On May 1, 2015, the Governor of Oklahoma signed into law Senate Bill 443, designated as Title 36 O.S. §5008, which authorizes an officer of a title insurance company or a duly appointed agent of the title insurance company, to execute and record an affidavit in the real property records of the county in which a mortgage was recorded, which will operate as a release of the mortgage described in the affidavit. The written approval of the title insurance company shall appear on the affidavit if executed by an agent of the title insurance company. The effective date of the new statute is November 1, 2015.
This Bulletin will outline the procedures to be followed and describe the documentation required in order to record an effective Release of Mortgage Affidavit.
1. The statute applies only to a mortgage on property consisting exclusively of a one-to-four family residence, including a residential unit in a condominium regime.
2. If the mortgagee fails to execute and deliver a release of mortgage to the mortgagor or a designated agent of the mortgagor within sixty (60) days after the receipt of payment of the mortgage by the mortgagee in accordance with a payoff statement furnished by the mortgagee or its mortgage servicer, a Release of Mortgage Affidavit may be executed and recorded by an authorized officer of a title insurance company or a duly appointed agent of the title insurance company.
3. A Mortgage Release Affidavit shall state that:
a. the Affiant is an authorized officer or a duly appointed agent of the title insurance company;
b. the affidavit is made on behalf of the mortgagor or a transferee of the mortgagor who acquired title to the property described in the mortgage;
c. the mortgagee provided a payoff statement with respect to the loan secured by the mortgage;
d. affiant has ascertained that the mortgagee has received payment of the loan secured by the mortgage in accordance with the payoff statement, as evidenced by;
i. a bank check, certified check, cashier’s check, escrow account check from the title company or title insurance agent or attorney trust account check that has been negotiated by the mortgagee,
ii. wire transfer; or
iii. another documentary evidence of the receipt of payment by the mortgagee;
e. more than sixty (60) days has elapsed since the date payment was received by the mortgagee;
f. the title insurance company or its duly appointed agent has given the mortgagee at least fifteen (15) days’ notice, in writing, by certified mail, return receipt requested, of its intention to execute and record a Release of Mortgage Affidavit, with a copy of the proposed affidavit attached; and
g. the mortgagee has not responded in writing to the notification at least fifteen (15) days before the affidavit is recorded.
4. The affidavit must include the names of the mortgagor and the mortgagee, the date of the mortgage, the legal description of the property and the book and page or clerk’s document number of the real property records where the mortgage and/or modification is recorded, together with similar information for a recorded assignment of the mortgage.
5. The Affiant shall attach a photo static copy, certified by the affiant as a true and correct copy of the original document, of:
a. documentary evidence that payment has been received by the mortgagee, including endorsement by the mortgagee of a negotiated check, if paid by check or proof of a wire transfer, if paid by wire. The bank account number and routing number on the check or proof of wire transfer may be redacted by the filer; and
b. the payoff statement.
While this new legislation creates a helpful tool in solving a long-standing problem, it should be used with the same degree of care and professionalism that agents and insurers exercise when issuing commitments and policies.
If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.
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