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BILL AS INTRODUCED 2007-2008

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S.171

Introduced by Senator Coppenrath of Caledonia District, Senator Campbell of Windsor District and Senator Illuzzi of Essex‑Orleans District

Referred to Committee on

Date:

Subject:  Property; discharge of mortgage by attorney  

Statement of purpose:  This bill proposes to permit a licensed attorney to discharge a mortgage on any property if the mortgagee has failed to do so; current law permits an attorney to discharge mortgages in such circumstances only on farmland or on owner‑occupied residential property of two units or less.  The bill also permits an attorney to discharge a mortgage if the original discharge was not executed properly, or if it was executed by a mortgagee that is no longer the holder of record of the mortgage.    

AN ACT RELATING TO DISCHARGE OF A MORTGAGE BY AN  ATTORNEY

It is hereby enacted by the General Assembly of the State of Vermont:


Sec. 1.  27  V.S.A. § 464a is amended to read:

§ 464a.  DISCHARGE BY LICENSED ATTORNEY

(a)  A recorded mortgage on a dwelling of two units or less occupied by the owner as the owner’s principal residence or on farmland may be discharged by an attorney‑at‑law licensed to practice in this state if:

(1)  the mortgagee, after receipt of payment of the mortgage in accordance with the payoff statement furnished to the mortgagor by the mortgagee, or the mortgagee’s agent, fails to make that discharge of the mortgage execute and record a discharge of the mortgage in accordance with section 461, 462, or 463 of this title;

(2)  the discharge is executed by, or is in the name of, a purported mortgagee that is not holder of record of the mortgage; or

(3)  the discharge of record was not executed in accordance with sections 461, 462, or 463 of this title.

(b)  The attorney An attorney‑at‑law who discharges a mortgage under this section shall execute and record with the discharge an affidavit in the record of deeds affirming that:

(1)  the affiant is an attorney‑at‑law in good standing and licensed to practice in Vermont;

(2)  the affidavit is made at the request of the mortgagor or the mortgagor’s executor, administrator, successor, assignee, or transferee or the transferee’s mortgagee;

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

(4)  the purported mortgagee has received payment of the mortgage in accordance with the payoff statement that has been proved by a bank check, certified check, or attorney client funds account check negotiated by the purported mortgagee or by evidence of receipt of payment by the purported mortgagee;

(5)  more than 30 days have elapsed since the payment was received by the purported mortgagee; and

(6)  the purported mortgagee has received written notification by certified mail 15 days in advance, sent to the purported mortgagee’s last known address, that the affiant intends to execute and record an affidavit in accordance with this section, enclosing a copy of the proposed affidavit; the purported mortgagee has not delivered a discharge or acknowledgment of satisfaction in response to the notification; and the purported mortgagee has failed to dispute payoff of the mortgage.

(b)(c)  The affidavit must include:  the names and addresses of the mortgagor and, the original mortgagee, and the purported mortgagee; the date of the mortgage,; and the book and page number and similar information with respect to the most recent recorded assignment of the mortgage.

(c)(d)  The affiant shall attach to the affidavit the following, certifying that each copy is a true copy of the original document:

(1)  photocopies of the documentary evidence that payment has been received by the purported mortgagee, including the purported mortgagee’s endorsement of a the payoff check, provided that the payor’s account number may be redacted from the copy of the payoff check; and

(2)  a photocopy of the payoff statement received from the purported mortgagee.

(d)(e)  An affidavit recorded under this section has the same effect as discharge under sections 431 461, 462, or 463 of this title.

(f)  An attorney‑at‑law who executes and records a discharge of mortgage in accordance with this section shall not be liable to the holder of the mortgage on account of such discharge except in the event of fraud by the discharging attorney.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us