Partial Release of Property From Deed of Trust for Individual
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.
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.
West Virginia Law
An assignment must be in writing and recorded.
Demand to Satisfy:
Though 38-12-10 mentions a "request," 38-12-1 commands the creditor to execute and furnish a release
to the debtor within 30 days of full payoff. It is recommended that the
creditor comply with 38-12-1.
When satisfaction has been signed and acknowledged, it may be presented for record to the
clerk in whose office the lien thereby intended to be released is recorded
If a creditor fails to timely furnish a release to the debtor, the creditor becomes liable for court costs and attorney
An assignment or satisfaction must contain a proper West Virginia acknowledgment, or other acknowledgment
approved by Statute.
West Virginia Statutes
38-12-1. When release of lien required; requisites thereof.
(a) Every person entitled to the benefit of any lien on any
estate, real or personal, or to the money secured thereby, whether the
lien was created by conveyance, judgment, decree, lis pendens, notice of
attachment, deed of trust, contract or otherwise, shall be required
to furnish and execute an apt and proper written release thereof free of
charge to the debtor whose obligation secured by such lien has been
fully paid and satisfied, if the lien is of record in the proper county.
Such release shall be executed and furnished to the debtor within thirty days
after the debt has been satisfied.
(b) Such release of lien shall be executed by the lienholder
and acknowledged before the clerk of the county commission in whose office
the lien is recorded or before such other person authorized to take acknowledgments
of deeds. Such written release shall be deemed sufficient if it describes
the lien to be released by any words that will identify and show an intent
to discharge the same. Releases may also be made according to the provisions
of section two [§ 38-12-2] of this article.
38-12-2. When trustee may release lien of deed of trust; effect.
A trustee in a trust deed may release the lien of such trust deed:
(c) When a trust deed creates a
lien to secure more than five creditors, even though such creditors be
named in the trust deed;
(d) When a trust deed creates a
lien to secure notes or bonds or other instruments payable to bearer.
A release executed by the trustee in any of the
cases mentioned herein, and properly recorded, shall, as to purchasers
for value without notice, be valid and binding, whether the debt secured
by such lien had in fact been paid or discharged or not.
38-12-5. Partial or limited release.
In case of a discharge of only a part of the
lien debt, or a release of only a part of the property subject to the lien,
or any other partial or limited release, the form of release prescribed
in section four [§ 38-12-4] of this article may be modified to express
the facts and the intention of the parties.
38-12-8. Recordation of release; effect.
When the release has been so signed and acknowledged,
it may be presented for record to the clerk in whose office the lien thereby
intended to be released is recorded or docketed, and from and after the
time the same is so left for record (which time the clerk shall indorse
thereon) such lien shall be discharged and extinguished, and the estate,
of whatever kind, bound or affected thereby, shall be deemed to be vested
in the former owner or those claiming under him, as if such lien had never
38-12-10. Action on refusal of lienholder to execute release.
In case of the failure of the party holding such
lien to furnish and execute an apt and proper release upon request
of the party entitled thereto as required by section one [§ 38-12-1]
of this article, the circuit court having jurisdiction may, on motion,
after reasonable notice to the party so failing, and if no good cause be
shown against it, direct the clerk of the county commission to execute
such release, and it shall thereupon have the effect of releases executed
under section one of this article. The proceedings shall be at the cost
of the lienholder who so refuses without good cause and the court shall
also award reasonable attorney fees and court costs to the person entitled
to such release if such person be the prevailing party.
39-1-2b. Recordation of certified copies of certain instruments.
Except as provided in this section, the clerk
of the county commission of any county shall admit to record in the office
of such clerk a copy of any contract, deed of trust, mortgage, lease, memorandum
of lease, release, assignment, power of attorney or any other instrument
or writing which has been certified by the clerk of the county commission
of any other county of this state as being a true and correct copy and
transcript from the records of said county. Any such recordations prior
to the effective date of this section shall constitute notice with like
effect as if such original instrument had been recorded therein. This section
does not apply to deeds, wills or to any instrument filed in accordance
with chapter forty-six of this code.