Partial Release of Property From Mortgage by Individual Holder
Assignments Generally: Lenders, or
holders of mortgages or deeds of trust, often assign mortgages or deeds
of trust to other lenders, or third parties. When this is done the
assignee (person who received the assignment) steps into the place of the
original lender or assignor. To effectuate an assignment, the general
rules is that the assignment must be in proper written format and recorded
to provide notice of the assignment.
Satisfactions Generally: Once a mortgage
or deed of trust is paid, the holder of the mortgage is required to satisfy
the mortgage or deed of trust of record to show that the mortgage or deed
of trust is no longer a lien on the property. The general rule is that
the satisfaction must be in proper written format and recorded to provide
notice of the satisfaction. If the lender fails to record a satisfaction
within set time limits, the lender may be responsible for damages set by
statute for failure to timely cancel the lien. Depending on your state,
a satisfaction may be called a Satisfaction, Cancellation, or Reconveyance.
Some states still recognize marginal satisfaction but this is slowly being
phased out. A marginal satisfaction is where the holder of the mortgage
physically goes to the recording office and enters a satisfaction on the
face of the the recorded mortgage, which is attested by the clerk.
Kansas Law
Execution of Assignment or Satisfaction: Must
be signed by the mortgagee.
Assignment: An assignment must be in writing
and recorded.
Demand to Satisfy: Upon full payoff, mortgagor
may make written demand by certified or registered mail requesting mortgagee
to record satisfaction of mortgage, whereupon mortgagee has 20 days to
comply or face liability.
Recording Satisfaction: Any mortgage of
real property that has been or may hereafter be recorded shall be assigned
or discharged by an instrument acknowledging the assignment or satisfaction
of such mortgage, signed by the mortgagee, and duly acknowledged and certified
as other instruments affecting real estate.
Marginal Satisfaction: Not allowed- satisfaction
must be by separate instrument.
Penalty: If mortgagee fails to have mortgage
satisfied of record within 20 days of receipt of demand therefore, mortgagee
shall be liable in damages to the person for whom the demand was made in
the sum of $500, together with a reasonable attorney's fee for preparing
and prosecuting the action. The plaintiff in such action may recover any
additional damages that the evidence in the case warrants.
Acknowledgment: An assignment or satisfaction
must contain a proper Kansas acknowledgment, or other acknowledgment approved
by statute.
Kansas Statutes
58-2306. Discharge or assignment of recorded mortgage;
procedure.
(a) Except as otherwise provided by this section, any mortgage
of real property that has been or may hereafter be recorded shall be assigned
or discharged by an instrument acknowledging the assignment or satisfaction
of such mortgage, signed by the mortgagee or such mortgagee's duly
authorized attorney in fact, assignee of record, personal representative
or by the lender or a designated closing agent acting as a closing agent
in the sale, financing or refinancing of the real estate subject to such
mortgage who has caused the indebtedness to be paid in full upon compliance
with K.S.A. 58-2309a, and amendments thereto, and duly acknowledged and
certified as other instruments affecting real estate. Such instrument shall
contain the name of the mortgagor and mortgagee, a legal description of
the property and the volume and page in which the mortgage is recorded.
(b) Where the mortgagee or assignee of record is deceased,
and where the estate of such deceased mortgagee or assignee of record is
in process of administration, in this or any other state, an assignment
or a full release of such mortgage may be made by the executor or administrator
without any showing as to the provisions of the will of the deceased, but
there must accompany such assignment or release, as a part thereof, a certificate
from a court of competent jurisdiction appointing such executor or administrator,
under the hand of its proper officer, and attested by its seal, certifying
as to such appointment, and that such executor or administrator is, at
the date of such assignment or release, still so acting under the authority
of such court. Such certificate shall not be required when the executor
or administrator is acting under appointment of the district court of the
county where the real estate mortgaged is located. Where the estate of
such deceased has not been administered upon, or where the estate of such
deceased has been administered and settled and the executor or administrator
discharged, such assignment or release may be made by the heirs at law
or legatee of such deceased mortgagee or assignee, and competent evidence
must be furnished by them of the fact.
(c) Where the mortgagee or assignee of record is a firm
or partnership, such mortgage shall be assigned or discharged by an instrument
acknowledging the assignment or satisfaction of such mortgage as hereinbefore
provided. Such instrument shall be signed either by each member of the
firm or partnership, or by the firm or partnership, or by the firm or partnership
by one of the members thereof.
(d) Any mortgage which, prior to July 1, 1977, has been
released by a notation on the original mortgage instrument and signed by
the mortgagee or the mortgagee's duly authorized attorney in fact, assignee
of record or personal representative may be recorded in the office of the
register of deeds of the county where the mortgaged property is located.
When recorded, such release shall have the same force and effect as mortgages
discharged in accordance with subsection (a).
58-2308. Discharge or assignment of mortgage
to be recorded at length. Every such instrument, and the proof or acknowledgment
thereof, shall be recorded at full length by the register of deeds, and
a reference shall be made to the book and page containing such record or
to the microphotograph number in the general or numerical indexes under
the notation that such mortgage has been assigned or satisfied.
58-2309a. Entry of satisfaction of mortgage; duties
and liability of mortgagee or assignee of mortgage; entry of satisfaction
of mortgage by lender or closing agent, when.
(a) When the indebtedness secured by a recorded
mortgage is paid and there is no agreement for the making of future advances
to be secured by the mortgage, the mortgagee or the mortgagee's assignee
shall enter satisfaction or cause satisfaction of such mortgage to be entered
of record forthwith, paying the required fee. In the event the mortgagee
or the mortgagee's assignee fails to enter satisfaction or cause satisfaction
of such mortgage to be entered within 20 days after written demand by certified
or registered mail, the lender or a designated closing agent acting
as a closing agent in the sale, financing or refinancing of the real estate
subject to such mortgage, who upon reliance of written payoff information
provided by the mortgagee, and which payoff information shall be deemed
as the correct and full amount due and owing under such mortgage, has caused
the indebtedness to be paid in full may cause satisfaction of the mortgage
to be entered. If in fact the mortgagee or mortgagee's assignee was not
paid in accordance with the aforesaid payoff information when the mortgage
was released the lender or the closing agent in the sale, financing or
refinancing of the real estate subject to such mortgage who signed the
false release shall be liable in damages to the mortgagee or mortgagee's
assignee for the entire indebtedness together with interest thereon, attorney
fees, and any additional damages that the mortgagee or mortgagee's assignee
has incurred. Upon recording of such satisfaction by the lender or closing
agent in the sale, financing or refinancing of the real estate subject
to such mortgage, who has caused the indebtedness to be paid in full, such
mortgage shall be deemed fully released as if discharged by the mortgagee
or mortgagee's assignee.
(b) When a mortgage is recorded covering real
estate in which the mortgagor has no interest, the mortgagee or the mortgagee's
assignee shall enter satisfaction or cause satisfaction of such mortgage
to be entered of record, paying the required fee without charge to the
mortgagor or the mortgagor's assigns.
(c) A mortgagor, a mortgagor's heirs or assigns
or anyone acting for such mortgagor, heirs or assigns, or the owner of
real estate upon which a mortgage has been recorded by someone having no
interest in the real estate, may make demand upon a mortgagee or assignee
of a mortgagee for the entering of satisfaction of the mortgage, as provided
for in subsections (a) and (b).
(d) Any mortgagee or assignee of a mortgagee who
refuses or neglects to enter satisfaction of such mortgage within 20 days
after demand has been made as provided in subsection (c) shall be liable
in damages to the person for whom the demand was made in the sum of $500,
together with a reasonable attorney's fee for preparing and prosecuting
the action. The plaintiff in such action may recover any additional damages
that the evidence in the case warrants. Civil actions may be brought under
this act before any court of competent jurisdiction, and attachments may
be had as in other cases.
(e) The mortgagee or assignee of a mortgagee entering
satisfaction or causing to be entered satisfaction of a mortgage under
the provisions of subsection (a) shall furnish to the office of the register
of deeds the full name and last known post office address of the mortgagor
or the mortgagor's assignee. The register of deeds shall forward such information
to the county clerk who shall make any necessary changes in address records
for mailing tax statements.
58-2318. Execution of assignments and releases
of mortgages by corporations. All assignments and releases of mortgages
by a corporation shall be valid when executed by the president, vice-president,
secretary, cashier, treasurer or any other officer of such corporation
so authorized by corporate resolution. Any assignment or release of a mortgage
by a corporation which was executed on or after March 8, 1974, and prior
to the effective date of this act, by one of the corporate officers designated
herein, with or without attestation by the corporate seal, is hereby declared
to be a legal and valid act of such corporation.
