N.Y. Real Property Actions and Proceedings Law § 1921 : Real Property Actions And Proceedings — Discharge Or Extinguishment Of Encumbrances, Claims And Interests — Discharge of mortgage

  • Date:

Current through 2016 New York Laws, Chapters 1 to 237

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 situate 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 thirty 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. Failure by a mortgagee to present a certificate of discharge for recording shall result in the mortgagee being liable to the mortgagor in the amount of five hundred dollars if he or she fails to present such certificate within thirty days, shall result in the mortgagee being liable to the mortgagor in the amount of one thousand dollars if he or she fails to present a certificate of discharge for recording within sixty days or shall result in the mortgagee being liable to the mortgagor in the amount of one thousand five hundred dollars if he or she fails to present a certificate of discharge for recording within ninety days. For the purposes of such liability under this subdivision, the term "mortgagee" shall not include a person, partnership, association, corporation or other entity which makes less than five mortgage loans in any calendar year. 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 subdivi- sion.
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 show 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.
N.Y. Real Prop. Acts. Law § 1921
SECTIONS