2016 North Dakota Century Code Title 35 Liens Chapter 35-03 Mortgage of Real Property
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CHAPTER 35-03
MORTGAGE OF REAL PROPERTY
35-03-01. Mortgage of real property must be in writing - Formalities necessary.
A mortgage of real property can be created, renewed, or extended only by writing, executed
with the formalities required in the case of a grant of real property.
35-03-01.1. Definitions.
1. A mortgage is a contract by which specific real property capable of being transferred is
hypothecated for the performance of an act without requiring a change in possession,
and includes a transfer of an interest in real property, other than a trust, made only to
secure the performance of an act.
2. A power of sale under a mortgage of real property is a trust and can be executed only
in the manner prescribed by the laws of this state governing the foreclosure of
mortgages. Such a power may be conferred by a mortgage upon the mortgagee, or
any other person, to be exercised after a breach of the obligation for which the
mortgage is a security.
35-03-01.2. Nature, extent, and effect of lien - Security not to be impaired.
1. A mortgage is a lien upon everything that would pass by a grant of the property, and
upon nothing more.
2. A mortgage is a lien upon the property mortgaged in the hands of everyone claiming
under the mortgagor subsequently to its execution, except purchasers and
encumbrancers in good faith without notice and for value.
3. Real property held adversely to the mortgagor may be mortgaged, and such a
mortgage takes effect from the time at which the mortgagor or one claiming under the
mortgagor obtains possession of the property and has precedence over every lien
upon the mortgagor's interest in the property created subsequently to the recording of
the mortgage.
4. Title acquired by the mortgagor subsequent to the execution of the mortgage inures to
the mortgagee as security for the debt in like manner as if acquired before the
execution.
5. In the absence of an express covenant, a mortgage does not bind the mortgagor
personally to perform the act for the performance of which it is a security.
6. A mortgage does not entitle the mortgagee to the possession of the property, but after
the execution of a mortgage, the mortgagor may agree to the change of possession
without a new consideration.
7. The assignment of a debt secured by a mortgage carries the security with it.
8. No person whose interest is subject to the lien of a mortgage may do any act which
will substantially impair the mortgagee's security.
35-03-01.3. Mortgages insured or guaranteed by the United States veterans'
administration - Notice.
The following statement must be signed at the time of the loan application by both the
borrower and lender on loans that are insured or guaranteed by the United States veterans'
administration:
I understand that the veterans' administration may attempt to hold me liable for the
guarantee it offers the lending institution on this mortgage. I understand that it may be
alleged that I may remain liable for the amount guaranteed by the veterans' administration if
this mortgage is foreclosed or if the property is sold by me without first obtaining an
approved release of liability from the veterans' administration. I also understand that it may
be alleged that North Dakota law governing deficiency judgments may not apply to the
collection of loans guaranteed by the veterans' administration. By signing this statement, I
am indicating that the contents of this statement have been explained to me by a loan
officer representing the lending institution offering this mortgage loan.
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35-03-02. Acknowledgment, certification, and recordation.
Mortgages of real property may be acknowledged or proved, certified, and recorded in like
manner and with like effect as grants of real property.
35-03-03. Power of attorney to execute mortgages - Requisites.
A power of attorney to execute a mortgage must be in writing subscribed, acknowledged or
proved, certified, and recorded in like manner as powers of attorney for grants of real property.
35-03-04. Prerequisites for recordation - Post-office address of mortgagee or
assignee.
The recorder may not record a mortgage of real property unless the mortgage contains the
post-office address of the mortgagee. An assignment of a mortgage on real property which does
not contain the post-office address of the assignee may not be received for record.
35-03-05. Form of real estate mortgage.
A mortgage of real property may be made in substantially the following form:
NORTH DAKOTA STANDARD FORM
THIS INDENTURE, Made this ____________ day of __________ A.D. Two thousand
____________________ between _____________ whose post-office address is _________ of
the county of ______________ and state of North Dakota, part ___________ of the first part,
and ______________ whose post-office address is _______________________ of the county
of ____________ and state of North Dakota, party of the second part:
WITNESSETH, That the said part ____________ of the first part, for and in consideration of
the sum of _____________ dollars to ____________ in hand paid by the said party of the
second part, the receipt whereof is hereby acknowledged, do ____________ by these presents
grant, bargain, sell, and convey to the said party of the second part, _____________ heirs,
executors, administrators, successors, and assigns, forever, all the following described real
estate in the county of ____________ and state of North Dakota, described as follows, to wit:
__________ __________________
_______________________________________________________________________________
TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and
appurtenances thereunto belonging or in anywise appertaining, unto the said party of the
second part, _________________ heirs, executors, administrators, successors, and assigns,
FOREVER. And the said part ____________ of the first part, do _______________ covenant
with the said party of the second part, ____________ heirs, executors, administrators,
successors, and assigns, as follows: That __ he ___ ha ______ good right to convey the same,
that
the
same
are
free
from
all
encumbrances _____________________________________________________________
and that the said party of the second part, __________ heirs, executors, administrators,
successors, and assigns, shall quietly enjoy and possess the same, and that the said part
____________ of the first part will warrant and defend the title to the same against all lawful
claims, hereby relinquishing and conveying all right of homestead, and all contingent claims and
rights whatsoever in and to the said premises.
PROVIDED, NEVERTHELESS, That if the said part ___________ of the first part,
____________ heirs, executors, or administrators, shall well and truly pay, or cause to be paid,
to the said party of the second part, ____________ heirs, executors, administrators,
successors, or assigns, the sum of ______________ dollars and interest according to the
conditions of ____________ note _____________ of even date herewith, as follows:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
payable at the _______________________________________ with interest from date until
maturity, at the rate of _________________ percent, per annum, payable ___________
annually and shall also keep and perform all and singular the covenants and agreements herein
contained, then this deed to be null and void, and the premises hereby conveyed to be released
Page No. 2
at the cost of the said part _____________ of the first part; otherwise to remain in full force and
effect.
And the said part __________ of the first part do ___________ covenant and agree with the
said party of the second part, ___________ heirs, executors, administrators, successors, and
assigns to pay the said sum of money and interest thereon as above specified; to pay as a part
of the debt hereby secured, in case of each or any foreclosure or commencement of foreclosure
of this mortgage, all costs and expenses and statutory attorney's fees in addition to all sums and
costs allowed in that behalf by law; to permit no waste, and to do or permit to be done, to said
premises, nothing that may in any manner impair or weaken the security under this mortgage; to
pay all taxes or assessments that may be assessed against or be a lien on said premises, or
any part thereof, or upon this mortgage or note ____________ or the legal holder thereof,
before the same shall become delinquent; to keep the buildings on said premises insured for
____________ dollars, in companies acceptable, with loss payable to the mortgagee or
__________ assigns; and in case of failure so to pay said taxes or assessments, or any of the
agreements hereunder, or in case there exists any claim, lien, or encumbrance upon said
premises, which is prior to this mortgage, the said party of the second part, ____________
heirs, executors, administrators, successors, or assigns may at ____________ option, pay and
discharge such taxes or other obligation, and the sum or sums of money which may so be paid,
with interest from the time of payment at the same rate as said principal sum, shall be deemed
and are hereby declared to be a part of the debt secured by this mortgage and shall be
immediately due and payable. It is further agreed and understood that this mortgage shall also
cover any renewal note for the above described indebtedness or any portion thereof.
But if default shall be made in the payment of said sum of money, or interest, or the taxes,
or any part thereof, at the time and in the manner hereinbefore or hereinafter specified for the
payment thereof, the said part ____________ of the first part, in such cases do _______ hereby
authorize and fully empower the said party of the second part, _________ heirs, executors,
administrators, successors, or assigns, to sell the said hereby granted premises and convey the
same to the purchaser, in fee simple agreeably to the statute in such case made and provided,
and out of the moneys arising from such sale to retain the principal and interest which shall then
be due on said note ____________, and all taxes upon said lands, together with all costs and
charges, and statutory attorney's fees, and pay the overplus if any to the said part
____________ of the first part, _____________ heirs, executors, administrators, or assigns,
And if default be made by the part ____________ of the first part in any of the foregoing
provisions it shall be lawful for the party of the second part, ____________ heirs, executors,
administrators, successors, or assigns or ____________ attorney to declare the whole sum
above specified to be due.
IN TESTIMONY WHEREOF, The said part ___________ of the first part ha ___ hereunto
set ______ hand ______ the day and year first above written.
Signed and delivered
in presence of
_____________________________
______________________________ _____________________________
______________________________ _____________________________
35-03-05.1. Recording and filing assignment of mortgage - Notice to whom.
An assignment of a mortgage may be recorded or filed in the same manner as a mortgage,
and the record thereof operates as notice to all persons subsequently deriving title to the
mortgage from the assignor. When the mortgage is executed as security for money due or to
become due on a promissory note, bond, or other instrument designated in the mortgage, the
record of the assignment of the mortgage is not of itself notice to a mortgagor or a mortgagor's
heirs or personal representatives so as to invalidate any payment made by them or either of
them to the person holding such note, bond, or other instrument.
35-03-06. Fee for recording mortgage - Standard form not mandatory.
Repealed by S.L. 1953, ch. 113, § 2.
Page No. 3
35-03-07. Record - Notice to whom.
The record of a mortgage duly made operates as notice to all subsequent purchasers and
encumbrancers.
35-03-08. Papers accompanying mortgage or grant must be recorded.
Every grant of real property or of any estate therein which appears by any other writing to
be intended as a mortgage within the meaning of chapter 35-01 must be recorded as a
mortgage. If the grant and other writing explanatory of its true character are not recorded
together at the same time and place, the grantee can derive no benefit from such record.
35-03-09. Defeasance must be recorded - Effect of failure to record.
When a grant of real property purports to be an absolute conveyance but is intended to be
defeasible on the performance of certain conditions, the grant is not defeated or affected as
against subsequent purchasers or encumbrancers in good faith and for value, unless an
instrument of defeasance duly executed and acknowledged is recorded in the office of the
recorder of the county where the property is situated.
35-03-10. Mortgage for purchase price of real property prior to all liens.
A mortgage given for the purchase price of real property at the time of its conveyance has
priority over all other liens created against the purchaser, subject to the operation of the
recording laws.
35-03-11. Certificate of discharge - How recorded.
A certificate of the discharge of a mortgage and proof or acknowledgment of the discharge
must be recorded at length and a reference made in the record to the book and page or
document number where the mortgage is recorded and of the minute of the discharge, made
upon the record of the mortgage, to the book and page or document number where the
discharge is recorded.
35-03-12. Successor or devisee must satisfy mortgage out of that person's property Exception.
Repealed by S.L. 1973, ch. 257, § 82.
35-03-13. Discharge of real estate mortgage not renewed or extended of record.
Repealed by S.L. 1963, ch. 256, § 4.
35-03-14. Expiration of real estate mortgages.
Unless extended as specified in section 35-03-15, the lien created by a mortgage of North
Dakota real estate and all notice from the record thereof expires as to all persons and for all
purposes as follows:
1. If the final maturity date is ascertainable from the record of the mortgage, the lien of
the mortgage expires ten years after that date.
2. If the final maturity date of the mortgage is not ascertainable from the record, the lien
of the mortgage expires ten years after the date the mortgage is filed for record in the
office of the recorder.
Expiration of a mortgage lien under the provisions of this section is equivalent for all
purposes to proper discharge of the mortgage of record, and execution or recordation of a
discharge instrument is not necessary to terminate a mortgage lien which has so expired.
Satisfaction of mortgage in the common form may be recorded at any time.
Expiration of a mortgage lien as provided herein occurs notwithstanding that the right to
foreclose the mortgage has not been or might not be barred by the defense of limitations,
whether tolled by nonresidence, disability, death, part payment, acknowledgment, extension,
new promise, or waiver, and occurs notwithstanding any provisions of the Federal Soldiers' and
Sailors' Civil Relief Act.
Page No. 4
35-03-15. Extension of mortgage - Expiration delayed - Retroactivity.
Expiration of a real estate mortgage lien as provided in section 35-03-14 does not occur if
prior to the date such expiration otherwise would become effective:
1. An action or proceeding to foreclose is timely and properly commenced and the
summons and complaint in such action are duly filed with the clerk of the court having
jurisdiction, and there is duly recorded in the office of the recorder a special notice of
the pendency of such action, or of the pendency of a proceeding to foreclose by
advertisement;
2. There is duly recorded in the office of the recorder the statutory notice of intention to
foreclose with proof of service;
3. A deed in lieu of foreclosure purporting to continue the mortgage lien unmerged in the
fee title is duly recorded in the office of the recorder;
4. Actual possession of the mortgaged property is taken and held by the owner of the
mortgage; or
5. An instrument by or on behalf of an interested party in affidavit form asserting
extension and continuation of the mortgage lien is duly recorded in the office of the
recorder of the county in which the affected mortgaged real estate or some portion
thereof is situated, provided that no such instrument is effective to postpone expiration
of a mortgage lien under this section for more than ten years beyond the date
expiration would have become effective.
The provisions of section 35-03-14 and this section apply to all mortgages, including those
executed or recorded before the effective date of said sections. The provisions of said sections
do not bar any action, preclude foreclosure or enforcement of any lien, or cause any mortgage
lien to expire, until January 1, 1964.
35-03-16. Satisfaction of mortgage - Discharge - Form - Power of attorney.
A recorded mortgage must be discharged upon the record by the recorder having custody of
the mortgage on the presentation of a certificate of discharge signed by the mortgagee, the
mortgagee's executors, administrators, guardians, trustees, assigns, personal representatives,
or special administrators appointed for that purpose, properly acknowledged or proved and
certified as prescribed by chapter 47-19. The certificate of discharge must contain a brief
description of the mortgage and must state that the mortgage has been paid in full or otherwise
satisfied and discharged and that the officer is authorized to discharge the mortgage of record.
Any person executing a certificate of discharge as a personal representative of the mortgagee
first shall file and have recorded in the office of the recorder where the mortgage is recorded a
power of attorney showing the person's authority to discharge mortgages in behalf of the
mortgagee and in the mortgagee's name. The mortgagee shall present the certificate of
discharge to the recorder for recording in the county in which the property is located within thirty
days after the certificate of discharge is signed. The mortgagee may add the amount of the
recording fee to the balance of the debt paid by the mortgagor. A certificate of the satisfaction of
a mortgage may be made in substantially the following form:
This certifies that a certain mortgage executed by ____________ of ____________,
mortgagor, to ____________ of ____________, mortgagee, dated the ____________ day of
____________ in the year __________, upon the ____________ (here describe the property
covered by the mortgage) and recorded in the office of the recorder in and for the county of
____________ and state of North Dakota, in book ____________ of mortgages on page
__________ or as document number __________, is paid and satisfied; and ____________
hereby authorize and require the recorder to discharge the mortgage of record in the recorder's
office.
Witness ____________ hand this ____ day of __________ A.D.
___________________________ (Acknowledgment).
35-03-17. Collateral real estate mortgages.
A mortgage which contains the following statement in printed or typed capital letters: "THE
PARTIES AGREE THAT THIS MORTGAGE CONSTITUTES A COLLATERAL REAL ESTATE
MORTGAGE PURSUANT TO NORTH DAKOTA CENTURY CODE CHAPTER 35-03" is subject
Page No. 5
to the provisions of this section. A mortgage executed pursuant to this section must be entitled
in printed or typed capital letters: "MORTGAGE - COLLATERAL REAL ESTATE MORTGAGE".
A mortgage made pursuant to this section, notwithstanding the fact that from time to time during
the term thereof no indebtedness is due from the mortgagor to the mortgagee, constitutes a
continuing lien against the real property covered thereby for the amount stated in the mortgage.
Any sums not exceeding the face amount of the mortgage, together with interest thereon as
provided in the instrument secured by the mortgage, advanced by the mortgagee during the
term of the mortgage have a lien priority as of the date the mortgage was filed. At any time the
indebtedness due the mortgagee is zero, the mortgagor may demand in writing that the
mortgage be satisfied, and the mortgagee shall within ten days thereafter execute and record a
satisfaction thereof. Collateral real estate mortgages may be used to secure commercial,
agricultural, or consumer loans or lines of credit including, but not limited to, revolving notes and
credits and overdraft checking plans.
A filed collateral real estate mortgage which states a maturity date of the instrument secured
thereby of five years or less is effective until such maturity date and thereafter for a period of
sixty days. Any other filed collateral real estate mortgage is effective for a period of five years
from the date of filing and thereafter for a period of sixty days. A filed collateral real estate
mortgage which states that the instrument secured thereby is payable on demand is effective for
five years from the date of filing and thereafter for a period of sixty days. The effectiveness of a
filed collateral real estate mortgage lapses upon the expiration of the sixty-day period unless an
addendum to the collateral real estate mortgage extending its effective date is filed prior to the
lapse. If a filed collateral real estate mortgage exists at the time insolvency proceedings are
commenced by or against the debtor, the mortgage remains effective until sixty days after
termination of the insolvency proceeding or until expiration of the five-year period, whichever
occurs later. Upon such lapse, the lien created by the collateral real estate mortgage terminates.
An addendum continuing the effectiveness of the lien of the collateral real estate mortgage may
be filed by the mortgagee:
1. Within six months before and sixty days after a stated maturity date of five years or
less; and
2. Otherwise within six months before and sixty days after the expiration of the five-year
effective date period.
An addendum to a collateral real estate mortgage for the sole purpose of continuing the
effectiveness of its lien need be signed only by the mortgagee. Upon the timely filing of such an
addendum to a collateral real estate mortgage, the effectiveness of the collateral real estate
mortgage will be continued for five years after the stated maturity date in those instances in
which the original collateral real estate mortgage provided a maturity date or for five years after
the expiration of the five-year period whereupon it lapses in the same manner as provided
above unless another addendum to the collateral real estate mortgage continuing the
effectiveness of its lien is filed prior to such lapse. Succeeding addendums to collateral real
estate mortgages may be filed in the same manner to continue the effectiveness of the lien of
the collateral real estate mortgage.
35-03-18. Request for information concerning payoff and escrow amounts - Penalty Venue.
Unless otherwise stated in the loan or mortgage, within seven business days after receipt of
a written request that specifies the name of the owner of the property and the loan number
assigned to a loan secured by a mortgage on residential real property and that indicates the
information is necessary to close a sale of the property, the servicer of a loan secured by a
mortgage on residential real property shall provide to the owner of the property or to that
person's representative full information concerning the amount necessary on a date specified in
the request to pay off the loan and of any amount held in escrow for payment of insurance
premiums, taxes, and other costs relating to the real property. The servicer of the loan secured
by a mortgage may not charge any fee for providing the information.
If the servicer of the loan fails to deposit with the United States postal service, facsimile, or
deliver personally the information requested within seven business days after receipt of the
written request for information and the closing date for sale of the property is postponed as a
Page No. 6
result of the delay, the servicer of the loan is liable to the owner of the property for all damages
sustained because of the delay. Notwithstanding any other law, an action brought to recover
damages under this section must be heard in the county where the real property is located or
where the plaintiff resides if the residence is within this state.
35-03-19. Certificate of release - Contents - Execution - Recordation.
1. As used in this section, unless the context otherwise requires:
a. "Mortgage" means a mortgage or mortgage lien covering an interest in real
property in this state given to secure a loan in the original principal amount of five
hundred thousand dollars or less.
b. "Mortgage servicer" means the last person to whom a mortgagor or the
mortgagor's successor in interest has been instructed by a mortgagee to send
payments on a loan secured by a mortgage. A person transmitting a payoff
statement is the mortgage servicer for the mortgage described in the payment
statement.
c. "Mortgagee" means the grantee of a mortgage or if a mortgage has been
assigned of record, the last person to whom the mortgage has been assigned of
record.
d. "Mortgagor" means the grantor of a mortgage.
e. "Payoff statement" means a statement of the amount of the unpaid balance of a
loan secured by a mortgage, including principal, interest, and any other charges
properly due under or secured by the mortgage and interest on a per day basis
for the unpaid balance.
f. "Record" means to record with the recorder.
g. "Title insurance company" means a corporation or other business entity
authorized and licensed to transact the business of insuring titles to interests in
real property in this state in accordance with chapter 26.1-20.
2. An officer or duly appointed agent of a title insurance company may execute, on behalf
of a mortgagor or a person who acquired from the mortgagor title to all or a part of the
property described in a mortgage, a certificate of release that complies with the
requirements of this section and record the certificate of release in the real property
records of each county in which the mortgage is recorded if a satisfaction or release of
the mortgage has not been executed and recorded after the date payment in full of the
loan secured by the mortgage was sent in accordance with a payoff statement
furnished by the mortgagee or the mortgage servicer.
3. A certificate of release executed under this section must contain substantially all of the
following:
a. The name of the mortgagor, the name of the original mortgagee, and, if
applicable, the mortgage servicer, the date of the mortgage, the date of recording,
and volume and page or document number in the real property records where the
mortgage is recorded, together with similar information for the last recorded
assignment of the mortgage;
b. A statement that the mortgage was in the original principal amount of five
hundred thousand dollars or less;
c. A statement that the person executing the certificate of release is an officer or a
duly appointed agent of a title insurance company authorized and licensed to
transact the business of insuring titles to interests in real property in this state;
d. A statement that the certificate of release is made on behalf of the mortgagor or a
person who acquired title from the mortgagor to all or a part of the property
described in the mortgage;
e. A statement that the mortgagee or mortgage servicer provided a payoff statement
which was used to make payment in full of the unpaid balance of the loan
secured by the mortgage; and
f. A statement that payment in full of the unpaid balance of the loan secured by the
mortgage was made in accordance with the written or verbal payoff statement.
Page No. 7
4.
5.
6.
A certificate of release authorized by this section must be executed and acknowledged
as required by law in the case of a deed and may be executed by a duly appointed
agent of a title insurance company. The delegation to an agent by a title insurance
company does not relieve the title insurance company of any liability for damages
caused by its agent for the wrongful or erroneous execution of a certificate of release.
The appointment of agent must be executed and acknowledged as required by law in
the case of a deed and must state the title insurance company as the grantor, the
identity of the person authorized to act as agent to execute and record certificates of
release provided for in this section on behalf of the title insurance company, that the
agent has the full authority to execute and record certificates of release provided for in
this section on behalf of the title insurance company, the term of appointment of the
agent, and that the agent has consented to and accepts the terms of the appointment.
A single appointment of agent may be recorded in each county in each recorder's
office. A separate appointment of agent may not be necessary for each certificate of
release. The appointment of agent may be rerecorded when necessary to establish
authority of the agent. The authority continues until a revocation of appointment is
recorded with the recorder where the appointment of agent was recorded.
For purposes of releasing the mortgage, a certificate of release containing the
information and statements provided for in this section and executed as provided in
this section is prima facie evidence of the facts contained in the certificate, is entitled
to be recorded with the recorder, and operates as a release of the mortgage described
in the certificate. The recorder shall rely upon the certificate to release the mortgage.
Recording of a wrongful or erroneous certificate of release by a title insurance
company or its agent does not relieve the mortgagor, or the mortgagor's successors or
assigns, from any personal liability on the loan or other obligations secured by the
mortgage. In addition to any other remedy provided by law, a title insurance company
wrongfully or erroneously recording a certificate of release under this section is liable
to the mortgagee for actual damage sustained due to the recording of the certificate of
release.
If a mortgage is recorded in more than one county and a certificate of release is
recorded in one of them, a certified copy of the certificate of release may be recorded
in another county with the same effect as the original. In all cases, the certificate of
release shall be entered and indexed as satisfactions of mortgage are entered and
indexed.
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