35-03 Mortgage of Real Property

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CHAPTER 35-03MORTGAGE OF REAL PROPERTY35-03-01. Mortgage of real property must be in writing - Formalities necessary. Amortgage of real property can be created, renewed, or extended only by writing, executed with the formalities required in the case of a grant of real property.35-03-01.1. Definitions.1.A mortgage is a contract by which specific real property capable of being transferred is hypothecated for the performance of an act without requiring a change in possession, and includes a transfer of an interest in real property, other than a trust, made only to secure the performance of an act.2.A power of sale under a mortgage of real property is a trust and can be executed only in the manner prescribed by the laws of this state governing the foreclosure of mortgages. Such a power may be conferred by a mortgage upon the mortgagee, or any other person, to be exercised after a breach of the obligation for which the mortgage is a security.35-03-01.2. Nature, extent, and effect of lien - Security not to be impaired.1.A mortgage is a lien upon everything that would pass by a grant of the property, and upon nothing more.2.A mortgage is a lien upon the property mortgaged in the hands of everyone claiming under the mortgagor subsequently to its execution, except purchasers and encumbrancers in good faith without notice and for value.3.Real property held adversely to the mortgagor may be mortgaged, and such a mortgage takes effect from the time at which the mortgagor or one claiming under the mortgagor obtains possession of the property and has precedence over every lien upon the mortgagor's interest in the property created subsequently to the recording of the mortgage.4.Title acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as security for the debt in like manner as if acquired before the execution.5.In the absence of an express covenant, a mortgage does not bind the mortgagor personally to perform the act for the performance of which it is a security.6.A mortgage does not entitle the mortgagee to the possession of the property, but after the execution of a mortgage, the mortgagor may agree to the change of possession without a new consideration.7.The assignment of a debt secured by a mortgage carries the security with it.8.No person whose interest is subject to the lien of a mortgage may do any act which will substantially impair the mortgagee's security.35-03-01.3.Mortgages insured or guaranteed by the United States veterans'administration - Notice.The following statement must be signed at the time of the loanapplication by both the borrower and lender on loans that are insured or guaranteed by the United States veterans' administration:I understand that the veterans' administration may attempt to hold me liable for the guarantee it offers the lending institution on this mortgage. I understand that it may bePage No. 1alleged that I may remain liable for the amount guaranteed by the veterans' administration if this mortgage is foreclosed or if the property is sold by me without first obtaining an approved release of liability from the veterans' administration.I alsounderstand that it may be alleged that North Dakota law governing deficiency judgments may not apply to the collection of loans guaranteed by the veterans' administration. By signing this statement, I am indicating that the contents of this statement have been explained to me by a loan officer representing the lending institution offering this mortgage loan.35-03-02.Acknowledgment, certification, and recordation.Mortgages of realproperty may be acknowledged or proved, certified, and recorded in like manner and with like effect as grants of real property.35-03-03. Power of attorney to execute mortgages - Requisites. A power of attorneyto execute a mortgage must be in writing subscribed, acknowledged or proved, certified, and recorded in like manner as powers of attorney for grants of real property.35-03-04.Prerequisites for recordation - Post-office address of mortgagee orassignee.The recorder may not record a mortgage of real property unless the mortgagecontains the post-office address of the mortgagee.An assignment of a mortgage on realproperty which does not contain the post-office address of the assignee may not be received for record.35-03-05. Form of real estate mortgage. A mortgage of real property may be made insubstantially the following form:NORTH DAKOTA STANDARD FORMTHIS INDENTURE, Made this ____________ day of __________ A.D. Two thousand____________________ between _____________ whose post-office address is _________ of the county of ______________ and state of North Dakota, part ___________ of the first part, and ______________ whose post-office address is _______________________ of the county of ____________ and state of North Dakota, party of the second part:WITNESSETH, That the said part ____________ of the first part, for and in considerationof the sum of _____________ dollars to ____________ in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, do ____________ by these presents grant, bargain, sell, and convey to the said party of the second part, _____________ heirs, executors, administrators, successors, and assigns, forever, all the following described real estate in the county of ____________ and state of North Dakota, described as follows, to wit: __________ __________________ _______________________________________________________________________________TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments andappurtenances thereunto belonging or in anywise appertaining, unto the said party of the second part, _________________ heirs, executors, administrators, successors, and assigns, FOREVER. And the said part ____________ of the first part, do _______________ covenant with the said party of the second part, ____________ heirs, executors, administrators, successors, and assigns, as follows: That __ he ___ ha ______ good right to convey the same, that the same are freefromallencumbrances _____________________________________________________________and that the said party of the second part, __________ heirs, executors, administrators, successors, and assigns, shall quietly enjoy and possess the same, and that the said part ____________ of the first part will warrant and defend the title to the same against all lawful claims, hereby relinquishing and conveying all right of homestead, and all contingent claims and rights whatsoever in and to the said premises.PROVIDED, NEVERTHELESS, That if the said part ___________ of the first part,____________ heirs, executors, or administrators, shall well and truly pay, or cause to be paid,Page No. 2to the said party of the second part, ____________ heirs, executors, administrators, successors, or assigns, the sum of ______________ dollars and interest according to the conditions of ____________note_____________ofevendateherewith,asfollows:____________________________________ ______________________________________________________________________________ ______________________________________________________________________________payable at the _______________________________________ with interest from date until maturity, at the rate of _________________ percent, per annum, payable ___________ annually and shall also keep and perform all and singular the covenants and agreements herein contained, then this deed to be null and void, and the premises hereby conveyed to be released at the cost of the said part _____________ of the first part; otherwise to remain in full force and effect.And the said part __________ of the first part do ___________ covenant and agree withthe said party of the second part, ___________ heirs, executors, administrators, successors, and assigns to pay the said sum of money and interest thereon as above specified; to pay as a part of the debt hereby secured, in case of each or any foreclosure or commencement of foreclosure of this mortgage, all costs and expenses and statutory attorney's fees in addition to all sums and costs allowed in that behalf by law; to permit no waste, and to do or permit to be done, to said premises, nothing that may in any manner impair or weaken the security under this mortgage; to pay all taxes or assessments that may be assessed against or be a lien on said premises, or any part thereof, or upon this mortgage or note ____________ or the legal holder thereof, before the same shall become delinquent; to keep the buildings on said premises insured for ____________ dollars, in companies acceptable, with loss payable to the mortgagee or __________ assigns; and in case of failure so to pay said taxes or assessments, or any of the agreements hereunder, or in case there exists any claim, lien, or encumbrance upon said premises, which is prior to this mortgage, the said party of the second part, ____________ heirs, executors, administrators, successors, or assigns may at ____________ option, pay and discharge such taxes or other obligation, and the sum or sums of money which may so be paid, with interest from the time of payment at the same rate as said principal sum, shall be deemed and are hereby declared to be a part of the debt secured by this mortgage and shall be immediately due and payable. It is further agreed and understood that this mortgage shall also cover any renewal note for the above described indebtedness or any portion thereof.But if default shall be made in the payment of said sum of money, or interest, or thetaxes, or any part thereof, at the time and in the manner hereinbefore or hereinafter specified for the payment thereof, the said part ____________ of the first part, in such cases do _______ hereby authorize and fully empower the said party of the second part, _________ heirs, executors, administrators, successors, or assigns, to sell the said hereby granted premises and convey the same to the purchaser, in fee simple agreeably to the statute in such case made and provided, and out of the moneys arising from such sale to retain the principal and interest which shall then be due on said note ____________, and all taxes upon said lands, together with all costs and charges, and statutory attorney's fees, and pay the overplus if any to the said part ____________ of the first part, _____________ heirs, executors, administrators, or assigns, And if default be made by the part ____________ of the first part in any of the foregoing provisions it shall be lawful for the party of the second part, ____________ heirs, executors, administrators, successors, or assigns or ____________ attorney to declare the whole sum above specified to be due.IN TESTIMONY WHEREOF, The said part ___________ of the first part ha ___hereunto set ______ hand ______ the day and year first above written. Signed and delivered in presence of___________________________________________________________________________________________________________________________________________________35-03-05.1. Recording and filing assignment of mortgage - Notice to whom. Anassignment of a mortgage may be recorded or filed in the same manner as a mortgage, and thePage No. 3record thereof operates as notice to all persons subsequently deriving title to the mortgage from the assignor. When the mortgage is executed as security for money due or to become due on a promissory note, bond, or other instrument designated in the mortgage, the record of the assignment of the mortgage is not of itself notice to a mortgagor or a mortgagor's heirs or personal representatives so as to invalidate any payment made by them or either of them to the person holding such note, bond, or other instrument.35-03-06. Fee for recording mortgage - Standard form not mandatory. 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North Dakota Codes and Statutes

35-03 Mortgage of Real Property