2006 Massachusetts Code - Section 54C. Discharge of mortgage and release of lien; conditions ofdischarge where discharge is not executed by holder of record.

[ Text of section effective until October 1, 2006. For text effective October 1, 2006, see below.]

  Section 54C. The recordation of a discharge duly executed and acknowledged by a mortgagee, mortgage holder, mortgage servicer or note holder shall constitute a discharge of the mortgage and a release of the lien created by such mortgage on the mortgaged premises; provided, however, that a discharge executed by a mortgage servicer or note holder who is not the holder of record of such mortgage deed will operate as a discharge and release of lien as aforesaid only as to a federally related mortgage securing a one-to-four family residence and only where such a discharge is accompanied by the following:

  (A) In the case of a mortgage servicer:

  (1) an original or photostatic copy of the servicing agreement, power of attorney or other document evidencing the authority of the mortgage servicer to service the mortgage, which shall be duly recorded and referenced on said discharge. Such copy shall contain a certification by the mortgagee, mortgage holder or mortgage servicer that it is a true copy of the original document.

  (2) In the absence of such documents, said discharge may be effected by the recording of:--

  (i)(a) an affidavit executed under the pains and penalties of perjury by the mortgagor affirming the inability to obtain any of said documents, the payments made and the reasons why such payments were made to such mortgage servicer, and attaching thereto evidence of such payments in the form of cancelled checks or otherwise, or,

  (b) in the event the mortgagor is no longer the record owner of the premises and cannot be located, an affidavit executed under the pains and penalties of perjury by an owner of record for more than three years other than the mortgagor, who purchased the premises subsequent to the recording of the mortgage, and whose recorded deed made no reference to the mortgage remaining outstanding, stating as follows: that said owner purchased the premises in good faith and for value in the belief that the premises were not encumbered by the mortgage; that said owner has not made any payments on account of the mortgage; and that no claims have been made under the mortgage subsequent to said purchase against said owner, and

  (ii) an affidavit executed by the attorney who, pursuant to a payoff statement from said mortgage servicer, transmitted funds to said mortgage servicer sufficient to satisfy in full the outstanding balance of the loan secured by such mortgage, affirming the inability to obtain any of said documents despite sending a demand by registered or certified mail to the servicer and the holder of record at their last known addresses at least thirty days prior, the payment in full of said outstanding balance of the mortgage loan, and the acceptance thereof by said mortgage servicer. Evidence of such acceptance in the form of a cancelled check or otherwise shall be attached to said affidavit.

  (B) In the case of a note holder who is not the holder of record of the mortgage deed: an original or photostatic copy of the note, with the endorsements thereon evidencing the transfer of ownership of such note to said holder, shall be duly recorded with or referenced in such discharge. Such copy shall contain a certificate by the note holder that it is a true copy of the original document.

  The provisions of this section shall apply to discharges executed on and after the effective date of this act relative to mortgages recorded prior to, on and after said effective date.

Chapter 183: Section 54C. Recordation of discharge; effect; discharge by mortgage servicer or note holder who is not holder of record

[ Text of section as amended by 2006, 63, Sec. 3 effective October 1, 2006 applicable as provided by 2006, 63, Sec. 8. See 2006, 63, Sec. 9. For text effective until October 1, 2006, see above.]

  Section 54C. (a) The recordation of a duly executed and acknowledged or proven discharge by a mortgagee, mortgage servicer or note holder shall constitute a discharge of the mortgage and a release of the lien created by the mortgage on the mortgaged premises; provided, however, that a discharge executed by a mortgage servicer or note holder who is not the holder of record of such mortgage, but which discharge is not accompanied by the supporting documents required in subsection (b) of section 55 will operate as a discharge and release of lien as aforesaid only as to a mortgage encumbering a 1-to-4-family residential property and only where the discharge is accompanied or supplemented by the following:

  (1) In the case of a mortgage servicer, an original or photostatic copy of the servicing agreement, power of attorney, servicing notice letter to the borrowers, written payoff statement issued to a mortgagor, closing attorney or settlement agent, including a payoff statement issued by facsimile or other electronic transmission, or other document evidencing the authority of the mortgage servicer to service the mortgage, which, if not already of record before the recording of the discharge, shall be duly recorded together with the discharge, or recorded after the discharge but attached to an affidavit pursuant to section 5B, which affidavit shall contain the recording information for the mortgage that is the subject of the discharge as well as for the discharge itself and which shall be indexed under the name of the mortgagors named in the mortgage and discharge. If the authority document contemplated by this section is a copy rather than an original, it shall contain or be accompanied by a certification by the mortgagee, mortgage servicer or note holder that it is a true copy of the original document or a certification by an attorney licensed to practice law in the commonwealth, who has seen an original of the document, that it is a true copy of the document. For purposes of this section, an original printout of a facsimile or other electronic transmission addressed to an attorney licensed to practice law in the commonwealth, or to the attorney's law firm, shall constitute an original document and may be recorded if certified by the attorney to be an original printout or, if a photostatic copy of the printout, it is certified by said attorney, either on the copy or in an accompanying affidavit, that it is a true copy of the original printout.

  (2) In the case of a note holder who is not the holder of record of the mortgage, an original or photostatic copy of the note, with the endorsements thereon evidencing the transfer of ownership of the note to the holder, shall be duly recorded as an exhibit to the discharge or, if recorded after the discharge, the note shall be recorded as provided in subsection (h) of section 55 and marginally referenced to the discharge. If a copy of the note is recorded, the copy shall contain or be accompanied by a certificate duly executed and acknowledged by the note holder, that it is a true copy of the original document or be accompanied by an affidavit by an attorney at law licensed to practice in the commonwealth that the attorney has seen the original note with the endorsements thereon and the copy being recorded is a true copy thereof.

  (3) In the absence of the supporting documents referred to in paragraphs (1) and (2), said discharge may be effected by the recording of:

  (i)(A) an affidavit executed under the penalties of perjury by any mortgagor affirming the inability to obtain any of the documents, the payments made and the reasons why the payments were made to such mortgage servicer or note holder, and attaching thereto evidence of the payments in the form of 1 or more billing statements, a written payment history, annual principal and interest payment statement or other written acknowledgment of payment from the servicer or note holder; or

  (B) in the event the mortgagor is no longer the record owner of the premises and cannot be located, an affidavit executed under the penalties of perjury by an owner of record for more than 1 year, other than the mortgagor, who purchased the premises subsequent to the recording of the mortgage, and whose recorded deed made no reference to the mortgage remaining outstanding, stating that the owner purchased the premises in good faith and for value in the belief that the premises were not encumbered by the mortgage; that the owner has not made any payments on account of the mortgage; and that no claims have been made against the owner under the mortgage subsequent to the purchase, and

  (ii) an affidavit executed by an attorney licensed to practice law in the commonwealth who, pursuant to a payoff statement from the mortgage servicer or note holder, transmitted funds to the mortgage servicer or note holder sufficient to satisfy in full the outstanding balance of the loan secured by the mortgage or who has ascertained that the payment was made pursuant to a written payoff statement issued to another closing attorney or settlement agent, which affidavit shall certify that:

  (A) neither the documents referred to in paragraphs (1) or (2) nor a confirmatory discharge duly executed and acknowledged by the mortgagee have been received, despite a written demand therefor sent by registered or certified mail to the servicer or note holder and the mortgagee at their last known addresses at least 30 days before the date of the affidavit;

  (B) the written demand described the circumstances under which the payment in full of the outstanding balance of the mortgage loan in accordance with the payoff statement occurred and provided copies of any documentary evidence thereof; and

  (C) the written demand informed the servicer or note holder and the mortgagee that, absent objection received in writing by certified mail within 30 days after the postmark date of the written demand, the affidavits authorized by this subsection will be recorded and will conclusively discharge the mortgage; and

  (D) no written objection was received by the affiant within 30 days after the postmark date.

  (b) If a document authorized or required to be recorded pursuant to this section contains any personal identifier numbers, such as social security or tax identification numbers, or any financial account numbers, such as checking, savings or investment account numbers, the numbers may be whited out, blackened out or otherwise obliterated so as to become illegible and the document shall be entitled nonetheless to recording, so long as the obliteration does not appear to substantially alter or change the content, tenor or nature of the document.