2006 New York Code - Discharge Of Mortgage.

 
    §  1921.  Discharge  of  mortgage.  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.