§ 34-26-8 - Release of mortgage – Affidavit.
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 realproperty located in the State of Rhode Island.
(2) "Person" means an individual, corporation, businesstrust, 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, ifthe mortgage has been assigned of record. "Mortgagee" means the last person towhom the mortgage has been assigned of record; provided further, if themortgage has been serviced by a mortgage servicer, "Mortgagee" means themortgage servicer;
(5) "Mortgage servicer" means the last person to whom themortgagor 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 themortgage servicer with respect to the mortgage described in that payoffstatement;
(6) "Attorney-at-law" means any person admitted to practicelaw in this state and in good standing;
(7) "Title insurance company" means any corporation or otherbusiness entity authorized and licensed to transact the business of insuringtitles to interests in real property in this state; and
(8) "Payoff statement" means a written statement of theamount of the unpaid balance on a mortgage, including principal, interest andother charges properly assessed pursuant to the loan documentation of suchmortgage and of the interest on a per diem basis with respect to the unpaidprincipal balance of the mortgage.
(b) If a mortgagee fails to execute and deliver a release ofmortgage to the mortgagor or to the mortgagor's designated agent within thirty(30) days from receipt of payment of the mortgage by the mortgagee inaccordance with the payoff statement furnished by the mortgagee, anyattorney-at-law or duly authorized officer of a title insurance company may, onbehalf of the mortgagor or any transferee of the mortgagor who has acquiredtitle to the premises described in the mortgage, execute and cause to berecorded in the land records of each city or town where the mortgage wasrecorded, 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 authorizedofficer of a title insurance company, and that the affidavit is made in behalfof and at the request of the mortgagor;
(2) The mortgagee has provided a payoff statement withrespect to the loan secured by the mortgage;
(3) The affiant has ascertained that the mortgagee hasreceived payment of the loan secured by the mortgage in accordance with thepayoff statement, as evidence by a bank check, certified check or attorney'sclients' funds account which has been negotiated by the mortgagee or by otherdocumentary evidence of such receipt of payment by the mortgagee;
(4) More than sixty (60) days have elapsed since payment wasreceived 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 signedfor and completed, of intention to execute and cause to be recorded anaffidavit in accordance with this section with a copy of the proposed affidavitattached to such written notice, and that the mortgagee has not responded inwriting to such notification, or that any request for additional payment madeby the mortgagee has been complied with at least fifteen (15) days prior to thedate of the affidavit.
(d) Such affidavit shall state the names of the mortgagor andthe mortgagee, the date of the mortgage, and the volume and page of the landrecords where the mortgage is recorded. The affidavit shall give similarinformation with respect to any recorded assignment of the mortgage.
(e) The affiant shall attach to the affidavit:
(i) Photostatic copies of the documentary evidence thatpayment has been received by the mortgagee, including mortgagee's endorsementof any bank check, certified check or attorney's clients' funds account,
(ii) A photostatic copy of the written payoff statement andshall 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 thelien of such mortgage of the property described therein.
(g) The city or town clerk shall index the affidavit in thename of the mortgagor as grantor.
(h) Any person who causes an affidavit to be recorded in theland records of any city or town in accordance with this section knowing theinformation and statements therein contained to be false may be fined not morethan a dollar amount that is double the face amount of the mortgage falselydischarged and shall make restitution to the affected mortgagee to the extentsuch mortgagee suffers direct financial loss due to said mortgage being falselydischarged.
(i) The provisions of this section shall not be applicable tomortgages securing lines of credit nor to any mortgage held by a financialinstitution incorporated under the laws of the state of Rhode Island or to anymortgage held by any financial institution organized under federal laws andmaintaining a principal place of business within the state of Rhode Island orto any mortgage held by the Rhode Island Housing and Mortgage FinanceCorporation.