Chapter 21. Mortgages On Real Estate
TITLE 25
Property
Mortgages and Other Liens
CHAPTER 21. MORTGAGES ON REAL ESTATE
ALL
DESCRIPTION OF PREMISES
RECITAL
§ 2101. Form of mortgage; effect.
(a) The following shall be a sufficient form of mortgage for the purpose of creating a lien on real estate within this State:
WHEREAS, A. D. of............... ., hereinafter called party of the first part, in and by his certain obligation duly executed, bearing even date herewith, stands bound unto C. D. of............... . in the sum of............... . Dollars, payable............... . together with interest thereon, at the rate of............... . per centum per annum, payable............... ., from the date thereof, together with costs and counsel fees, under the terms and conditions therein expressed.
NOW THIS MORTGAGE WITNESSETH, that the said party of the first part for
and in consideration of the aforesaid debt of............... . Dollars, and
for the better securing the payment of the same, with interest, as aforesaid
and costs and counsel fees, doth hereby grant and convey unto the said party
of the second part,
and it is hereby expressly provided and agreed that if any action, suit,
matter or proceeding be brought for the enforcement of this mortgage or the
accompanying bond, and if the plaintiff or lien holder in said action, suit or
proceeding shall recover judgment in any sum, such plaintiff or lien holder
shall also recover as reasonable counsel fees............... . per centum of
the amount decreed for principal and interest, which said counsel fees shall
be entered, allowed and paid as a part of the decree or judgment in said
action, suit or proceeding.
Provided Always, Nevertheless, that if the said party of the first part, his
Heirs, Executors, Administrators or Assigns, shall and do well and truly pay,
or cause to be paid, unto the said party of the second part, his Executors,
Administrators or Assigns, the aforesaid debt of............... . dollars on
the day and time hereinbefore mentioned and appointed for the payment thereof
with interest, then and from henceforth, as well this present Indenture, and
the estate hereby granted, as the said recited Obligation, shall cease,
determine and become void and of no effect, anything hereinbefore contained to
the contrary thereof, in anywise notwithstanding.
In Witness Whereof, the said party of the first part has hereunto set the
party of the first part's hand and seal this................ day of................................ A.D.........................
Sealed and delivered in
the presence of
………………… …............. (Seal)
(b) A mortgage in the above form duly executed, acknowledged and recorded shall operate and be effective as a valid mortgage lien upon the entire interest of the mortgagors in the premises therein described, and proceedings thereon may be taken as now provided by law, for the foreclosure of mortgages.
(c) Nothing herein contained shall invalidate a mortgage not made in the above form, but a mortgage made in the form heretofore in common use within this State shall be valid and effectual.
33 Del. Laws, c. 209; Code 1935, § 3688; 25 Del. C. 1953, § 2101; 70 Del. Laws, c. 186, § 1.;
§ 2102. Minor's bond, obligation or mortgage.
The signature, seal and acknowledgment of a person under the age of 21 years and of the age of at least 18 years to any bond, other obligation and/or mortgage shall be valid and legally effective for all intents and purposes in law or in equity, and shall bind that person, that person's heirs, executors and administrators.
33 Del. Laws, c. 209; Code 1935, § 3688; 45 Del. Laws, c. 230, § 6; 46 Del. Laws, c. 164; 47 Del. Laws, c. 124; 25 Del. C. 1953, § 2102; 58 Del. Laws, c. 511, § 60; 70 Del. Laws, c. 186, § 1.;
§ 2103. Effect of mortgage executed by trustee for mentally ill spouse.
Any mortgage executed and acknowledged by a trustee for a mentally ill married man or woman, appointed pursuant to the provisions of § 104 or § 105 of this title, shall be as valid and effectual to bar and divest his or her estate as tenant by the curtesy or dower interest in case he or she survives his or her spouse, as if he or she had been legally capable, and had in fact executed and acknowledged such mortgage; and any such mortgage, or the record thereof, shall be competent evidence in all courts of this State.
17 Del. Laws, c. 616, § 2; 22 Del. Laws, c. 444, §§ 1, 2; Code 1915, §§ 3202, 3203; Code 1935, §§ 3663, 3664; 25 Del. C. 1953, § 2103; 49 Del. Laws, c. 57, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2104. Purchase money mortgage of married woman; liability of husband.
Where a married woman becomes a purchaser of real estate, she may secure the purchase money, or part of it, by recognizance, bond, mortgage or otherwise as single women may, and her husband need not be a party nor consent to such act of giving security. In such case any such recognizance, bond, mortgage or other obligation or lien shall not be subject to any right or estate in curtesy of the husband of such married woman. In case of her entering into recognizance or giving bond or mortgage, or making other contract for the payment of the purchase money of such real estate, her husband shall not be liable, unless he is a party thereto.
14 Del. Laws, c. 550, § 4; Code 1915, § 3052; 30 Del. Laws, c. 197; Code 1935, § 3545; 25 Del. C. 1953, § 2104; 70 Del. Laws, c. 186, § 1.;
§ 2105. Purchase money mortgage by married woman.
A married woman may secure the purchase money or part of it for real estate purchased by her, and give a bond, as provided by § 2104 of this title.
Code 1852, § 1614; Code 1915, § 3200; Code 1935, § 3661; 25 Del. C. 1953, § 2105; 70 Del. Laws, c. 186, § 1.;
§ 2106. Priority of mortgage from time of recording.
A mortgage, or a conveyance in the nature of a mortgage, of lands or tenements shall have priority according to the time of recording it in the proper office, without respect to the time of its being sealed and delivered, and shall be a lien from the time of recording it and not before.
Code 1852, § 1632; Code 1915, § 3222; Code 1935, § 3684; 25 Del. C. 1953, § 2106.;
§ 2107. Priority of mortgages recorded at same time.
If 2 or more mortgages, or conveyances in the nature of mortgages, of the same premises are lodged in the same office at the same time, they shall stand in priority in relation to each other, according to their respective dates.
Code 1852, § 1633; Code 1915, § 3223; Code 1935, § 3685; 25 Del. C. 1953, § 2107.;
§ 2108. Priority of purchase money mortgages.
If lands or tenements are sold and 1 or more mortgages on the same, or any part thereof, are made by the purchaser to the vendor for securing the purchase money or any part thereof, and if such mortgages are recorded within 5 days after the deed conveying such land or tenements from such vendor to such purchaser shall be recorded, the lien of the mortgages on the lands or tenements or any part thereof shall have preference to and priority over any judgment against the mortgagor or any other lien created or suffered by that mortgagor, although such judgment or lien is of a date prior to the mortgages. As between 2 or more such purchase money mortgages on the same land, they shall have priority and preference according to the times that they are severally recorded in the proper office. Two or more such mortgages, recorded at the same time, shall have no preference or priority as between themselves.
Code 1852, § 1634; Code 1915, § 3224; 28 Del. Laws, c. 223; Code 1935, § 3686; 25 Del. C. 1953, § 2108; 70 Del. Laws, c. 186, § 1.;
§ 2109. Assignment of mortgages.
(a) An assignment of a mortgage or any sealed instrument attested by 1 creditable witness shall be valid and effectual to convey all the right and interests of the assignor.
(b) All assignments of mortgages or any sealed instruments heretofore made in the presence of 1 witness and all satisfactions made by assignees in such assignments are made good and valid.
18 Del. Laws, c. 213, §§ 1, 2; Code 1915, § 3226; Code 1935, § 3689; 25 Del. C. 1953, § 2109.;
§ 2110. Effect of release of part of mortgaged premises; acknowledgment and recording.
The release by the mortgagee or that mortgagee's assigns, executed at the instance of the mortgagor, that mortgagor's heirs or assigns, of any part of the mortgaged premises shall not be deemed or taken to operate as a release or discharge of any other part of the lands included in such mortgage, but such other lands shall be and remain subject to the lien of the mortgage, and execution may be had thereof in the same manner as if the mortgage had originally included only such lands. Every such release shall be under hand and seal, and shall be acknowledged in the same manner as provided by law for the acknowledgment of deeds, and shall become effective upon the date of filing in the office of the recorder of deeds in and for the county in which such lands so released are situated.
11 Del. Laws, c. 612; Code 1915, § 3227; Code 1935, § 3690; 25 Del. C. 1953, § 2110; 49 Del. Laws, c. 80; 70 Del. Laws, c. 186, § 1.;
§ 2111. Satisfaction of mortgages; penalty; enforcement in Superior Court.
(a) Whenever the debt or duty secured by a mortgage or conveyance in the nature of a mortgage is satisfied or performed, the legal holder of such mortgage or conveyance at the time the satisfaction or performance is completed shall, within 60 days after satisfaction or performance is completed (including the payment of any required satisfaction fees), cause an entry of such satisfaction or performance to be made upon the record by the procedure enumerated in this subsection. The fee for entering such satisfaction or performance upon the record shall be paid by the debtor or obligor unless the mortgage or conveyance provides otherwise.
(1) A satisfaction of a mortgage or conveyance shall be made by recordation of either a satisfaction piece, if the instrument is presented in substantially the same form as set out in subsection (b) of this section and acknowledged in the same manner as provided by law for the acknowledgment of deeds, or an attorney's affidavit pursuant to § 2120 of this title. The satisfaction piece shall be presented to the recorder, and the recorder shall accept such document for recordation providing such document conforms to the requirements set out in subsection (b) of this section.
(2) If a full or partial release of the mortgage or conveyance is recorded, the recorder of deeds shall place a reference to a book and page number in the indices as to where the release is recorded.
(b) The following shall be a sufficient form of satisfaction piece as
authorized by paragraph (a)(1) of this section:
To: Recorder of Deeds This instrument prepared by:
.......... County Name: ............
State of Delaware Address: ............
Tax Parcel Identification Number: ..........
Property Address: .......... .
You are hereby requested and authorized to enter satisfaction of, and cancel
of record, the mortgage executed by ...................., mortgagor, to
...................., mortgagee, dated .........., ....., and recorded .........., ....., in your
office in Mortgage Record .........., at Page ........... › [and if applicable, Assigned by .................... to .................... and recorded in Assignment Record ....., Page
............]
INDIVIDUAL SIGNATURE AND ACKNOWLEDGEMENT
IN WITNESS WHEREOF, Mortgagee(s), [Assignee(s)] has(ve) hereunto set its/their
hand(s) and seal(s) this ..... day of .........., ......
.................... ……………….. .................... (Seal)
WITNESS MORTGAGEE
State of ..........
County of ..........
This instrument was acknowledged before me on (date) by (Name(s) of person(s).
………………………..............
(Signature of notarial officer)
(Seal, if any)
…………………………...........
(Title and rank)
My commission expires ............
SIGNATURE AND ACKNOWLEDGEMENT IN A REPRESENTATIVE CAPACITY
IN WITNESS WHEREOF, Mortgagee [Assignee] has hereunto set its hand and seal
this ..... day of ...................., ......
MORTGAGEE [ASSIGNEE] NAME
.................... BY: .......... (SEAL)
WITNESS ATTEST: ........ (SEAL)
State of ............
County of ..........
This Instrument was acknowledged before me on .......... (date), by .......... [name(s) of person(s)] as .......... [type of authority, e.g., officer, trustee, etc.] of .......... [name of party on behalf of whom instrument was executed].
..............................................
(Signature of notarial officer)
(Seal, if any)
………………………............
(Title and rank)
My commission expires ..........
(c) Each recorder shall either create and maintain a separate index and record of the recording of documents which are authorized to be recorded by this chapter including, but not limited to, powers of attorney to satisfy mortgages, satisfaction pieces, partial and complete releases of mortgages and security interests or index the same in the index used for recorded mortgages. If the recorder creates a separate index, it may be called the Release and Satisfaction Index, which shall reference the mortgagor, mortgagee, record book and page of the mortgage being released or satisfied and the address or lot number, if any, of the property being released or satisfied. The recorder may also maintain a separate record of said instruments and shall not be required to maintain other than a micrographic or electronic record of said instruments.
(d) If the legal holder of a mortgage fails to satisfy the mortgage in accordance with the requirements of subsection (a) of this section, the mortgagor, or that mortgager's agent, shall be entitled to submit a notice to the legal holder of the mortgage demanding that the mortgage be satisfied. The notice shall be sent by certified or registered mail, return receipt requested. The notice shall be sent to the legal holder of the mortgage at the address designated in the payoff statement, or to such other person and/or address as the legal holder may designate in the payoff statement. If:
(1) No payoff statement is received by the mortgagor or that mortgager's agent; or
(2) No address is provided in the payoff statement and the person issuing the notice has received no address to which to send such notices; or
(3) Payments are made electronically and no payment address is given by the legal holder; or
(4) Payment in satisfaction has been made at maturity or otherwise when due and without a payoff statement having been issued,
then the address for notice shall be deemed to be the last address used by the legal holder in written communications with the mortgagor, and the notice shall be sent to the attention of "Mortgage Satisfaction Department." A copy of such notice shall also be sent to the registered agent (if any) in the State of Delaware of the legal holder.
(e) Whoever, being the holder of a mortgage, wilfully fails to satisfy a mortgage upon the record as required by subsection (a) of this section shall be fined not more than $1,000 for each such failure together with assessed costs, for each failure, not to exceed $1,000.
(f) The recorder of deeds or the mortgage commissioner of the county in which any mortgage is recorded that has been satisfied or performed shall file a complaint with the Attorney General's office in said county against any mortgage holder who has not satisfied of record said mortgage within 60 days of its satisfaction or performance.
(g) The Superior Court shall have jurisdiction of offenses under this section.
Code 1852, § 1635; 22 Del. Laws, c. 205; Code 1915, § 3228; 37 Del. Laws, c. 243; Code 1935, § 3691; 45 Del. Laws, c. 229; 25 Del. C. 1953, § 2111; 55 Del. Laws, c. 341, § 4; 65 Del. Laws, c. 310, §§ 1, 2; 68 Del. Laws, c. 245, §§ 1-3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 543, §§ 1-8; 72 Del. Laws, c. 189, §§ 1-6; 75 Del. Laws, c. 307, §§ 1-4.;
§ 2112. Effect of satisfaction of mortgage by Regional Manager or Treasurer of Home Owners' Loan Corporation.
When any mortgage has been satisfied pursuant to a power of attorney executed by the Regional Manager or Regional Treasurer in the name of the Home Owners' Loan Corporation, in accordance with the provisions contained in § 108(a) of this title, the mortgage or conveyance shall be extinguished.
40 Del. Laws, c. 217; Code 1935, § 3675; 25 Del. C. 1953, § 2112; 70 Del. Laws, c. 186, § 1.;
§ 2113. Effect of entry of satisfaction.
An entry of satisfaction or performance made in accordance with this chapter shall extinguish the mortgage or conveyance, and the effect shall be the same as if such mortgage or conveyance had not been made.
Code 1852, § 1636; Code 1915, § 3229; Code 1935, § 3692; 25 Del. C. 1953, § 2113.;
§ 2114. Damages for nonentry of satisfaction.
If any person commits a default under § 2111 of this title, such person, that person's executors or administrators, or if it is a corporation, such corporation, in addition to the other penalties provided for shall be liable to the party by or on whose behalf the satisfaction or performance has been made or completed, in damages to be recovered by a civil action. The damages shall not be less than $10 nor more than $500, except when special damage to a larger amount is alleged in the complaint and proved.
Code 1852, § 1637; Code 1915, § 3230; Code 1935, § 3693; 25 Del. C. 1953, § 2114; 55 Del. Laws, c. 341, § 5; 70 Del. Laws, c. 186, § 1.;
§ 2115. Procedure to compel entry of satisfaction of mortgage or judgment.
(a) In all cases where mortgages or judgments are liens on real estate in this State and the same have been paid and the mortgagee or obligee or their executors, administrators or assigns refuses or neglects to enter satisfaction of such mortgage or judgment on the record thereof in the office where the same is recorded or entered, forthwith after the payment thereof, the mortgagor or obligor or their heirs or assigns may, upon sworn petition to the Superior Court of the county in which such mortgage or judgment is recorded or entered, setting forth the facts, obtain from such Court a rule on the mortgagee or obligee or their executors, administrators or assigns, returnable at such time as the Court may direct, requiring such mortgagee or obligee or their executors, administrators or assigns to appear on the day fixed by the Court and show cause, if they have any, why such mortgage or judgment shall not be marked satisfied on the record thereof. Such rule shall be served as provided by law for service of writs of scire facias. In case the mortgagee or obligee or their executors, administrators or assigns reside out of the State and cannot be served, or in case the mortgagee or obligee is a corporation which has been dissolved for more than 3 years prior to the filing of the petition, and for whom no trustee or receiver has been appointed, the rule shall be continued and a copy thereof shall be published by the sheriff in a newspaper of the county once each week for 4 successive weeks, and upon proof of such advertisement by affidavit of the sheriff made at the time to which such rule was continued, shall be deemed and considered sufficient service of such rule.
(b) Upon the return of the rule, if the Court is satisfied from the evidence produced that such mortgage or judgment, together with all interest and costs due thereon, has been satisfied and paid, the rule shall be made absolute, and the Court shall order and decree that the mortgage or judgment is paid and satisfied, and shall order and direct the recorder or the prothonotary, in whose office such mortgage or judgment is entered, to enter on the record thereof full and complete satisfaction thereof.
22 Del. Laws, c. 211, §§ 1, 2; Code 1915, § 3231; 29 Del. Laws, c. 237; Code 1935, § 3694; 25 Del. C. 1953, § 2115; 55 Del. Laws, c. 341, § 5.;
§ 2116. Reconveyance upon satisfaction or performance.
When a debt or duty, secured by a mortgage, or conveyance in the nature of a mortgage is satisified or performed, the person or corporation in whom the title under such mortgage or conveyance is, shall upon the reasonable request and at the proper cost of the mortgagor, that mortgagor's heirs or assigns, execute and acknowledge a sufficient reconveyance of the premises contained in such mortgage, or conveyance in the nature of a mortgage.
Code 1852, § 1638; Code 1915, § 3232; Code 1935, § 3695; 25 Del. C. 1953, § 2116; 70 Del. Laws, c. 186, § 1.;
§ 2117. Entry of partial payments on record; penalty for refusal; exceptions.
Repealed by 72 Del. Laws, c. 29, § 1, effective May 12, 1999.
§ 2118. Priority of mortgages and other instruments securing future advances and certain other advances; modifications of mortgages and other instruments.
(a) Any mortgage or other instrument given for the purpose of creating a lien on real property, when so expressed therein or when so expressed in a separate instrument or other agreement specifically referred to therein and incorporated by reference (which instrument or other agreement need not be recorded), may secure not only existing indebtedness, but also future advances, whether such advances are obligatory or to be made at the option of the lender, or otherwise, and whether made before or after default or maturity or other similar events, to the same extent as if such future advances were made on the date of the execution of such mortgage or other such instrument, although there may be no advance made at the time of the execution of such mortgage or other instrument and although there may be no indebtedness outstanding at the time any advance is made. Such lien, as to third persons with or without actual knowledge thereof, shall be valid as to all such indebtedness and future advances from the time the mortgage or other such instrument is recorded or filed in the proper office as provided by law. The total amount of the indebtedness having the priority established by such lien may decrease or increase from time to time, but the total unpaid principal balance at any 1 time shall not exceed the maximum principal amount of the obligation which must be specified in such mortgage or other such recorded instrument.
Any mortgage or other instrument to which this subsection applies, and all such existing indebtedness, future advances and interest thereon, shall have preference to and priority over any lien, other than those liens the priority of which is governed by § 2901 of this title, which is subsequent in time to the time such mortgage or other such instrument is recorded or filed in the proper office as provided by law.
(b) In addition to the stated indebtedness, a mortgage or other instrument given for the purpose of creating a lien on real property may secure disbursements and other advances thereunder for the payment of taxes, assessments, maintenance charges, insurance premiums or costs relating to the property encumbered by such mortgage or other instrument, for the discharge of liens having priority over the lien of such mortgage or other instrument, for the curing of waste of the property that is the subject of the lien, for the indemnification obligations regarding environmental liabilities of the property that is the subject of the lien, and for the payment of service charges and expenses incurred by reason of default, and including late charges, attorneys' fees and court costs, if such mortgage or other such instrument states that it shall secure any such advances and disbursements, together with all interest thereon.
Any mortgage or other instrument to which this subsection applies, and all such stated indebtedness, disbursements and other advances expressed therein and interest thereon, shall have preference to and priority over any lien, other than those liens the priority of which is governed by § 2901 of this title, which is subsequent in time to the time such mortgage or other such instrument is recorded or filed in the proper office as provided by law.
(c) Nothing in this section is intended to limit or restrict the obligations, indebtedness, liabilities, covenants, disbursements or advances that may be secured by any mortgage or other instrument given for the purpose of creating a lien on real property.
(d) The preference and priority of the lien of any mortgage or other such instrument given for the purpose of creating a lien on real property and all matters secured thereby shall extend to any and all future modifications thereof, or of the obligations secured by the mortgage or such other instrument, that have been recorded or filed in the proper office as provided by law, except for such modification as expressly increases the maximum principal amount that is specified in such mortgage or other such instrument or separate instrument or agreement referred to in subsection (a) of this section.
(e) Nothing herein shall be construed to limit any agreement between the lender and the borrower or other parties to any such mortgage or other such instrument given for the purpose of creating a lien on real property as to the time period for the repayment of such existing indebtedness, future advances, interest, service charges and disbursements as aforesaid, as to other obligations, advances or disbursements that are secured thereby or as to any other terms and conditions of such mortgages or other such instrument.
59 Del. Laws, c. 444, § 1; 65 Del. Laws, c. 32, §§ 1, 2; 70 Del. Laws, c. 254, § 1.;
§ 2119. Insurance requirements for mortgages.
(a) The mortgagee or obligee of any mortgage or other instrument given for the purpose of creating a lien on real property shall accept as evidence of insurance a written binder issued by any authorized insurer or its agent if the binder includes or is accompanied by:
(1) The name and address of the insured borrower;
(2) The name and address of the lender as loss payee;
(3) A description of the insured real property;
(4) A provision that the binder may not be cancelled within the term of the binder unless the lender and the insured borrower receive written notice of the cancellation at least 10 days prior to the cancellation;
(5) Except in the case of a renewal of a policy subsequent to the closing of the loan, a paid receipt for the full amount of the applicable premium; and
(6) The amount of insurance coverage.
A mortgagee or obligee may refuse to honor a binder in cases where the lender receives notice of the cancellation of the binder by the insurer; or, at the expiration of 30 days of the date the binder was given, the insurer has failed to issue the policy of insurance.
(b) The mortgagee or obligee of any mortgage or other instrument given for the purpose of creating a lien on real property shall not require hazard insurance in an amount which exceeds the greater of:
(1) The value placed on the improvements by the insurer; or
(2) The value placed on the improvements as determined by the lender's appraisal of the real property.
(c) In the event that subsection (a) or (b) of this section is wilfully violated, the original mortgagee or obligee listed upon the original mortgage or other instrument shall be obligated to pay to the mortgagor or obligor:
(1) Reasonable attorneys' fees; and
(2) The greater of the actual damages directly resulting from the violation or 5% of the face amount of the mortgage.
(d) A violation of this section shall not affect the validity of the mortgage or other instrument which creates the lien securing the loan.
(e) For purposes of this section, a "mortgage or other instrument given for the purpose of creating a lien on real property" shall mean a consumer purpose mortgage or other consumer purpose instrument given for the purpose of creating a lien. For purposes of this section, "consumer purpose mortgage" and "consumer purpose instrument given for the purpose of creating a lien" shall mean mortgages or other instruments given for the purpose of creating a lien encumbering 1-to-4 family residential properties, and shall not include mortgages or other instruments given for the purpose of creating a lien encumbering other multi-unit residential properties, such as apartment buildings, or encumbering office, commercial or industrial properties.
68 Del. Laws, c. 350, § 1; 77 Del. Laws, c. 434, § 1.;
§ 2120. Authorization to satisfy mortgage.
(a) An attorney authorized to practice law in the State who has paid in full or caused to be paid in full a debt owed by any debtor to any creditor holding a mortgage securing such debt and encumbering a property owned by the debtor, may, at any time after the expiration of 60 days after such debt has been paid in full, and after giving a minimum of 15 days' notice to said creditor, record with the recorder of deeds in the county in which such property is located, an affidavit and request which shall contain the following information:
(1) The mortgage record, volume and page of the mortgage proposed to be marked fully paid and satisfied;
(2) The full name and address of the original mortgagee;
(3) The name of the original mortgagor or mortgagors;
(4) The original date of the mortgage;
(5) The original amount of the mortgage;
(6) A satisfactory description of the property which is encumbered by the mortgage, including, but not limited to:
a. The property address and/or lot number;
b. Subdivision name, if any; and
c. The tax parcel number assigned to such property;
(7) The name of each entity to whom the mortgage was subsequently assigned, together with the dates and recording information of said assignments;
(8) The full name and address of the last mortgagee in interest which appears of record on the mortgage;
(9) The full name and address of the creditor or mortgage loan servicer who was fully paid;
(10) If the fully paid creditor or mortgage loan servicer is other than the last mortgagee of record on the date of full payment, a statement by the attorney whose signature appears on the affidavit that:
a. The attorney was provided with a written payoff statement by the creditor or mortgage loan servicer;
b. The attorney relied upon the written payoff statement; and
c. The attorney made payment or caused payment to be made of the outstanding debt to the creditor or mortgage loan servicer;
(11) If the mortgage secured a home equity or other consumer open line of credit, affiant attorney, where requested in writing by the mortgagee, shall, also in writing, instruct said mortgagee to close, effective upon the date and time of receipt of the mortgage "payoff figure," the open line of credit and that no additional funds are to be advanced under the open line of credit;
(12) The date on which the debt was fully paid;
(13) That at least 60 days have elapsed since the debt was fully paid;
(14) That the affiant attorney has fully paid or has caused to be fully paid the debt to the creditor or to the mortgage loan servicer and retains evidence of that payment;
(15) That after a minimum of 15 days' notice, by certified mail, return receipts requested, the mortgagee of record at the time of the full payment described in the affidavit, has failed to accomplish satisfaction of the mortgage in the mortgage record, volume and page in which such mortgage appears in the public records;
(16) That the attorney requests the recorder of deeds in the county in which such property is located to indicate in the property records of that county that such mortgage is fully paid and satisfied;
(17) That the attorney whose signature appears on said affidavit has personally reviewed all of the information and each of the facts contained in said affidavit and request; and
(18) That the information contained in said affidavit and request is true and correct to the best of the attorney's knowledge.
(b) The recorder of deeds, or a duly appointed deputy, in the county in which the debtor's property encumbered by such mortgage is located shall be authorized to cause said mortgage to be satisfied upon receipt of such affidavit and request by the attorney fully paying such debt.
(c) The recorder of deed's office may charge a fee for accepting and recording the affidavit and satisfying the mortgage.
(d) This section shall, in no way, limit the authority of the recorder of deeds to otherwise satisfy mortgages as provided by law.
(e) The following or substantially consistent revisions by the recorder
of deeds shall be a sufficient form of mortgage satisfaction affidavit
pursuant to this section:
STATE OF DELAWARE )
) SS.
NEW CASTLE COUNTY )
I, the undersigned, an attorney authorized to practice law in the State of
Delaware, after having first been duly sworn, depose and say as follows:
(1) The mortgage proposed to be marked fully paid and satisfied appears in
Mortgage Record ______, Volume ______, Page ______;
(2) The full name and address of the original mortgagee is ____________________;
(3) The name of the original mortgagor(s) is (are) ___________________________;
(4) The original date of the mortgage is ___________________________________;
(5) The original amount of the mortgage is ________________________________;
(6) A satisfactory description of the property which is encumbered by the
mortgage, including, but not limited to the following is:
a. The property address and/or lot number is _____________;
b. Subdivision name, if any, _______________________; and
c. The county tax parcel number assigned to such property is _____
_______________________________________________________________;
(7) After the original mortgage was recorded, the mortgage was subsequently
assigned of record to each of the following entities on the date and at the
book and page there noted:
to ______ on ______ at Book/Volume ______ and Page No. ______
to ______ on ______ at Book/Volume ______ and Page No. ______
to ______ on ______ at Book/Volume ______ and Page No. ______
to ______ on ______ at Book/Volume ______ and Page No. ______
(8) The full name and address of the last mortgagee in interest on the
mortgage is ____________________________________________________;
(9) The full name and address of the creditor or mortgage loan servicer who
was fully paid is ________________________________________________;
(10) ______________________________, who is the creditor or mortgage loan
servicer that was fully paid is other than ______________________________, the last mortgagee in interest which appeared of record on the date of said payment. I did, however, obtain a written payoff statement from the creditor or mortgage loan servicer on account of said mortgage, and, in accordance with and in reliance on the payoff statement, I made payment or caused payment to be made of the outstanding debt to the creditor or mortgage loan servicer;
(11) I have, where applicable, instructed the mortgagee, in writing, effective
the date and time of receipt of the mortgage "payoff figure", to close and
decline any further advances on the home equity or other consumer open line of
credit which was secured by the affected mortgage;
(12) The date on which the debt was fully paid is __________________________;
(13) At least 4 months have elapsed since the debt was fully paid and the
amount of the debt so paid is not in dispute;
(14) I fully paid or caused to be fully paid such debt to the creditor or
mortgage loan servicer and I retain evidence of that payment;
(15) After a minimum of 15 days' notice by me, by certified mail, return
receipt requested, the last mortgagee in interest has failed to take
appropriate steps to accomplish satisfaction of the mortgage in the mortgage
record, volume and page where such mortgage appears in the public records;
(16) I request the Recorder of Deeds in __________________ County to indicate
in the record of said County that such mortgage is fully paid and satisfied;
(17) I have personally reviewed all of the information and each of the facts contained in this affidavit and request; and
(18) The information contained in this affidavit and request is true and correct to the best of my knowledge.
(f) An affidavit given in the form above shall be notarized by a notary public.
69 Del. Laws, c. 465, § 1; 71 Del. Laws, c. 190, §§ 1-7; 75 Del. Laws, c. 307, § 5.;
§ 2121. Instruments transferring, pledging or assigning lessors' interests in leases or rents arising from real property as security.
(a) Upon recording, in the office of the recorder of deeds in and for the county where the real property lies, of any instrument transferring, pledging or assigning the lessor's interest in leases (whether in existence or thereafter existing) of or rents (including security deposits) arising from real property as conditional or unconditional security for a debt or duty, the interest of the transferee, pledgee or assignee shall be fully perfected as to the transferor, pledgor or assignor and as to all third parties without the necessity of furnishing further notice to the transferor, pledgor or assignor or any lessee, of obtaining possession of the real property, of impounding the rents or security deposits, of filing a financing statement under the Delaware Uniform Commercial Code, of securing the appointment of a receiver, or of taking any other affirmative action, and such interest shall have priority according to the time of recording the instrument in the proper office, without respect to the time of its being signed and delivered.
(b) Except as may be provided in the lease or other agreement by which it is bound, the lessee under any such lease identified in subsection (a) of this section is authorized to pay the transferor, pledgor or assignor, rents and security deposits until the lessee receives written notification that rents due or to become due have been transferred, pledged or assigned and that payment is to be made to the transferee, pledgee or assignee. A notification that does not reasonably identify the rents transferred, pledged or assigned is ineffective. If requested by the lessee, the transferee, pledgee or assignee must furnish reasonable proof that the assignment has been made and is in full force and effect and unless so furnished the lessee may pay the transferor, pledgor or assignor.
(c) Whenever the debt or duty secured by an instrument described in this section is satisfied or performed, and to the extent such instrument is not self-terminating, upon such an event, the transferee, pledgee or assignee shall forthwith cause to be recorded in the office in which the instrument is recorded a document pursuant to which it declares that the instrument is terminated. The recording of such document shall extinguish the instrument and the effect shall be the same as if such instrument had not been made.
(d) Any recorded instrument transferring, pledging or assigning an interest in leases of or rents arising from real property shall be duly perfected as herein provided, except that nothing herein shall alter, change or modify any perfected order of priority of interests in such leases or rents which exists on the date that this legislation is enacted.
70 Del. Laws, c. 253, § 1.;
§ 2122. Procedure to strike an entry of satisfaction or other indication of a mortgage satisfaction.
(a) When entry of satisfaction, recordation of a mortgage satisfaction piece or other indication of a mortgage satisfaction has been made upon the record through inadvertence, error or mistake, any person or party affected by such inadvertence, error or mistake may, upon sworn petition to the Superior Court of the county in which such mortgage was recorded, setting forth the facts, obtain from such Court a rule on the mortgagor or obligor or their heirs, executors, administrators or assigns, returnable at such time as the Court may direct, requiring such mortgagor or obligor or their heirs, executors, administrators or assigns to appear on the day fixed by the Court and show cause, if they have any, why the entry of satisfaction or other indication of a mortgage satisfaction should not be stricken. Such rule shall be served as provided by law for service of writs of scire facias. In case the mortgagor or obligor or their heirs, executors, administrators or assigns reside out of the State and cannot be served, or in case the mortgagor or obligor is a corporation which has been dissolved for more than 3 years prior to the filing of the petition, and for whom no trustee or receiver has been appointed, the rule shall be continued and a copy thereof shall be published by the sheriff in a newspaper of the county once each week for 4 successive weeks, and upon proof of such advertisement by affidavit of the sheriff made at the time to which such rule was continued, shall be deemed and considered sufficient service of such rule.
(b) Upon the return of the rule, if the Court is satisfied from the evidence produced that entry of satisfaction or other indication of a mortgage satisfaction had been made upon the record of such mortgage through inadvertence, error or mistake, the rule shall be made absolute, and the Court shall order and decree that the entry of satisfaction or other indication of a mortgage satisfaction of such mortgage shall be stricken as if such satisfaction or other indication of a mortgage satisfaction had not been made.
(c) Upon the issuance of an order striking an entry of satisfaction or other indication of a mortgage satisfaction, the party who obtains such order shall forthwith file with the recorder of deeds a certified copy of said order. The recorder shall at once record said order and make a proper note of the same in the indices. The recorder shall collect recording fees upon receipt of the instrument as provided for in § 9607 of Title 9.
72 Del. Laws, c. 141, § 1.;
§ 2123. Satisfaction of mortgage after lapse of time.
(a) Any consumer purpose mortgage or consumer purpose deed of trust having the effect of a mortgage (hereinafter "mortgage") that is unsatisfied upon the public records and remains a lien on any real estate may be satisfied pursuant to the procedures set forth in subsection (b) of this section:
(1) After the lapse of 20 years from the date for the maturity of such lien set forth in such mortgage, or in any modification, extension or continuance thereof duly recorded in like manner and place; or
(2) In the absence of any fixed or ascertainable maturity date stated in such mortgage or any such modification, extension or continuance thereof, after the lapse of 50 years from the latest of the date of recording the mortgage or of any modification; extension or continuance thereof (as the case may be).
(b) An attorney authorized to practice law in the State of Delaware shall be authorized to satisfy a mortgage that remains a lien pursuant to subsection (a) of this section above, provided the following procedures are followed:
(1) Written notice, by certified mail, return receipt requested, must be sent to the last mortgagee of record as defined below requesting that the mortgage be immediately satisfied or that the last mortgagee of record notify the attorney, by certified mail, return receipt requested, within 60 days of the mailing of said notice, that the obligation secured by the mortgage has not been satisfied or performed pursuant to § 2111(a) of this title. The last mortgagee of record shall mean the legal holder of the mortgage and at the address which appears upon the recorded mortgage, or any assignment, modification, extension or continuance thereof, or counsel of record for the legal holder of the mortgage duly recorded in like manner or place, or if such addresses are not ascertainable from the public records, at the last known available or reasonably ascertainable address of the last mortgagee of record or if none, addressed care of the Office of the Delaware Bank Commissioner.
(2) If the mortgage remains unsatisfied for an additional period of 60 days after the above notice has been mailed, and during such time the attorney has not received any notification from the last mortgagee of record that the obligation secured by the mortgage has not been satisfied or performed pursuant to § 2111(a) of this title, the attorney may file an affidavit of satisfaction in the form set forth in subsection (c) of this section below.
(c) An affidavit of satisfaction permitted under this section shall contain the following information:
(1) The mortgage record, volume and page, instrument number or other recording data of the mortgage proposed to be marked fully paid and satisfied;
(2) The name of the original mortgagee, as the same appears in the mortgage;
(3) The name of the original mortgagor or mortgagors, as the same appears in the mortgage;
(4) The original date of the mortgage (if specified therein);
(5) The original principal amount of the mortgage (if specified therein);
(6) The name of each assignee to whom the mortgage was subsequently assigned of record, together with the dates and recording information of said assignments;
(7) The full name and address of the last mortgagee of record;
(8) A statement by the attorney that:
a. Such attorney has sent the notice required by paragraph (b)(1) of this section;
b. Such attorney has not received from the last mortgagee of record notice that the obligation secured by the mortgage has not been satisfied or performed pursuant to § 2111(a) of this title;
c. After passage of the period of time specified in paragraph (b)(2) of this section, the mortgage has not been satisfied; and
d. The attorney has reason to believe that the mortgage is a consumer purpose mortgage or consumer purpose deed of trust;
(9) That the attorney requests the recorder of deeds in the county in which the mortgage is recorded to indicate in the property records of that county that such mortgage is fully paid and satisfied;
(10) That the attorney whose signature appears on said affidavit has personally reviewed all of the information and each of the facts contained in said affidavit and request; and
(11) That the information contained in said affidavit and request is true and correct to the best of the attorney's knowledge.
(d) The recorder of deeds, or a duly appointed deputy, in the county in which the mortgage is recorded shall be authorized to cause said mortgage to be satisfied upon the receipt of such affidavit and request by the attorney.
(e) The recorder of deeds office may charge a fee for accepting and recording the affidavit and satisfying the mortgage.
(f) An affidavit filed pursuant to this section does not in itself extinguish any obligation secured by the mortgage that is the subject of the affidavit. An attorney who files an affidavit pursuant to subsection (c) of this section is not liable to any person if the attorney complied with this section and the last mortgagee of record did not respond in a timely manner to the notification pursuant to paragraph (b)(1) of this section.
(g) This section shall in no way limit the authority of the recorder of deeds to otherwise satisfy mortgages as provided by law.
(h) This section does not supplant any other remedy or process available for the satisfaction or release of mortgages.
(i) The provisions of this section will be effective on December 24, 2006, and shall apply to all mortgages as defined in subsection (j) of this section.
(j) For purposes of this section, "consumer purpose mortgage" and "consumer purpose deed of trust" shall mean mortgages or deeds of trust securing debt incurred primarily for personal, family or household purposes and encumbering only 1-to-4-family residential properties, and shall not include mortgages or deeds of trust encumbering any other properties, including multi-unit residential properties such as apartment buildings, office, commercial or industrial properties.
75 Del. Laws, c. 307, § 6.;