How do I get proof that my mortgage was satisfied years ago?
Full Question:
What happens if your mortgage debt is satisfied (lost mortgage) and another company says they are owners of the debt several years later? What are my rights?
04/21/2009 |
Category: Real Property ยป Mortgage Sat... |
State: Georgia |
#16074
Answer:
A person may be removed from a mortgage by payment in full of the mortgage (satisfaction), assumption of the mortgage payments by another person and release of the original mortgagor, release of you from the mortgage by the mortgage company and possibly other methods. A release of one mortgagor before the debt is fully paid is not commonly done by mortgage holders, but is done under certain circumstances.
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.
The following is are SC statutes:
§ 29-3-310. Request for entry of satisfaction.
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.
§ 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.
§ 29-3-330. Methods of entering satisfaction; affidavit.
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. The affidavit
referred to in this item (e) shall be as follows:
"STATE OF SOUTH CAROLINA MORTGAGE LIEN
COUNTY OF __________ SATISFACTION AFFIDAVIT
PURSUANT TO SECTION 29-3-330
OF SC CODE OF LAWS
FOR BOOK ____ PAGE _____
The undersigned on oath, being first duly sworn, hereby certifies as
follows:
1. The undersigned is a licensed attorney admitted to practice in the
State of South Carolina.
2. That with respect to the mortgage given by __________________ to
______________________ dated _______ and recorded in the offices of
the Register of Deeds in book _________ at page ________:
a. [ ] That the undersigned was given written payoff information
and made such payoff and is in possession of a canceled check
or other evidence of payment to the mortgagee, holder of
record, or representative servicer;
b. [ ] That the undersigned was given written payoff information
and made such pay off by wire transfer or other electronic
means to the mortgagee, holder of record, or representative
servicer and has confirmation from the undersigned's bank of
the transfer to the account provided by the mortgagee, holder
of record, or representative servicer.
Under penalties of perjury, I declare that I have examined
this affidavit this ___ day of ____ and, to the best of my knowledge
and belief, it is true, correct, and complete.
_________________________ ______________________________
(Witness) (Signature)
_________________________ ______________________________
(Witness) (Name-Please Print)
______________________________
(Attorney's S.C. Bar number)
SUBSCRIBED AND SWORN TO __________ before me this __________
(Street Address) day of ______________________________.
______________________________
(City, State, Zip Code)
_________________________ ______________________________
(Notary Public) (Telephone)
My commission expires: __________"
Upon presentation to the office of the Register of Deeds the
Register is directed to record pursuant to Section 29-3-330(e)
and mark the mortgage satisfied of record.
§ 29-3-360. Application for rule to show cause why satisfaction must not
be entered.
Any person who is indebted by mortgage on real estate may apply to
the presiding judge or any court of general sessions and common pleas
to be held in the county in which the mortgage on real estate is
recorded for a rule to show cause why satisfaction must not be entered
thereon.
§ 29-3-370. Proceedings where rule to show cause issues.
Such judge shall grant such rule, returnable on a day to be fixed by
him. The rule shall be served on the mortgagee, his legal representative
or assignee or the attorney of any thereof, and if the party so served
shall not attend to show cause or, attending, shall show insufficient
cause and the judge shall be satisfied that the mortgage has been fully
paid he shall order the proper officer to enter satisfaction on the
mortgage.
§ 29-3-390. Alternative procedure for rule to show cause against
satisfaction.
When the debt or any other obligation secured by any mortgage on real
estate has been fully paid, released, satisfied, discharged, or
extinguished or when the lien of any mortgage on real estate has been
released, discharged, or extinguished and for any reason the mortgage or
the record of the mortgage in the office of the register of deeds or
clerk of court has not been satisfied and cancelled, the mortgagor or his
legal representatives may, upon a verified petition against the
mortgagee, his legal representatives, assignees, pledgees of record, and
any other person having any right, title, or interest in or lien upon the
mortgage, reciting the facts and circumstances in relation to the
mortgage and the satisfaction, release, discharge, or extinguishment of
the debt or obligation secured thereby or of the lien thereof, apply to
the court of common pleas or any judge of the Court of Common Pleas in
open court or at chambers for a rule to show cause why an order should not
be granted directing that the mortgage or record of the mortgage be
satisfied and cancelled of record.
§ 29-3-440. Persons on whom satisfaction by order of court is binding.
Such satisfaction and cancellation of the mortgage or release of
the lien thereof shall be effectual and binding upon the parties so
served with the petition and rule and upon every assignee or pledgee of
every parol or written assignment, pledge or hypothecation of such
mortgage not named in and served with the petition and rule unless such
pledge, hypothecation or assignment is duly recorded in the proper
office at or before the time of the filing of the petition or the
petitioner has actual notice or knowledge thereof.
