33-707. Acknowledgment of satisfaction; recording

 

A. If a mortgagee, trustee or person entitled to payment
receives full satisfaction of a mortgage or deed of trust, he shall acknowledge
satisfaction of the mortgage or deed of trust by delivering to the person
making satisfaction or by recording a sufficient release or satisfaction of
mortgage or deed of release and reconveyance of the deed of trust, which
release, satisfaction of mortgage or deed of release and reconveyance shall
contain the docket and page number or recording number of the mortgage or deed
of trust. If a mortgagee, trustee or person entitled to payment receives an
amount less than full satisfaction of a mortgage or deed of trust, but has
agreed in writing to release the mortgage or deed of trust, the mortgagee,
trustee or person shall acknowledge release of the mortgage or deed of trust by
delivering to the person making payment of the agreed amount that is less than
full satisfaction or by recording a sufficient release of the mortgage or
release and reconveyance of the deed of trust, which release or release and
reconveyance shall contain the docket and page number or recording number of
the mortgage or deed of trust. It shall not be necessary for the trustee to
join in the acknowledgment or satisfaction, or in the release, satisfaction of
mortgage or deed of release and reconveyance. The recorded release or
satisfaction of mortgage or deed of release and reconveyance constitutes
conclusive evidence of full or partial satisfaction and release of the mortgage
or deed of trust in favor of purchasers and encumbrancers for value and without
actual notice.

 

B. When a mortgage or deed of trust is satisfied by a
release or satisfaction of mortgage or deed of release and reconveyance, except
where the record of such deed of trust or mortgage has been destroyed or
reduced to microfilm, the recorder shall record the release or satisfaction of
the deed of trust or mortgage showing the book and page or recording number
where the deed of trust or mortgage is recorded.

 

C. If the record of such mortgage or deed of trust has been
destroyed and the record thereof reduced to microfilm, it shall be sufficient
evidence of satisfaction of any such mortgage or deed of trust for the release
or satisfaction of mortgage or deed of release and reconveyance to be recorded
and indexed as such. The instrument shall sufficiently identify the mortgage or
deed of trust by parties and by book and page or recording number of the
official records. Such instrument shall be treated as a release or satisfaction
of mortgage or deed of release and reconveyance and recorded.

 

D. If the note secured by a mortgage or deed of trust has
been lost or destroyed, the assignee, mortgagee or beneficiary shall, before
acknowledging satisfaction, make an affidavit that he is the lawful owner of
the note and that it has been paid, but cannot be produced for the reason that
it has been lost or destroyed, and the affidavit shall be recorded. If the
record of such mortgage or deed of trust has been destroyed and the record
thereof reduced to microfilm, such affidavit shall be recorded and indexed as
releases, satisfactions of mortgage and deeds of release and reconveyance are
recorded and indexed and shall have the same force and effect as a release or
satisfaction of a mortgage or deed of release and reconveyance as provided in
subsection A of this section.

 

E. If a full release or satisfaction of mortgage or deed of
release and reconveyance of deed of trust that, according to its terms, recites
that it secures an obligation having a stated indebtedness not greater than one
million dollars exclusive of interest, or a partial release or satisfaction of
mortgage or partial deed of release and reconveyance of deed of trust that,
according to its terms, recites that the payment required for the partial
satisfaction or release does not exceed one million dollars exclusive of
interest, or a release of mortgage or deed of release and reconveyance of deed
of trust by a mortgagee, trustee or person who has agreed in writing to release
the mortgage or deed of trust in exchange for receipt of an amount less than
full satisfaction of the mortgage or deed of trust and that, according to its
terms, recites that it secures an obligation having a stated indebtedness not
greater than one million dollars exclusive of interest, has not been executed
and recorded pursuant to subsection A or C of this section within sixty days of
full or partial satisfaction of the obligation secured by such mortgage or deed
of trust, or within sixty days of the receipt by the mortgagee, trustee or
other person of an amount less than full satisfaction if agreed in writing, a
title insurer as defined in section 20-1562 may prepare, execute and record a
full or partial release or satisfaction of mortgage or deed of full or partial
release and reconveyance of deed of trust. No earlier than sixty days after
full or partial satisfaction and at least thirty days prior to the issuance and
recording of any such release or satisfaction of mortgage or deed of release
and reconveyance pursuant to this subsection, the title insurer shall mail by
certified mail with postage prepaid, return receipt requested, to the mortgagee
of record or to the trustee and beneficiary of record and their respective
successors in interest of record at their last known address shown of record
and to any persons who according to the records of the title insurer received
payment of the obligation at the address shown in such records, a notice of its
intention to release the mortgage or deed of trust accompanied by a copy of the
release or satisfaction of mortgage or deed of release and reconveyance to be
recorded which shall set forth:

 

1. The name of the beneficiary or mortgagee or any
successors in interest of record of such mortgagee or beneficiary and, if
known, the name of any servicing agent.

 

2. The name of the original mortgagor or trustor.

 

3. The name of the current record owner of the property and
if the release or satisfaction of mortgage or deed of release and reconveyance
is a partial release, the name of the current record owner of the parcel
described in the partial release or satisfaction of mortgage or deed of partial
release and reconveyance of deed of trust.

 

4. The recording reference to the deed of trust or mortgage.

 

5. The date and amount of payment, if known.

 

6. A statement that the title insurer has actual knowledge
that the obligation secured by the mortgage or deed of trust has been paid in
full, or if the release or satisfaction of mortgage or deed of release and
reconveyance of deed of trust is a partial release, a statement that the title
insurer has actual knowledge that the partial payment required for the release
of the parcel described in the partial release or satisfaction has been paid
or, if the release of mortgage or deed or release and reconveyance of deed of
trust results from a mortgagee’s, trustee’s of other person’s written agreement
to accept an amount less than full satisfaction of the obligation, a statement
that the title insurer has actual knowledge that the agreed upon payment has
been made in full.

 

F. The release or satisfaction of mortgage or release and
reconveyance of deed of trust may be executed by a duly appointed
attorney-in-fact of the title insurer, but such delegation shall not relieve
the title insurer from any liability pursuant to this section.

 

G. A full or partial release or satisfaction of mortgage or
deed of full or partial release and reconveyance of deed of trust issued
pursuant to subsection E of this section shall be entitled to recordation and,
when recorded, shall constitute a full or partial release or satisfaction of
mortgage or deed of release and reconveyance of deed of trust issued pursuant
to subsection A or C of this section.

 

H. Where an obligation secured by a deed of trust or
mortgage was paid in full prior to September 21, 1991, and no release or
satisfaction of mortgage or deed of release and reconveyance of deed of trust
was issued and recorded by November 20, 1991, a release or satisfaction of mortgage
or deed of release and reconveyance of deed of trust as provided for in
subsection E of this section may be prepared and recorded without the notice
prescribed by subsection E of this section.

 

I. A release or satisfaction of mortgage or a release and reconveyance
of deed of trust by a title insurer under the provisions of subsection E of
this section shall not constitute a defense nor release any person from
compliance with subsections A through D of this section or from liability under
section 33-712.

 

J. In addition to any other remedy provided by law, a title
insurer preparing or recording the release and satisfaction of mortgage or the
release and reconveyance of deed of trust pursuant to subsection E of this
section shall be liable to any party for actual damage, including attorney
fees, which any person may sustain by reason of the issuance and recording of
the release and satisfaction of mortgage or release and reconveyance of deed of
trust.

 

K. The title insurer shall not record a release and satisfaction
of mortgage or release and reconveyance of deed of trust if, prior to the
expiration of the thirty day period specified in subsection E of this section,
the title insurer receives a notice from the mortgagee, trustee, beneficiary,
holder or servicing agent which states that the mortgage or deed of trust
continues to secure an obligation, or in the case of a partial release or
satisfaction of mortgage or deed of partial release and reconveyance of deed of
trust, a notice that states that the partial payment required to release the
parcel described in the partial release or satisfaction has not been paid.

 

L. The title insurer may charge a reasonable fee to the
owner of the land or other person requesting a release and satisfaction of
mortgage or release and reconveyance of deed of trust for services, including
but not limited to search of title, document preparation and mailing services
rendered, and may in addition collect official fees.