N.Y. Real Property Law 321 – Recording discharge of mortgage
§ 321. Recording discharge of mortgage. 1. The recording officer shall mark on the record of a mortgage the word "discharged" when there is presented to him a certificate or certificates signed as hereinafter provided, and acknowledged or proved and certified in like manner as to entitle a conveyance to be recorded, specifying that the mortgage has been paid or otherwise satisfied and discharged.
Terms Used In N.Y. Real Property Law 321
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- conveyance: includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien; except a will, a lease for a term not exceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property. See N.Y. Real Property Law 290
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Executor: A male person named in a will to carry out the decedent
- Fiduciary: A trustee, executor, or administrator.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Intestate: Dying without leaving a will.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgagee: The person to whom property is mortgaged and who has loaned the money.
- Mortgagor: The person who pledges property to a creditor as collateral for a loan and who receives the money.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- recorded: means the entry, at length, upon the pages of the proper record books in a plain and legible hand writing, or in print or in symbols of drawing or by photographic process or partly in writing, partly in printing, partly in symbols of drawing or partly by photographic process or by any combination of writing, printing, drawing or photography or either or any two of them, or by an electronic process by which a record or instrument affecting real property, after delivery is incorporated into the public record. See N.Y. Real Property Law 290
- recording officer: means the county clerk of the county, except in a county having a register, where it means the register of the county. See N.Y. Real Property Law 290
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- Trustee: A person or institution holding and administering property in trust.
- Venue: The geographical location in which a case is tried.
(a) When it does not appear from the record that any interest in the mortgage has been assigned, the discharge shall be signed by the mortgagee or by his personal representative.
(b) When it appears from the record that the mortgage has been assigned, whether or not the assignment was made as collateral security, the discharge shall be signed by the person who appears from the record to be the last assignee thereof or by his personal representative.
(c) When the mortgage or an assignment thereof names two or more persons as mortgagees or assignees, the discharge shall be signed by the person or persons designated by the mortgage or assignment to receive payment of the mortgage debt or to give full acquittance and discharge therefor. When no such person or persons are designated by the mortgage or assignment, the certificate of discharge shall be signed by all of the persons named, in the mortgage or assignment, as mortgagees or assignees, as the case may be, or by their personal representatives, if the mortgage or assignment (i) specifies their respective interest in terms of a sum of money, or in terms of a fraction or percentage, or (ii) states that such persons shall share equally in, or shall have equal shares in the mortgage, or (iii) describes such persons as tenants in common of the mortgage. When it appears from the record that the mortgage is held by trustees, the certificate of discharge shall be signed by a majority of such trustees or of the survivors of them or by the survivors or survivor of them, unless the instrument creating the trust provides otherwise. Except as required above, the discharge may be signed by any one of the persons named in the mortgage or assignment, as mortgagees or assignees, as the case may be, or by the personal representative of the last survivor of them. If the mortgage or assignment states that the persons named therein as mortgagees or assignees shall hold the mortgage jointly, or describes such persons as joint tenants or tenants by the entirety of the mortgage, or expressly creates a right of survivorship among them, the discharge may be signed by any one of such persons or by the personal representative of the last survivor of them notwithstanding that the mortgage or assignment specifies their respective interests in the mortgage or states that they shall share equally or have equal shares therein.
(d) When the mortgage has been partially assigned, the certificate of discharge shall be signed by all of the persons, or their personal representatives, who in the aggregate are the holders of all portions of the mortgage, including each partial assignee, and the assignor in case any portion of the mortgage has not been assigned; provided, however, that if any partial assignment names two or more persons as assignees, the person or persons who may sign the certificate discharging such partial interest shall be determined in accordance with the provisions of paragraph (c) of this subdivision.
(e) Whenever two or more persons are required to execute a certificate of discharge as provided in this subdivision, there may be presented in lieu of such certificate, separately executed certificates of discharge as to the respective interests of each in the mortgage so that together the several certificates purport to discharge the entire mortgage.
(f) In place of any of the persons specified in paragraphs (a), (b), (c) or (d) of this subdivision, a certificate of discharge of the mortgage or of any interest therein may be signed (i) by an agent who has been authorized by any such person to demand or receive payment or to give a certificate of discharge of the mortgage by a power of attorney, provided such power of attorney is of record in the office where the mortgage is recorded, and no instrument of revocation has been recorded; or (ii) by any person in whom title to such mortgage or to such interest, or authority to act on behalf of or in exercise of the right or power of the holder of such mortgage or of such interest is vested, in a fiduciary capacity, by virtue of an order or decree of a court having jurisdiction thereof, including, but not limited to, the guardian of a minor, the committee of an incompetent person, or the conservator of a conservatee, whether domestic or foreign, and a receiver in bankruptcy or trustee in bankruptcy. A certificate executed by any person specified in clause (ii) of this paragraph shall recite the name of the court and the venue of the proceedings in which his appointment was made, or the order or decree vesting him with such title or authority was entered.
(g) If the mortgage is stated in the certificate of discharge to have been taken by the noncitizen property custodian under and pursuant to the trading with the enemy act adopted by the United States congress, and approved October sixth, nineteen hundred sixteen, or any act amendatory thereof, or supplemental thereto, such certificate may be executed by such noncitizen property custodian or such person as the president may appoint to give full acquittance and discharge for money or property belonging to an enemy or ally of an enemy which may be conveyed, assigned, delivered or transferred to said noncitizen property custodian, with like effect as if the same had been executed by the mortgagee, or the personal representative or assignee of such mortgagee. Such certificate may be recorded, and such certificate, the record thereof and a certified copy of such record may be introduced in evidence in all courts of this state.
2. (a) The recording officer shall record and file such certificate or certificates together with the certificates of acknowledgment or proof, and shall note on the record of the mortgage the book and page containing such record of such certificate or certificates or the serial number of such record in the minute of the discharge of such mortgage, made by the officer upon the record thereof. The provisions of this paragraph shall not apply to the county of Suffolk, if the block method of index is in use, or a separate index of satisfactions recorded is maintained.
(b) The recording officer shall also record every other instrument relating to a mortgage which is presented to him, acknowledged or proved in like manner as to entitle a conveyance to be recorded, including certificates purporting to discharge a mortgage or an interest therein which are signed by persons other than those specified in the first subdivision of this section, and also including, but not limited to, assignments, releases, partial discharges, reductions, estoppel certificates, extensions, discharges of partial interest and partial discharges of partial interest, regardless by whom any such instrument has been executed. When any such instrument has been recorded, the recording officer, except in counties where the block method of indexing is in use, or in Suffolk county, if a separate index of said instruments is maintained, shall enter a minute upon the record of the mortgage to which such instrument relates, indicating the nature of such instrument and the book and page where it has been recorded or the serial number of such record.
3. Every certificate presented to the recording officer shall be executed and acknowledged or proved in like manner as to entitle a conveyance to be recorded. If the mortgage has been assigned, in whole or in part, the certificate shall set forth the date of each assignment in the chain of title of the person or persons signing the certificate, the names of the assignor and assignee, the interest assigned, and, if the assignment has been recorded, the book and page where it has been recorded or the serial number of such record; or if the assignment is being recorded simultaneously with the certificate of discharge, the certificate of discharge shall so state. If the mortgage has not been assigned of record, the certificate shall so state.
No certificate presented to the recording officer shall purport to discharge more than one mortgage, except that one certificate may purport to discharge two or more mortgages where the certificate states that one of such mortgages corrects, perfects or modifies the other mortgage or mortgages, or spreads the lien of the other mortgage or mortgages over the property subject to the lien of such mortgage, or consolidates the lien of the other mortgage or mortgages with the lien of such mortgage to constitute a single lien, or where the certificate states that the liens of the mortgages which the certificate purports to discharge have been so spread or so consolidated by a separate instrument and such instrument has been recorded; provided that in such case the certificate of discharge shall identify and describe each mortgage which it purports to discharge, in a separate paragraph, in the same manner and with the same particularity, and setting forth the same information with respect to assignments thereof, as would be required for a separate certificate discharging that mortgage, and shall also state, in a separate paragraph for each instrument, the date of any such separate instrument by which the liens of the mortgages have been spread or consolidated, the names of the parties thereto, and the book and page where it has been recorded or the serial number of such record. In any such case, except where otherwise expressly provided by law, the fee or fees which the recording officer is entitled to receive for filing and entering a certificate of discharge of a mortgage and examining assignments of such mortgage shall be payable with respect to each mortgage which the certificate purports to discharge, to the same extent as if a separate certificate of discharge had been filed for such mortgage.
4. After the record of the mortgage has been marked with the word "discharged," the recording officer shall make and deliver to any person tendering the lawful fees therefor, his certificate setting forth the names of the mortgagor and the mortgagee, the book and page at which, the date when such mortgage was recorded, and the date on which the record of such mortgage was so marked, except in a county where recording is done by microphotography or photostating in the manner permitted by law, in which case, after microphotography or photostating, such certificate of discharge and the certificates of its acknowledgment or proof shall, in lieu of filing as provided in paragraph (a) of subdivision two of this section, be returned to the party leaving same for record.
5. The term "personal representative" as used in this section shall include the following:
(a) An executor, administrator or voluntary administrator or one of two or more executors, administrators or voluntary administrators, whether domestic or foreign, including the public administrator, and an ancillary administrator appointed in this state. A certificate executed by any such personal representative shall recite the name of the court and the venue of the proceedings in which his letters testamentary or of administration were issued.
(b) All of the distributees of a person dying intestate for whom no administrator shall have been appointed, provided that two years shall have elapsed since the date of death of such intestate. A certificate executed by such distributees shall recite the date of death of the intestate, his place of residence at the time of death, the fact that he died intestate, that no administrator has been appointed and that they constitute all the distributees of the intestate.
6. The provisions of this section authorizing the recording officer to mark on the record of a mortgage the word "discharged" shall not be deemed to enlarge, diminish or alter the legal effect which a certificate executed by any person or persons, or any payment made by the mortgagor or other transaction with respect to the mortgage or the mortgage debt, would otherwise have upon the rights of the mortgagor or of any person claiming a right or interest in the mortgage, the mortgage debt or the property subject to the mortgage.
7. In a county in which recording is accomplished by microfilm process and in which a block index of mortgages is also maintained it will not be necessary to mark the record of the mortgage "discharged", but it will be deemed sufficient compliance with this section if there is entered upon the block index of such mortgage the date of filing and the serial number of the certificate effecting the discharge.
7-a. If in any county, recording is accomplished by microfilm process and a separate index for satisfactions recorded is maintained or in which a block index of mortgages is also maintained it will not be necessary to mark the record of the mortgage "discharged", but it will be deemed sufficient compliance with this section if there is entered upon the index of such mortgage the date of filing and the serial number of the certificate effecting the discharge.
8. Certificates of discharge of mortgage and certificates of their acknowledgment or proof heretofore or hereafter recorded and filed, may be returned personally or by mail to the party leaving same for record or destroyed after microfilming or photostating where proper indices are maintained.