Partial Release of Property From Mortgage by Individual Holder
Assignment and Satisfaction
of Mortgages
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.
Ohio Law
Execution of Assignment or Satisfaction:
An assignment or satisfaction must be signed by the mortgagee or authorized
representative.
Assignment:
An assignment must be in writing and recorded. Except in counties in which a separate instrument is
required to assign or partially release a mortgage as described in section
5301.32 of the Revised Code, a mortgage may be assigned or partially released
by the holder of the mortgage, by writing the assignment or partial release
on the original mortgage or upon the margin of the record of the original
mortgage and signing it. This is also allowed by separate instrument, see code
sections 5301.31 and 5301.32, below.
Demand to Satisfy:
Not required.
Recording Satisfaction:
Except in a county in which the county recorder has elected to require that all satisfactions
of mortgages be recorded by separate instrument as allowed under section
5301.28 of the Revised Code, when recording a mortgage, county recorders
shall leave space on the margin of the record for the entry of satisfaction,
and record therein the satisfaction made on the mortgage.
Marginal Satisfaction:
Marginal satisfaction is allowed, unless the specific county requires it to be recorded by separate instrument.
Penalty:
If satisfaction is not recorded within 90 days following the full satisfaction of the mortgage, then the
Mortgagor may recover, in an action at law, the sum of $250, and other
recoverable damages.
Acknowledgment:
An assignment or satisfaction must contain a proper Ohio acknowledgment, or other acknowledgment approved
by Statute.
Ohio Statutes
§ 5301.28 Release of mortgage; assignment.
When the mortgagee of property within this state, or the party to
whom the mortgage has been assigned, either by a separate instrument, or
in writing on such mortgage, or on the margin of the record thereof, which
assignment, if in writing on such mortgage or on the margin of the record
thereof, need not be witnessed or acknowledged, receives payment of any
part of the money due the holder of such mortgage, and secured by the mortgage,
and enters satisfaction or a receipt therefor, either on the mortgage or
its record, such satisfaction or receipt, when entered on such record,
or copied thereon from the original mortgage by the county recorder, will
release the mortgage to the extent of such receipt. In all cases when a
mortgage has been assigned in writing on such mortgage, the recorder must
copy the assignment from the original mortgage upon the margin of the record
of the mortgage before such satisfaction or receipt is entered upon the
record thereof.
In a county in which the county recorder has determined to use the
microfilm process as provided by section 9.01 of the Revised Code, the
recorder may require that all satisfactions of mortgages be made by separate
instrument. The original instrument bearing the proper endorsement may
be used as such separate instrument. Such separate instrument shall be
recorded in the book provided by section 5301.34 of the Revised Code for
the satisfactions of mortgages. The recorder shall charge the fee for such
recording as provided by section 317.32 of the Revised Code for recording
mortgages.
§ 5301.29 Releases of mortgages made valid.
When any release, cancellation, or satisfaction of a mortgage of
real estate has been of record for more than twenty-one years in the office
of the county recorder of the county in which such real estate is situated,
and the record thereof shows that there is a defect in such release, cancellation,
or satisfaction, such release, cancellation, or satisfaction, and the record
thereof shall be cured of such defect, if such defect is due to any of
the following:
(A) It purports to be signed by an agent or attorney of the mortgagee
or a trustee, and no power of attorney or other evidence of authority so
to release, cancel, or satisfy such mortgage is of record.
(B) It was signed by less than all of two or more executors, administrators,
guardians, assignees in insolvency, or trustees.
(C) The record of such release, cancellation, or satisfaction is
not attested by the recorder.
(D) The release, cancellation, or satisfaction by a corporation
is executed by officers thereof without signing the name of the corporation
thereto.
[§ 5301.29.1] § 5301.291 Mortgage release, cancellation,
or satisfaction.
No real estate mortgage release, cancellation, or satisfaction of
record in the office of the county recorder of the county within this state
in which such real estate is situated shall be deemed defective because:
(A) The executor, administrator, guardian, assignee, or trustee
signed it individually instead of in his representative or official capacity.
(B) The release, cancellation, or satisfaction is by separate instrument,
and the certificate of acknowledgment is not on the same sheet of paper
as the release, cancellation, or satisfaction.
(C) A satisfaction was not recorded within ninety days as required
by division (B) of section 5301.36 of the Revised Code.
§ 5301.31 Recording of assignment or partial release in
margin of original record.
Except in counties in which a separate instrument is required to
assign or partially release a mortgage as described in section 5301.32
of the Revised Code, a mortgage may be assigned or partially released by
the holder of the mortgage, by writing the assignment or partial release
on the original mortgage or upon the margin of the record of the original
mortgage and signing it. The assignment or partial release need not be
acknowledged or witnessed, but, if it is written upon the margin of the
record of the original mortgage, the signing shall be attested by the county
recorder. The assignment, whether it is upon the original mortgage, upon
the margin of the record of the original mortgage, or by separate instrument,
shall transfer not only the lien of the mortgage but also all interest
in the land described in the mortgage. An assignment of a mortgage shall
contain the then current mailing address of the assignee. The signature
of a person on the assignment or partial release may be a facsimile of
that person's signature. A facsimile of a signature on an assignment or
partial release is equivalent to and constitutes the written signature
of the person for all requirements regarding mortgage assignments or partial
releases. For entering an assignment or partial release of a mortgage upon
the margin of the record of the original mortgage or for attesting it,
the recorder shall be entitled to the fee provided by section 317.32 of
the Revised Code for recording the assignment and satisfaction of mortgages.
§ 5301.32 Assignment or partial release by separate instrument.
A mortgage may be assigned or partially released by a separate instrument
of assignment or partial release, acknowledged and witnessed as provided
by section 5301.01 of the Revised Code. The separate instrument of assignment
or partial release shall be recorded in the book provided by section 5301.34
of the Revised Code for the recording of satisfactions of mortgages, and
the county recorder shall be entitled to charge the fee for that recording
as provided by section 317.32 of the Revised Code for recording deeds.
The signature of a person on the assignment or partial release may be a
facsimile of that person's signature. A facsimile of a signature on an
assignment or partial release is equivalent to and constitutes the written
signature of the person for all requirements regarding mortgage assignments
or partial releases.
In a county in which the recorder has determined to use the microfilm
process as provided by section 9.01 of the Revised Code, the recorder may
require that all assignments and partial releases of mortgages be by separate
instruments. The original instrument bearing the proper endorsement may
be used as the separate instrument. An assignment of a mortgage shall contain
the then current mailing address of the assignee.
§ 5301.34 Release of mortgage on certificate of mortgagee
or assignee.
A mortgage must be discharged upon the record thereof by the county
recorder when there is presented to him a certificate executed by the mortgagee
or his assigns, acknowledged and witnessed as provided in section 5301.01
of the Revised Code, or when there is presented to him a deed of release
executed by the governor as provided in section 5301.19 of the Revised
Code, certifying that the mortgage has been fully paid and satisfied. In
addition to the discharge on the records by the recorder, such certificate
shall be recorded in a book kept for that purpose by the recorder. Such
recorder is entitled to the fees for such recording as provided by section
317.32 of the Revised Code for recording deeds.
§ 5301.36 Entry of satisfaction.
(A) Except in a county in which the county recorder has elected
to require that all satisfactions of mortgages be recorded by separate
instrument as allowed under section 5301.28 of the Revised Code, when recording
a mortgage, county recorders shall leave space on the margin of the record
for the entry of satisfaction, and record therein the satisfaction made
on the mortgage, or permit the owner of the claim secured by the mortgage
to enter such satisfaction. Such record shall have the same effect as the
record of a release of the mortgage.
(B) Within ninety days from the date of the satisfaction
of a residential mortgage, the mortgagee shall record the fact of the satisfaction
in the appropriate county recorder's office and pay any fees required for
the recording. The mortgagee may, by contract with the mortgagor, recover
the cost of the fees required for the recording of the satisfaction by
the county recorder.
(C) If the mortgagee fails to comply with division (B) of this section,
the mortgagor may recover, in a civil action, damages of two hundred
fifty dollars. This division does not preclude or affect any other legal
remedies that may be available to the mortgagor.
(D) As used in this section, "residential mortgage" means an obligation
to pay a sum of money evidenced by a note and secured by a lien upon real
property located within this state containing two or fewer residential
units or on which two or fewer residential units are to be constructed
and shall include such an obligation on a residential condominium or cooperative
unit.
