Redemption, Release, and Transfer of Mortgages

SECTION 34-26-8

§ 34-26-8. Release of mortgage – Affidavit.

(a) For purposes of this section:

(1) "Mortgage" means a mortgage upon any interest in real property located in the State of Rhode Island.

(2) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity;

(3) "Mortgagor" means the grantor of a mortgage;

(4) "Mortgagee" means the grantee of a mortgage; provided, if the mortgage has been assigned of record. "Mortgagee" means the last person to whom the mortgage has been assigned of record; provided further, if the mortgage has been serviced by a mortgage servicer, "Mortgagee" means the mortgage servicer;

(5) "Mortgage servicer" means the last person to whom the mortgagor has been instructed by the mortgagee to send payment of the mortgage. The person who has transmitted a payoff statement shall be deemed to be the mortgage servicer with respect to the mortgage described in that payoff statement;

(6) "Attorney-at-law" means any person admitted to practice law in this state and in good standing;

(7) "Title insurance company" means any corporation or other business entity authorized and licensed to transact the business of insuring titles to interests in real property in this state; and

(8) "Payoff statement" means a written statement of the amount of the unpaid balance on a mortgage, including principal, interest and other charges properly assessed pursuant to the loan documentation of such mortgage and of the interest on a per diem basis with respect to the unpaid principal balance of the mortgage.

(b) If a mortgagee fails to execute and deliver a release of mortgage to the mortgagor or to the mortgagor's designated agent within thirty (30) days from receipt of payment of the mortgage by the mortgagee in accordance with the payoff statement furnished by the mortgagee, any attorney-at-law or duly authorized officer of a title insurance company may, on behalf of the mortgagor or any transferee of the mortgagor who has acquired title to the premises described in the mortgage, execute and cause to be recorded in the land records of each city or town where the mortgage was recorded, an affidavit which complies with the requirements of this section.

(c) An affidavit pursuant to this section shall state that:

(1) The affiant is an attorney-at-law or the authorized officer of a title insurance company, and that the affidavit is made in behalf of and at the request of the mortgagor;

(2) The mortgagee has provided a payoff statement with respect to the loan secured by the mortgage;

(3) The affiant has ascertained that the mortgagee has received payment of the loan secured by the mortgage in accordance with the payoff statement, as evidence by a bank check, certified check or attorney's clients' funds account which has been negotiated by the mortgagee or by other documentary evidence of such receipt of payment by the mortgagee;

(4) More than sixty (60) days have elapsed since payment was received by the mortgagee; and

(5) The affiant has given the mortgagee at least thirty (30) days' notice in writing by certified mail, return receipt request and signed for and completed, of intention to execute and cause to be recorded an affidavit in accordance with this section with a copy of the proposed affidavit attached to such written notice, and that the mortgagee has not responded in writing to such notification, or that any request for additional payment made by the mortgagee has been complied with at least fifteen (15) days prior to the date of the affidavit.

(d) Such affidavit shall state the names of the mortgagor and the mortgagee, the date of the mortgage, and the volume and page of the land records where the mortgage is recorded. The affidavit shall give similar information with respect to any recorded assignment of the mortgage.

(e) The affiant shall attach to the affidavit:

(i) Photostatic copies of the documentary evidence that payment has been received by the mortgagee, including mortgagee's endorsement of any bank check, certified check or attorney's clients' funds account,

(ii) A photostatic copy of the written payoff statement and shall certify on each that it is a true copy of the original document, and

(iii) Evidence of mailing and receipt notice to mortgagee.

(f) Such affidavit, when recorded, shall be a release of the lien of such mortgage of the property described therein.

(g) The city or town clerk shall index the affidavit in the name of the mortgagor as grantor.

(h) Any person who causes an affidavit to be recorded in the land records of any city or town in accordance with this section knowing the information and statements therein contained to be false may be fined not more than a dollar amount that is double the face amount of the mortgage falsely discharged and shall make restitution to the affected mortgagee to the extent such mortgagee suffers direct financial loss due to said mortgage being falsely discharged.

(i) The provisions of this section shall not be applicable to mortgages securing lines of credit nor to any mortgage held by a financial institution incorporated under the laws of the state of Rhode Island or to any mortgage held by any financial institution organized under federal laws and maintaining a principal place of business within the state of Rhode Island or to any mortgage held by the Rhode Island Housing and Mortgage Finance Corporation.

History of Section.
(P.L. 1995, ch. 131, § 1.)