is consolidated with another mortgage which secures any funds advanced
by the new lender to the mortgagor;
(d) the modification of the terms of a loan by a mortgagor
and mortgagee in order to avoid foreclosure; and
(e) a refinancing that occurs in conjunction
with the sale of property such that the seller conveys property to the
purchaser subject to the lien of the mortgage and
the original lender assigns its note and mortgage on the property to the
purchaser's lender.
§ 1921 Real Prop. Acts. Discharge of mortgage.
1. After payment of authorized principal, interest and
any other amounts due thereunder or otherwise owed by law has actually
been made, and in the case of a credit line mortgage as defined in
section two hundred eighty-one of the real property law on written request,
a mortgagee of real property situated in this state, unless otherwise requested
in writing by the mortgagor or the assignee of such mortgage, must execute
and acknowledge before a proper officer, in like manner as to entitle a
conveyance to be recorded, a satisfaction of mortgage, and thereupon within
forty-five days arrange to have the satisfaction of mortgage: (a) presented
for recording to the recording officer of the county where the mortgage
is recorded, or (b) if so requested by the mortgagor or the mortgagor's
designee, to the mortgagor or the mortgagor's designee. The mortgagee
shall within forty-five days deliver the note and the mortgage and where
a title is registered under article twelve of the real property law, the
registration copy of the mortgage and any registration certificates in
the mortgagee's possession to the mortgagor or the mortgagor's designee
making such payment and request if required as aforesaid. Delivery of
a satisfaction of mortgage in accordance with the terms of section two
hundred seventy-five of the real property law shall be deemed to satisfy
the requirements of this section regarding the satisfaction of mortgage.
2. Upon the failure or refusal of any such mortgagee to comply
with the foregoing provisions of this section any person having an interest
in the mortgage or the debt or obligation secured thereby or in the mortgaged
premises may apply to the supreme court or a justice thereof, or to the
county court or a judge thereof, in or of any county in which the mortgaged
premises or any part thereof are situated in whole or in part, upon a petition,
for an order to show cause why an order should not be made by such court
canceling and discharging the mortgage of record, and directing the register
or clerk of any county in whose office the same may have been recorded
to mark the same upon his records as canceled and discharged, and further
ordering and directing that the debt or other obligation secured by the
mortgage be canceled, upon condition that in the event such mortgage is
not paid, the sums tendered pursuant to the foregoing provisions of this
section be paid to the officer specified by law to hold court funds and
moneys deposited in court in the county wherein the mortgaged premises
are situated in whole or in part. Said petition must be verified in like
manner as a verified pleading in an action in the supreme court and it
must set forth the grounds of the application.
3. In any case where an actual tender, as provided in subdivision
one of this section, cannot with due diligence be made within this state,
any person having an interest in the mortgage or the debt or obligation
secured thereby, or in the mortgaged premises, may apply to the supreme
court or a justice thereof, or to the county court or a judge thereof,
in or of any county in which the mortgaged premises, or any part thereof
are situated in whole or in part, upon petition setting forth the grounds
of the application and verified as aforesaid, for an order to show cause
why an order should not be made by said court canceling and discharging
the mortgage of record, and directing the register or clerk of any county
in whose office the same may have been recorded to mark the same upon his
records as canceled and discharged and further ordering and directing that
the debt or other obligation secured by the mortgage be canceled, upon
condition that the principal sum of the mortgage or any unpaid balance
thereof, with interest up to the date when said order shall be entered
and the aforesaid fees allowed by law, be paid to the officer specified
by law to hold court funds and moneys deposited in court in the county
wherein the mortgaged premises are situated in whole or in part.
4. In the case of a mortgage secured by property improved
by a one-to-six family, owner occupied, residential structure or residential
condominium unit, if the mortgagee fails within ninety days to deliver
the satisfaction of mortgage and/or fails within ninety days to deliver
the note and the mortgage and any other documents as required by subdivision
one of this section and if the mortgage is not otherwise satisfied the
mortgagee shall be liable to such person in the amount of five hundred
dollars or the economic loss to such person, whichever is greater. If the
mortgagee has delivered such satisfaction of mortgage in a timely manner
and has certified that the note and/or mortgage are not in its possession
as of such date, the mortgagee shall not be liable under this section if
the mortgagee agrees to defend and hold harmless the mortgagor by reason
of the inability or failure of the mortgagee to furnish the note or mortgage
within the time period prescribed in this subdivision; provided that in
connection with mortgage loans purchased prior to July twenty-seven, nineteen
hundred ninety-one by the state of New York mortgage agency pursuant to
section two thousand four hundred five or two thousand four hundred five-b
of the public authorities law, the state of New York mortgage agency, its
successors or assigns shall not be liable under this section if it does
not defend and hold harmless the mortgagor by reason of the inability or
failure of the state of New York mortgage agency, its successors or assigns
to furnish the note or mortgage within the time period prescribed in this
subdivision. Damages imposed by this subdivision shall be in addition to
the other costs and fees allowed in this section.
5. (a) In the case of a mortgage secured by property improved
by a one-to-six family, owner occupied, residential structure or residential
condominium unit, if within ninety days of receipt of payment, and request
if required, the mortgagee fails to deliver to the mortgagor or the mortgagor's
designee the satisfaction of mortgage, the note and the mortgage and any
other documents as required by subdivision one of this section, any attorney-at-law
may execute, acknowledge and upon payment of an additional filing fee of
fifty dollars cause to be filed with the recording officer of the county
where the mortgage is recorded, an affidavit which complies with this section.
Unless the mortgagee shall file a verified objection to such affidavit
within thirty-five days of being filed, as of the date thirty-five days
subsequent to its filing, such affidavit shall be recorded and satisfy
the lien of such mortgage on the mortgaged premises.
(b) The affidavit shall state that:
(i) The affiant is an attorney-at-law and that the affidavit
is made on behalf of and at the request of the mortgagor or any person
who has acquired title to the mortgaged premises;
(ii) The mortgagor made a proper request of the mortgagee
for the execution of the satisfaction of mortgage pursuant to subdivision
one of this section;
(iii) The mortgagor has received a payoff statement for
the loan secured by the mortgage, and shall annex as evidence a copy of
the payoff statement;
(iv) The affiant has ascertained that the mortgagee received
payment of the loan in accordance with the payoff statement, and shall
annex as evidence, copies of the check negotiated by the mortgagee or documentary
evidence of such payment;
(v) The affiant, at least thirty days after the mortgagee
received payment, has given the mortgagee written notice together with
a copy of the proposed affidavit, delivered by certified or registered
mail, return receipt requested, to the attention of the person or department
set forth in the payoff statement, of the affiant's intention to execute
and record an affidavit in accordance with this section; and
(vi) The mortgagee has not responded in writing to such
notification or all requests by the mortgagee for payment have been complied
with at least fifteen days prior to the date of the affidavit.
(c) Such affidavit shall identify the mortgagor and the mortgagee,
state the date of the mortgage, the liber and page of the land records
where the mortgage is recorded and give similar information with respect
to any recorded assignment of the mortgage.
(d) The affiant shall attach to the affidavit photostatic
copies of the documentary evidence that payment has been received by the
mortgagee, including mortgagee's endorsement of any check, and a photostatic
copy of the payoff statement and certify each to be a copy of the original
document.
(e) Within five days of the filing of such affidavit the
register or clerk of every county in whose office said mortgage has been
recorded shall give the mortgagee written notice, delivered by certified
or registered mail, return receipt requested, to the attention of the person
or department set forth in the payoff statement, as annexed to the affidavit
filed hereunder, of the filing of such affidavit, which notice shall include
the following notice in capital letters:
"THIS NOTICE IS MADE UNDER SECTION 1921 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW. FAILURE TO FILE WITH THIS OFFICE WITHIN THIRTY DAYS OF THIS NOTICE A VERIFIED OBJECTION TO THE DISCHARGE OF THE MORTGAGE DESCRIBED IN THIS NOTICE WILL RESULT IN SUCH MORTGAGE BEING CANCELED AND DISCHARGED OF RECORD."
Unless the register or clerk of such county shall receive from the
mortgagee, within thirty-five days of the date of filing of such affidavit,
a verified objection by the mortgagee to the discharge of said mortgage,
the register or clerk shall record the affidavit and supporting documents
and mark the mortgage described in the affidavit canceled and discharged
of record and such recorded affidavit shall have the same force and effect
as a duly executed satisfaction of mortgage recorded in accordance with
section three hundred twenty-one of the real property law. If the register
or clerk of such county shall receive from the mortgagee, within thirty-five
days of the date of filing of such affidavit, a verified objection by the
mortgagee to the discharge of said mortgage, the register or clerk shall
return the original affidavit and the verified objection to the attorney
filing such affidavit without marking the mortgage described in the affidavit
canceled or discharged of record. The clerk or register of such county
shall additionally transmit a copy of the affidavit and the verified objection
to its applicable appellate division of the supreme court, committee on
professional standards, for such further proceedings as determined appropriate
by such committee.
(f) The county clerk or register shall index the affidavit
in the same manner as a satisfaction of mortgage and shall record such
instrument upon payment of the same fees as for a satisfaction of mortgage.
(g) (i) Any attorney who prepares an affidavit and negligently
causes the affidavit to contain false information shall be liable to the
mortgagee for any monetary damages and subject to other applicable sanctions
under law.
(ii) Any person who supplies false information for the affidavit
shall be liable to the mortgagee for any monetary damages and subject to
other applicable sanctions under law.
(h) A banking or other organization having the original or
copies thereof, shall furnish, within sixty days of receiving a written
request, a copy of the front and reverse sides of a check issued to satisfy
the mortgage obligation by such banking or other organization, needed for
completion of an affidavit in accordance with this subdivision.
6. Eight days' notice of the application for either of the
orders provided for in subdivisions two and three of this section shall
be given to the then mortgagee of record and also, if the petition shows
that there is a mortgage not of record, to such mortgagee. Such notice
shall be given in such manner as the court or the judge or justice thereof
to whom the petition is presented may direct, and said court or judge or
justice may require such longer notice to be given as may seem proper.
If sufficient cause be shown the court or judge or justice thereof may
issue such order to show cause returnable in less than eight days.
7. Upon the return day of such order to show cause, the court,
upon proof of due service thereof and on proof of the identity of the mortgagee
and of the person presenting the petition, shall inquire in such manner
as it may deem advisable, into the truth of the facts set forth in the
petition, and in case it shall appear that said principal sum or any unpaid
balance thereof and interest and the said fees allowed by law have been
duly paid or tendered but not accepted and said satisfaction of mortgage
has been duly presented for execution, or that such tender and presentation
could not have been made within this state with due diligence, then, in
the event such mortgage is not paid, the court shall make an order directing
the sums so tendered, or in a case where such tender could not have been
made as aforesaid, directing the principal sum or any unpaid balance thereof,
with interest thereon to the date of entry of said order together with
all other amounts due thereunder pursuant to subdivision three of this
section and the aforesaid fees allowed by law, to be paid to the officer
specified by law to hold court funds and moneys deposited in court in the
county wherein the application herein is made, and directing and ordering
that upon such payment the debt or other obligation secured by the mortgage
be canceled and further directing the register or clerk of any and every
county in whose office said mortgage shall have been recorded to mark said
mortgage canceled and discharged of record upon the production and delivery
to such register or clerk of a certified copy of the order and the receipt
of such officer, showing that the amount required by said order has been
deposited with him, which certified copy of said order and which receipt
shall be recorded, filed and indexed by any such register or clerk in the
same manner as a certificate of discharge of a mortgage. Said receipt need
not be acknowledged to entitle it to be recorded. The court in its discretion,
when granting any such order after application therefor pursuant to subdivision
two of this section, may award costs and reasonable attorney's fees
to the person making the application, in the absence of the showing of
a valid reason for the failure or refusal to execute the satisfaction of
mortgage and deliver the same, the note and mortgage and any other
documents required under subdivision one of this section. The money deposited
shall be payable to the mortgagee, his personal representative or assigns,
upon an order of the supreme court or county court, directing the payment
thereof to him upon such evidence as to his right to receive the same as
shall be satisfactory to the court.
8. Wherever any register or clerk shall record any order
and receipt as hereinbefore specified, he shall mark the record of said
mortgage as follows:
"Canceled and discharged by order of the .......................... Court, County of ...................... , dated .................. and filed ...................... ," and thereupon the lien of such mortgage shall be deemed to be discharged and the debt secured thereby shall be deemed to be canceled. Said register or clerk shall be permitted to charge for recording and filing said order and receipt, the same fees to which he is now entitled for recording and filing a certificate of satisfaction of a mortgage.
9. When used in this section:
(a) "Mortgagee" means (i) the current holder of the mortgage
of record or the current holder of the mortgage, or (ii) any person to
whom payments are required to be made or (iii) their personal representatives,
agents, successors, or assigns.
(b) "Attorney-at-law" means any person admitted to practice
law in this state and in good standing.
(c) "Payoff statement" means a statement setting forth the
unpaid balance of the mortgage, including principal, interest and other
charges pursuant to the loan documents, together with a per diem rate for
interest accruing after the date to which the unpaid balance has been calculated.
The payoff statement furnished by a banking organization or corporate mortgagee
shall include a name of an individual employed by such banking organization
or corporate mortgagee or department of such banking organization or corporate
mortgagee to whom inquiry concerning the payoff statements are to be addressed
in addition to the address of the banking organization or corporation for
use in connection with the affidavit under subdivision five of this section.
(d) "Banking organization" shall have the same meaning as
provided in subdivision eleven of section two of the banking law and shall
include any institution chartered or licensed by the United States or any
state.
(e) "Note" shall include any written evidence of indebtedness.
§ 321 Real Prop. Recording discharge of mortgage.
1. The recording officer shall mark on the record of a mortgage
the word "discharged" when there is presented to him a certificate or certificates
signed as hereinafter provided, and acknowledged or proved and certified
in like manner as to entitle a conveyance to be recorded, specifying that
the mortgage has been paid or otherwise satisfied and discharged.
(a) When it does not appear from the record that any interest
in the mortgage has been assigned, the discharge shall be signed by the
mortgagee or by his personal representative.
(b) When it appears from the record that the mortgage has
been assigned, whether or not the assignment was made as collateral security,
the discharge shall be signed by the person who appears from the record
to be the last assignee thereof or by his personal representative.
(c) When the mortgage or an assignment thereof names two
or more persons as mortgagees or assignees, the discharge shall be signed
by the person or persons designated by the mortgage or assignment to receive
payment of the mortgage debt or to give full acquittance and discharge
therefor. When no such person or persons are designated by the mortgage
or assignment, the certificate of discharge shall be signed by all of the
persons named, in the mortgage or assignment, as mortgagees or assignees,
as the case may be, or by their personal representatives, if the mortgage
or assignment (i) specifies their respective interest in terms of a sum
of money, or in terms of a fraction or percentage, or (ii) states that
such persons shall share equally in, or shall have equal shares in the
mortgage, or (iii) describes such persons as tenants in common of the mortgage.
When it appears from the record that the mortgage is held by trustees,
the certificate of discharge shall be signed by a majority of such trustees
or of the survivors of them or by the survivors or survivor of them, unless
the instrument creating the trust provides otherwise. Except as required
above, the discharge may be signed by any one of the persons named in the
mortgage or assignment, as mortgagees or assignees, as the case may be,
or by the personal representative of the last survivor of them. If the
mortgage or assignment states that the persons named therein as mortgagees
or assignees shall hold the mortgage jointly, or describes such persons
as joint tenants or tenants by the entirety of the mortgage, or expressly
creates a right of survivorship among them, the discharge may be signed
by any one of such persons or by the personal representative of the last
survivor of them notwithstanding that the mortgage or assignment specifies
their respective interests in the mortgage or states that they shall share
equally or have equal shares therein.
(d) When the mortgage has been partially assigned, the certificate
of discharge shall be signed by all of the persons, or their personal representatives,
who in the aggregate are the holders of all portions of the mortgage, including
each partial assignee, and the assignor in case any portion of the mortgage
has not been assigned; provided, however, that if any partial assignment
names two or more persons as assignees, the person or persons who may sign
the certificate discharging such partial interest shall be determined in
accordance with the provisions of paragraph (c) of this subdivision.
(e) Whenever two or more persons are required to execute
a certificate of discharge as provided in this subdivision, there may be
presented in lieu of such certificate, separately executed certificates
of discharge as to the respective interests of each in the mortgage so
that together the several certificates purport to discharge the entire
mortgage.
(f) In place of any of the persons specified in paragraphs
(a), (b), (c) or (d) of this subdivision, a certificate of discharge of
the mortgage or of any interest therein may be signed (i) by an agent who
has been authorized by any such person to demand or receive payment or
to give a certificate of discharge of the mortgage by a power of attorney,
provided such power of attorney is of record in the office where the mortgage
is recorded, and no instrument of revocation has been recorded; or (ii)
by any person in whom title to such mortgage or to such interest, or authority
to act on behalf of or in exercise of the right or power of the holder
of such mortgage or of such interest is vested, in a fiduciary capacity,
by virtue of an order or decree of a court having jurisdiction thereof,
including, but not limited to, the guardian of a minor, the committee of
an incompetent person, or the conservator of a conservatee, whether domestic
or foreign, and a receiver in bankruptcy or trustee in bankruptcy. A certificate
executed by any person specified in clause (ii) of this paragraph shall
recite the name of the court and the venue of the proceedings in which
his appointment was made, or the order or decree vesting him with such
title or authority was entered.
(g) If the mortgage is stated in the certificate of discharge
to have been taken by the alien property custodian under and pursuant to
the trading with the enemy act adopted by the United States congress, and
approved October sixth, nineteen hundred sixteen, or any act amendatory
thereof, or supplemental thereto, such certificate may be executed by such
alien property custodian or such person as the president may appoint to
give full acquittance and discharge for money or property belonging to
an enemy or ally of an enemy which may be conveyed, assigned, delivered
or transferred to said alien property custodian, with like effect as if
the same had been executed by the mortgagee, his personal representative
or assignee. Such certificate may be recorded, and such certificate, the
record thereof and a certified copy of such record may be introduced in
evidence in all courts of this state.
2. (a) The recording officer shall record and file such certificate
or certificates together with the certificates of acknowledgment or proof,
and shall note on the record of the mortgage the book and page containing
such record of such certificate or certificates or the serial number of
such record in the minute of the discharge of such mortgage, made by the
officer upon the record thereof. The provisions of this paragraph shall
not apply to the county of Suffolk, if the block method of index is in
use, or a separate index of satisfactions recorded is maintained.
(b) The recording officer shall also record every other instrument
relating to a mortgage which is presented to him, acknowledged or proved
in like manner as to entitle a conveyance to be recorded, including certificates
purporting to discharge a mortgage or an interest therein which are signed
by persons other than those specified in the first subdivision of this
section, and also including, but not limited to, assignments, releases,
partial discharges, reductions, estoppel certificates, extensions, discharges
of partial interest and partial discharges of partial interest, regardless
by whom any such instrument has been executed. When any such instrument
has been recorded, the recording officer, except in counties where the
block method of indexing is in use, or in Suffolk county, if a separate
index of said instruments is maintained, shall enter a minute upon the
record of the mortgage to which such instrument relates, indicating the
nature of such instrument and the book and page where it has been recorded
or the serial number of such record.
3. Every certificate presented to the recording officer shall
be executed and acknowledged or proved in like manner as to entitle a conveyance
to be recorded. If the mortgage has been assigned, in whole or in part,
the certificate shall set forth the date of each assignment in the chain
of title of the person or persons signing the certificate, the names of
the assignor and assignee, the interest assigned, and, if the assignment
has been recorded, the book and page where it has been recorded or the
serial number of such record; or if the assignment is being recorded simultaneously
with the certificate of discharge, the certificate of discharge shall so
state. If the mortgage has not been assigned of record, the certificate
shall so state.
No certificate presented to the recording officer shall purport
to discharge more than one mortgage, except that one certificate may purport
to discharge two or more mortgages where the certificate states that one
of such mortgages corrects, perfects or modifies the other mortgage or
mortgages, or spreads the lien of the other mortgage or mortgages over
the property subject to the lien of such mortgage, or consolidates the
lien of the other mortgage or mortgages with the lien of such mortgage
to constitute a single lien, or where the certificate states that the liens
of the mortgages which the certificate purports to discharge have been
so spread or so consolidated by a separate instrument and such instrument
has been recorded; provided that in such case the certificate of discharge
shall identify and describe each mortgage which it purports to discharge,
in a separate paragraph, in the same manner and with the same particularity,
and setting forth the same information with respect to assignments thereof,
as would be required for a separate certificate discharging that mortgage,
and shall also state, in a separate paragraph for each instrument, the
date of any such separate instrument by which the liens of the mortgages
have been spread or consolidated, the names of the parties thereto, and
the book and page where it has been recorded or the serial number of such
record. In any such case, except where otherwise expressly provided by
law, the fee or fees which the recording officer is entitled to receive
for filing and entering a certificate of discharge of a mortgage and examining
assignments of such mortgage shall be payable with respect to each mortgage
which the certificate purports to discharge, to the same extent as if a
separate certificate of discharge had been filed for such mortgage.
4. After the record of the mortgage has been marked with
the word "discharged," the recording officer shall make and deliver to
any person tendering the lawful fees therefor, his certificate setting
forth the names of the mortgagor and the mortgagee, the book and page at
which, the date when such mortgage was recorded, and the date on which
the record of such mortgage was so marked, except in a county where recording
is done by microphotography or photostating in the manner permitted by
law, in which case, after microphotography or photostating, such certificate
of discharge and the certificates of its acknowledgment or proof shall,
in lieu of filing as provided in paragraph (a) of subdivision two of this
section, be returned to the party leaving same for record.
5. The term "personal representative" as used in this section
shall include the following:
(a) An executor, administrator or voluntary administrator
or one of two or more executors, administrators or voluntary administrators,
whether domestic or foreign, including the public administrator, and an
ancillary administrator appointed in this state. A certificate executed
by any such personal representative shall recite the name of the court
and the venue of the proceedings in which his letters testamentary or of
administration were issued.
(b) All of the distributees of a person dying intestate for
whom no administrator shall have been appointed, provided that two years
shall have elapsed since the date of death of such intestate. A certificate
executed by such distributees shall recite the date of death of the intestate,
his place of residence at the time of death, the fact that he died intestate,
that no administrator has been appointed and that they constitute all the
distributees of the intestate.
6. The provisions of this section authorizing the recording
officer to mark on the record of a mortgage the word "discharged" shall
not be deemed to enlarge, diminish or alter the legal effect which a certificate
executed by any person or persons, or any payment made by the mortgagor
or other transaction with respect to the mortgage or the mortgage debt,
would otherwise have upon the rights of the mortgagor or of any person
claiming a right or interest in the mortgage, the mortgage debt or the
property subject to the mortgage.
7. In a county in which recording is accomplished by microfilm
process and in which a block index of mortgages is also maintained it will
not be necessary to mark the record of the mortgage "discharged", but it
will be deemed sufficient compliance with this section if there is entered
upon the block index of such mortgage the date of filing and the serial
number of the certificate effecting the discharge.
7-a. If in any county, recording is accomplished by microfilm
process and a separate index for satisfactions recorded is maintained or
in which a block index of mortgages is also maintained it will not be necessary
to mark the record of the mortgage "discharged", but it will be deemed
sufficient compliance with this section if there is entered upon the index
of such mortgage the date of filing and the serial number of the certificate
effecting the discharge.
8. Certificates of discharge of mortgage and certificates
of their acknowledgment or proof heretofore or hereafter recorded and filed,
may be returned personally or by mail to the party leaving same for record
or destroyed after microfilming or photostating where proper indices are
maintained.
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.
New York Law
Assignment:
An assignment must be in writing and recorded.
Demand to Satisfy:
Not required.
Recording Satisfaction:
After full payoff, mortgagee, unless otherwise requested in writing by mortgagor, must execute and acknowledge before a proper officer a satisfaction of mortgage, and thereupon within forty-five days arrange to have the satisfaction of mortgage either presented for recording to the recording officer of the county where the mortgage is recorded, or, if so requested, to the mortgagor.
Marginal Satisfaction:
Not allowed. A mortgage must be satisfied by recording a separate instrument of release.
Penalty:
The Court shall award costs and reasonable attorney's fees to the debtor, in the absence of the showing of a valid reason for the failure or refusal by the mortgagee to execute the satisfaction of mortgage and deliver the same.
Acknowledgment:
An assignment or satisfaction must contain a proper New York acknowledgment, or other acknowledgment approved by Statute.
New York Statutes
Sec. 275. Certificate of discharge of mortgage required. [But see also, sec. 1921, below.]
1. Whenever a mortgage upon real property is due and payable,
and the full amount of principal and
interest due on the mortgage is paid, a certificate
of discharge of mortgage shall be given to the mortgagor or person
designated by him, signed by the person or persons specified in section
three hundred twenty-one of this chapter. The person signing
the certificate shall, within thirty days
thereafter, arrange to have the certificate presented for recording to
the recording officer of the county where the mortgage is recorded.
The provisions of this section shall not apply to any mortgage
granted to or made by the state
of New York, or any agency or instrumentality
thereof or any political subdivision of the state or any agency
or instrumentality thereof.
2. For purposes of this section,
the full amount of principal and interest due on a mortgage
shall not be considered to be paid whenever such mortgage continues
to secure a bona fide debt and an enforceable lien
continues to exist, such as may occur in the following situations:
(a) the commercial practice of lenders
trading or selling mortgages on the secondary market;
(b) the replacement of a construction loan with permanent
financing;
(c) the refinancing of an existing loan with a new
lender, such as where the original lender assigns a note and the mortgage
securing its payment to another lender in
return for consideration and such mortgage
is consolidated with another mortgage which secures any funds advanced
by the new lender to the mortgagor;
(d) the modification of the terms of a loan by a mortgagor
and mortgagee in order to avoid foreclosure; and
(e) a refinancing that occurs in conjunction
with the sale of property such that the seller conveys property to the
purchaser subject to the lien of the mortgage and
the original lender assigns its note and mortgage on the property to the
purchaser's lender.
§ 1921 Real Prop. Acts. Discharge of mortgage.
1. After payment of authorized principal, interest and
any other amounts due thereunder or otherwise owed by law has actually
been made, and in the case of a credit line mortgage as defined in
section two hundred eighty-one of the real property law on written request,
a mortgagee of real property situated in this state, unless otherwise requested
in writing by the mortgagor or the assignee of such mortgage, must execute
and acknowledge before a proper officer, in like manner as to entitle a
conveyance to be recorded, a satisfaction of mortgage, and thereupon within
forty-five days arrange to have the satisfaction of mortgage: (a) presented
for recording to the recording officer of the county where the mortgage
is recorded, or (b) if so requested by the mortgagor or the mortgagor's
designee, to the mortgagor or the mortgagor's designee. The mortgagee
shall within forty-five days deliver the note and the mortgage and where
a title is registered under article twelve of the real property law, the
registration copy of the mortgage and any registration certificates in
the mortgagee's possession to the mortgagor or the mortgagor's designee
making such payment and request if required as aforesaid. Delivery of
a satisfaction of mortgage in accordance with the terms of section two
hundred seventy-five of the real property law shall be deemed to satisfy
the requirements of this section regarding the satisfaction of mortgage.
2. Upon the failure or refusal of any such mortgagee to comply
with the foregoing provisions of this section any person having an interest
in the mortgage or the debt or obligation secured thereby or in the mortgaged
premises may apply to the supreme court or a justice thereof, or to the
county court or a judge thereof, in or of any county in which the mortgaged
premises or any part thereof are situated in whole or in part, upon a petition,
for an order to show cause why an order should not be made by such court
canceling and discharging the mortgage of record, and directing the register
or clerk of any county in whose office the same may have been recorded
to mark the same upon his records as canceled and discharged, and further
ordering and directing that the debt or other obligation secured by the
mortgage be canceled, upon condition that in the event such mortgage is
not paid, the sums tendered pursuant to the foregoing provisions of this
section be paid to the officer specified by law to hold court funds and
moneys deposited in court in the county wherein the mortgaged premises
are situated in whole or in part. Said petition must be verified in like
manner as a verified pleading in an action in the supreme court and it
must set forth the grounds of the application.
3. In any case where an actual tender, as provided in subdivision
one of this section, cannot with due diligence be made within this state,
any person having an interest in the mortgage or the debt or obligation
secured thereby, or in the mortgaged premises, may apply to the supreme
court or a justice thereof, or to the county court or a judge thereof,
in or of any county in which the mortgaged premises, or any part thereof
are situated in whole or in part, upon petition setting forth the grounds
of the application and verified as aforesaid, for an order to show cause
why an order should not be made by said court canceling and discharging
the mortgage of record, and directing the register or clerk of any county
in whose office the same may have been recorded to mark the same upon his
records as canceled and discharged and further ordering and directing that
the debt or other obligation secured by the mortgage be canceled, upon
condition that the principal sum of the mortgage or any unpaid balance
thereof, with interest up to the date when said order shall be entered
and the aforesaid fees allowed by law, be paid to the officer specified
by law to hold court funds and moneys deposited in court in the county
wherein the mortgaged premises are situated in whole or in part.
4. In the case of a mortgage secured by property improved
by a one-to-six family, owner occupied, residential structure or residential
condominium unit, if the mortgagee fails within ninety days to deliver
the satisfaction of mortgage and/or fails within ninety days to deliver
the note and the mortgage and any other documents as required by subdivision
one of this section and if the mortgage is not otherwise satisfied the
mortgagee shall be liable to such person in the amount of five hundred
dollars or the economic loss to such person, whichever is greater. If the
mortgagee has delivered such satisfaction of mortgage in a timely manner
and has certified that the note and/or mortgage are not in its possession
as of such date, the mortgagee shall not be liable under this section if
the mortgagee agrees to defend and hold harmless the mortgagor by reason
of the inability or failure of the mortgagee to furnish the note or mortgage
within the time period prescribed in this subdivision; provided that in
connection with mortgage loans purchased prior to July twenty-seven, nineteen
hundred ninety-one by the state of New York mortgage agency pursuant to
section two thousand four hundred five or two thousand four hundred five-b
of the public authorities law, the state of New York mortgage agency, its
successors or assigns shall not be liable under this section if it does
not defend and hold harmless the mortgagor by reason of the inability or
failure of the state of New York mortgage agency, its successors or assigns
to furnish the note or mortgage within the time period prescribed in this
subdivision. Damages imposed by this subdivision shall be in addition to
the other costs and fees allowed in this section.
5. (a) In the case of a mortgage secured by property improved
by a one-to-six family, owner occupied, residential structure or residential
condominium unit, if within ninety days of receipt of payment, and request
if required, the mortgagee fails to deliver to the mortgagor or the mortgagor's
designee the satisfaction of mortgage, the note and the mortgage and any
other documents as required by subdivision one of this section, any attorney-at-law
may execute, acknowledge and upon payment of an additional filing fee of
fifty dollars cause to be filed with the recording officer of the county
where the mortgage is recorded, an affidavit which complies with this section.
Unless the mortgagee shall file a verified objection to such affidavit
within thirty-five days of being filed, as of the date thirty-five days
subsequent to its filing, such affidavit shall be recorded and satisfy
the lien of such mortgage on the mortgaged premises.
(b) The affidavit shall state that:
(i) The affiant is an attorney-at-law and that the affidavit
is made on behalf of and at the request of the mortgagor or any person
who has acquired title to the mortgaged premises;
(ii) The mortgagor made a proper request of the mortgagee
for the execution of the satisfaction of mortgage pursuant to subdivision
one of this section;
(iii) The mortgagor has received a payoff statement for
the loan secured by the mortgage, and shall annex as evidence a copy of
the payoff statement;
(iv) The affiant has ascertained that the mortgagee received
payment of the loan in accordance with the payoff statement, and shall
annex as evidence, copies of the check negotiated by the mortgagee or documentary
evidence of such payment;
(v) The affiant, at least thirty days after the mortgagee
received payment, has given the mortgagee written notice together with
a copy of the proposed affidavit, delivered by certified or registered
mail, return receipt requested, to the attention of the person or department
set forth in the payoff statement, of the affiant's intention to execute
and record an affidavit in accordance with this section; and
(vi) The mortgagee has not responded in writing to such
notification or all requests by the mortgagee for payment have been complied
with at least fifteen days prior to the date of the affidavit.
(c) Such affidavit shall identify the mortgagor and the mortgagee,
state the date of the mortgage, the liber and page of the land records
where the mortgage is recorded and give similar information with respect
to any recorded assignment of the mortgage.
(d) The affiant shall attach to the affidavit photostatic
copies of the documentary evidence that payment has been received by the
mortgagee, including mortgagee's endorsement of any check, and a photostatic
copy of the payoff statement and certify each to be a copy of the original
document.
(e) Within five days of the filing of such affidavit the
register or clerk of every county in whose office said mortgage has been
recorded shall give the mortgagee written notice, delivered by certified
or registered mail, return receipt requested, to the attention of the person
or department set forth in the payoff statement, as annexed to the affidavit
filed hereunder, of the filing of such affidavit, which notice shall include
the following notice in capital letters:
"THIS NOTICE IS MADE UNDER SECTION 1921 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW. FAILURE TO FILE WITH THIS OFFICE WITHIN THIRTY DAYS OF THIS NOTICE A VERIFIED OBJECTION TO THE DISCHARGE OF THE MORTGAGE DESCRIBED IN THIS NOTICE WILL RESULT IN SUCH MORTGAGE BEING CANCELED AND DISCHARGED OF RECORD."
Unless the register or clerk of such county shall receive from the
mortgagee, within thirty-five days of the date of filing of such affidavit,
a verified objection by the mortgagee to the discharge of said mortgage,
the register or clerk shall record the affidavit and supporting documents
and mark the mortgage described in the affidavit canceled and discharged
of record and such recorded affidavit shall have the same force and effect
as a duly executed satisfaction of mortgage recorded in accordance with
section three hundred twenty-one of the real property law. If the register
or clerk of such county shall receive from the mortgagee, within thirty-five
days of the date of filing of such affidavit, a verified objection by the
mortgagee to the discharge of said mortgage, the register or clerk shall
return the original affidavit and the verified objection to the attorney
filing such affidavit without marking the mortgage described in the affidavit
canceled or discharged of record. The clerk or register of such county
shall additionally transmit a copy of the affidavit and the verified objection
to its applicable appellate division of the supreme court, committee on
professional standards, for such further proceedings as determined appropriate
by such committee.
(f) The county clerk or register shall index the affidavit
in the same manner as a satisfaction of mortgage and shall record such
instrument upon payment of the same fees as for a satisfaction of mortgage.
(g) (i) Any attorney who prepares an affidavit and negligently
causes the affidavit to contain false information shall be liable to the
mortgagee for any monetary damages and subject to other applicable sanctions
under law.
(ii) Any person who supplies false information for the affidavit
shall be liable to the mortgagee for any monetary damages and subject to
other applicable sanctions under law.
(h) A banking or other organization having the original or
copies thereof, shall furnish, within sixty days of receiving a written
request, a copy of the front and reverse sides of a check issued to satisfy
the mortgage obligation by such banking or other organization, needed for
completion of an affidavit in accordance with this subdivision.
6. Eight days' notice of the application for either of the
orders provided for in subdivisions two and three of this section shall
be given to the then mortgagee of record and also, if the petition shows
that there is a mortgage not of record, to such mortgagee. Such notice
shall be given in such manner as the court or the judge or justice thereof
to whom the petition is presented may direct, and said court or judge or
justice may require such longer notice to be given as may seem proper.
If sufficient cause be shown the court or judge or justice thereof may
issue such order to show cause returnable in less than eight days.
7. Upon the return day of such order to show cause, the court,
upon proof of due service thereof and on proof of the identity of the mortgagee
and of the person presenting the petition, shall inquire in such manner
as it may deem advisable, into the truth of the facts set forth in the
petition, and in case it shall appear that said principal sum or any unpaid
balance thereof and interest and the said fees allowed by law have been
duly paid or tendered but not accepted and said satisfaction of mortgage
has been duly presented for execution, or that such tender and presentation
could not have been made within this state with due diligence, then, in
the event such mortgage is not paid, the court shall make an order directing
the sums so tendered, or in a case where such tender could not have been
made as aforesaid, directing the principal sum or any unpaid balance thereof,
with interest thereon to the date of entry of said order together with
all other amounts due thereunder pursuant to subdivision three of this
section and the aforesaid fees allowed by law, to be paid to the officer
specified by law to hold court funds and moneys deposited in court in the
county wherein the application herein is made, and directing and ordering
that upon such payment the debt or other obligation secured by the mortgage
be canceled and further directing the register or clerk of any and every
county in whose office said mortgage shall have been recorded to mark said
mortgage canceled and discharged of record upon the production and delivery
to such register or clerk of a certified copy of the order and the receipt
of such officer, showing that the amount required by said order has been
deposited with him, which certified copy of said order and which receipt
shall be recorded, filed and indexed by any such register or clerk in the
same manner as a certificate of discharge of a mortgage. Said receipt need
not be acknowledged to entitle it to be recorded. The court in its discretion,
when granting any such order after application therefor pursuant to subdivision
two of this section, may award costs and reasonable attorney's fees
to the person making the application, in the absence of the showing of
a valid reason for the failure or refusal to execute the satisfaction of
mortgage and deliver the same, the note and mortgage and any other
documents required under subdivision one of this section. The money deposited
shall be payable to the mortgagee, his personal representative or assigns,
upon an order of the supreme court or county court, directing the payment
thereof to him upon such evidence as to his right to receive the same as
shall be satisfactory to the court.
8. Wherever any register or clerk shall record any order
and receipt as hereinbefore specified, he shall mark the record of said
mortgage as follows:
"Canceled and discharged by order of the .......................... Court, County of ...................... , dated .................. and filed ...................... ," and thereupon the lien of such mortgage shall be deemed to be discharged and the debt secured thereby shall be deemed to be canceled. Said register or clerk shall be permitted to charge for recording and filing said order and receipt, the same fees to which he is now entitled for recording and filing a certificate of satisfaction of a mortgage.
9. When used in this section:
(a) "Mortgagee" means (i) the current holder of the mortgage
of record or the current holder of the mortgage, or (ii) any person to
whom payments are required to be made or (iii) their personal representatives,
agents, successors, or assigns.
(b) "Attorney-at-law" means any person admitted to practice
law in this state and in good standing.
(c) "Payoff statement" means a statement setting forth the
unpaid balance of the mortgage, including principal, interest and other
charges pursuant to the loan documents, together with a per diem rate for
interest accruing after the date to which the unpaid balance has been calculated.
The payoff statement furnished by a banking organization or corporate mortgagee
shall include a name of an individual employed by such banking organization
or corporate mortgagee or department of such banking organization or corporate
mortgagee to whom inquiry concerning the payoff statements are to be addressed
in addition to the address of the banking organization or corporation for
use in connection with the affidavit under subdivision five of this section.
(d) "Banking organization" shall have the same meaning as
provided in subdivision eleven of section two of the banking law and shall
include any institution chartered or licensed by the United States or any
state.
(e) "Note" shall include any written evidence of indebtedness.
§ 321 Real Prop. Recording discharge of mortgage.
1. The recording officer shall mark on the record of a mortgage
the word "discharged" when there is presented to him a certificate or certificates
signed as hereinafter provided, and acknowledged or proved and certified
in like manner as to entitle a conveyance to be recorded, specifying that
the mortgage has been paid or otherwise satisfied and discharged.
(a) When it does not appear from the record that any interest
in the mortgage has been assigned, the discharge shall be signed by the
mortgagee or by his personal representative.
(b) When it appears from the record that the mortgage has
been assigned, whether or not the assignment was made as collateral security,
the discharge shall be signed by the person who appears from the record
to be the last assignee thereof or by his personal representative.
(c) When the mortgage or an assignment thereof names two
or more persons as mortgagees or assignees, the discharge shall be signed
by the person or persons designated by the mortgage or assignment to receive
payment of the mortgage debt or to give full acquittance and discharge
therefor. When no such person or persons are designated by the mortgage
or assignment, the certificate of discharge shall be signed by all of the
persons named, in the mortgage or assignment, as mortgagees or assignees,
as the case may be, or by their personal representatives, if the mortgage
or assignment (i) specifies their respective interest in terms of a sum
of money, or in terms of a fraction or percentage, or (ii) states that
such persons shall share equally in, or shall have equal shares in the
mortgage, or (iii) describes such persons as tenants in common of the mortgage.
When it appears from the record that the mortgage is held by trustees,
the certificate of discharge shall be signed by a majority of such trustees
or of the survivors of them or by the survivors or survivor of them, unless
the instrument creating the trust provides otherwise. Except as required
above, the discharge may be signed by any one of the persons named in the
mortgage or assignment, as mortgagees or assignees, as the case may be,
or by the personal representative of the last survivor of them. If the
mortgage or assignment states that the persons named therein as mortgagees
or assignees shall hold the mortgage jointly, or describes such persons
as joint tenants or tenants by the entirety of the mortgage, or expressly
creates a right of survivorship among them, the discharge may be signed
by any one of such persons or by the personal representative of the last
survivor of them notwithstanding that the mortgage or assignment specifies
their respective interests in the mortgage or states that they shall share
equally or have equal shares therein.
(d) When the mortgage has been partially assigned, the certificate
of discharge shall be signed by all of the persons, or their personal representatives,
who in the aggregate are the holders of all portions of the mortgage, including
each partial assignee, and the assignor in case any portion of the mortgage
has not been assigned; provided, however, that if any partial assignment
names two or more persons as assignees, the person or persons who may sign
the certificate discharging such partial interest shall be determined in
accordance with the provisions of paragraph (c) of this subdivision.
(e) Whenever two or more persons are required to execute
a certificate of discharge as provided in this subdivision, there may be
presented in lieu of such certificate, separately executed certificates
of discharge as to the respective interests of each in the mortgage so
that together the several certificates purport to discharge the entire
mortgage.
(f) In place of any of the persons specified in paragraphs
(a), (b), (c) or (d) of this subdivision, a certificate of discharge of
the mortgage or of any interest therein may be signed (i) by an agent who
has been authorized by any such person to demand or receive payment or
to give a certificate of discharge of the mortgage by a power of attorney,
provided such power of attorney is of record in the office where the mortgage
is recorded, and no instrument of revocation has been recorded; or (ii)
by any person in whom title to such mortgage or to such interest, or authority
to act on behalf of or in exercise of the right or power of the holder
of such mortgage or of such interest is vested, in a fiduciary capacity,
by virtue of an order or decree of a court having jurisdiction thereof,
including, but not limited to, the guardian of a minor, the committee of
an incompetent person, or the conservator of a conservatee, whether domestic
or foreign, and a receiver in bankruptcy or trustee in bankruptcy. A certificate
executed by any person specified in clause (ii) of this paragraph shall
recite the name of the court and the venue of the proceedings in which
his appointment was made, or the order or decree vesting him with such
title or authority was entered.
(g) If the mortgage is stated in the certificate of discharge
to have been taken by the alien property custodian under and pursuant to
the trading with the enemy act adopted by the United States congress, and
approved October sixth, nineteen hundred sixteen, or any act amendatory
thereof, or supplemental thereto, such certificate may be executed by such
alien property custodian or such person as the president may appoint to
give full acquittance and discharge for money or property belonging to
an enemy or ally of an enemy which may be conveyed, assigned, delivered
or transferred to said alien property custodian, with like effect as if
the same had been executed by the mortgagee, his personal representative
or assignee. Such certificate may be recorded, and such certificate, the
record thereof and a certified copy of such record may be introduced in
evidence in all courts of this state.
2. (a) The recording officer shall record and file such certificate
or certificates together with the certificates of acknowledgment or proof,
and shall note on the record of the mortgage the book and page containing
such record of such certificate or certificates or the serial number of
such record in the minute of the discharge of such mortgage, made by the
officer upon the record thereof. The provisions of this paragraph shall
not apply to the county of Suffolk, if the block method of index is in
use, or a separate index of satisfactions recorded is maintained.
(b) The recording officer shall also record every other instrument
relating to a mortgage which is presented to him, acknowledged or proved
in like manner as to entitle a conveyance to be recorded, including certificates
purporting to discharge a mortgage or an interest therein which are signed
by persons other than those specified in the first subdivision of this
section, and also including, but not limited to, assignments, releases,
partial discharges, reductions, estoppel certificates, extensions, discharges
of partial interest and partial discharges of partial interest, regardless
by whom any such instrument has been executed. When any such instrument
has been recorded, the recording officer, except in counties where the
block method of indexing is in use, or in Suffolk county, if a separate
index of said instruments is maintained, shall enter a minute upon the
record of the mortgage to which such instrument relates, indicating the
nature of such instrument and the book and page where it has been recorded
or the serial number of such record.
3. Every certificate presented to the recording officer shall
be executed and acknowledged or proved in like manner as to entitle a conveyance
to be recorded. If the mortgage has been assigned, in whole or in part,
the certificate shall set forth the date of each assignment in the chain
of title of the person or persons signing the certificate, the names of
the assignor and assignee, the interest assigned, and, if the assignment
has been recorded, the book and page where it has been recorded or the
serial number of such record; or if the assignment is being recorded simultaneously
with the certificate of discharge, the certificate of discharge shall so
state. If the mortgage has not been assigned of record, the certificate
shall so state.
No certificate presented to the recording officer shall purport
to discharge more than one mortgage, except that one certificate may purport
to discharge two or more mortgages where the certificate states that one
of such mortgages corrects, perfects or modifies the other mortgage or
mortgages, or spreads the lien of the other mortgage or mortgages over
the property subject to the lien of such mortgage, or consolidates the
lien of the other mortgage or mortgages with the lien of such mortgage
to constitute a single lien, or where the certificate states that the liens
of the mortgages which the certificate purports to discharge have been
so spread or so consolidated by a separate instrument and such instrument
has been recorded; provided that in such case the certificate of discharge
shall identify and describe each mortgage which it purports to discharge,
in a separate paragraph, in the same manner and with the same particularity,
and setting forth the same information with respect to assignments thereof,
as would be required for a separate certificate discharging that mortgage,
and shall also state, in a separate paragraph for each instrument, the
date of any such separate instrument by which the liens of the mortgages
have been spread or consolidated, the names of the parties thereto, and
the book and page where it has been recorded or the serial number of such
record. In any such case, except where otherwise expressly provided by
law, the fee or fees which the recording officer is entitled to receive
for filing and entering a certificate of discharge of a mortgage and examining
assignments of such mortgage shall be payable with respect to each mortgage
which the certificate purports to discharge, to the same extent as if a
separate certificate of discharge had been filed for such mortgage.
4. After the record of the mortgage has been marked with
the word "discharged," the recording officer shall make and deliver to
any person tendering the lawful fees therefor, his certificate setting
forth the names of the mortgagor and the mortgagee, the book and page at
which, the date when such mortgage was recorded, and the date on which
the record of such mortgage was so marked, except in a county where recording
is done by microphotography or photostating in the manner permitted by
law, in which case, after microphotography or photostating, such certificate
of discharge and the certificates of its acknowledgment or proof shall,
in lieu of filing as provided in paragraph (a) of subdivision two of this
section, be returned to the party leaving same for record.
5. The term "personal representative" as used in this section
shall include the following:
(a) An executor, administrator or voluntary administrator
or one of two or more executors, administrators or voluntary administrators,
whether domestic or foreign, including the public administrator, and an
ancillary administrator appointed in this state. A certificate executed
by any such personal representative shall recite the name of the court
and the venue of the proceedings in which his letters testamentary or of
administration were issued.
(b) All of the distributees of a person dying intestate for
whom no administrator shall have been appointed, provided that two years
shall have elapsed since the date of death of such intestate. A certificate
executed by such distributees shall recite the date of death of the intestate,
his place of residence at the time of death, the fact that he died intestate,
that no administrator has been appointed and that they constitute all the
distributees of the intestate.
6. The provisions of this section authorizing the recording
officer to mark on the record of a mortgage the word "discharged" shall
not be deemed to enlarge, diminish or alter the legal effect which a certificate
executed by any person or persons, or any payment made by the mortgagor
or other transaction with respect to the mortgage or the mortgage debt,
would otherwise have upon the rights of the mortgagor or of any person
claiming a right or interest in the mortgage, the mortgage debt or the
property subject to the mortgage.
7. In a county in which recording is accomplished by microfilm
process and in which a block index of mortgages is also maintained it will
not be necessary to mark the record of the mortgage "discharged", but it
will be deemed sufficient compliance with this section if there is entered
upon the block index of such mortgage the date of filing and the serial
number of the certificate effecting the discharge.
7-a. If in any county, recording is accomplished by microfilm
process and a separate index for satisfactions recorded is maintained or
in which a block index of mortgages is also maintained it will not be necessary
to mark the record of the mortgage "discharged", but it will be deemed
sufficient compliance with this section if there is entered upon the index
of such mortgage the date of filing and the serial number of the certificate
effecting the discharge.
8. Certificates of discharge of mortgage and certificates
of their acknowledgment or proof heretofore or hereafter recorded and filed,
may be returned personally or by mail to the party leaving same for record
or destroyed after microfilming or photostating where proper indices are
maintained.