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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 2397 By: Russ
AS INTRODUCED
An Act relating to mortgage releases and liens on
real property; amending Section 1, Chapter 222,
O.S.L. 2015 (36 O.S. Supp. 2020, Section 5008), which
relates to release of mortgage affidavits by title
insurance officer or agent ; removing the requirement
that a written approval of the title insurance
company shall appear on the affidavit if executed by
an agent; and providing an effective da te.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY Section 1, Chapter 222, O.S.L.
2015 (36 O.S. Supp. 2020, Section 5008), is amended to read as
follows:
Section 5008. A. As used in this s ection:
1. "Mortgage" means a contract lien on an interest in real
property;
2. "Mortgagee" means:
a. the grantee of a mortgage,
b. if a mortgage has been assigned of record, the last
person or entity to whom the mortgage or lien has been
assigned of record, or
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c. if a mortgage is serviced by a mortgage servicer, the
mortgage servicer;
3. "Mortgage servicer" means the last person or entity to whom
a mortgagor has been instructed by a mortgagee to send payments for
the loan secured by a mortgage or lien. A person or entity
transmitting a payoff statement is considered the mortgage servicer
for the mortgage or lien described in the payoff statement;
4. "Mortgagor" means the grantor of a mortgage;
5. "Payoff statement" means a statement of the amount of:
a. the unpaid balance of a loan secured by a mortgage or
lien, including principal, interest, and other charges
properly assessed under the loan documentation of the
mortgage or lien, and
b. interest on a per diem basis for the unpaid balance;
and
6. "Title insurance company " means a corporation or other
business entity authorized and licensed to transact business of
insuring titles to interests in real property in this state.
B. This section applies only to a mortgage or lien on property
consisting exclusively of all real property including commercial
agriculture or a one- to four-family residence, including a
residential unit in a condominium regime.
C. If a mortgagee or lienholder fails to execute and deliver a
release of mortgage or lien to the mortgagor or designated agent of
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the mortgagor within sixty (60) days after the date of receipt of
payment of the mortgage by the mortgagee or lienholder in accordance
with a payoff statement furnished by the mortgagee or lienholder or
its mortgage servicer, an authorized officer of a title insurance
company or a duly appointed agent of the title insurance company, on
behalf of the mortgagor or a transferee of the mortgagor who
acquired title to the property described in the mortgage, may
execute and record an af fidavit in the real property records of each
county in which the mortgage or lien was recorded. The written
approval signature of the agent of the title insurance company shall
appear on the affidavit if executed by an agent .
D. An affidavit executed und er this section shall state that:
1. The affiant is an authorized officer or a duly appointed
agent of a title insurance company;
2. The affidavit is made on behalf of the mortgagor or a
transferee of the mortgagor who acquired title to the property
described in the mortgage;
3. The mortgagee or lienholder provided a payoff statement with
respect to the loan secured by the mortgage or lien;
4. The affiant has ascertained that the mortgagee or lienholder
has received payment of the loan secured by the mo rtgage or lien in
accordance with the payoff statement, as evidenced by:
a. a bank check, certified check, cashier 's check, escrow
account check from the title company or title
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insurance agent or attorney trust account check that
has been negotiated by the mortgagee or lienholder,
b. wire transfer, or
c. another documentary evidence of the receipt of payment
by the mortgagee or lienholder;
5. More than sixty (60) days have elapsed since the date
payment was received by the mortgagee or lienholder;
6. The title insurance company or its duly appointed agent has
given the mortgagee or lienholder at least fifteen (15) days ' notice
in writing by certified mail, return receipt requested, of its
intention to execute and record an affidavit in accordance with this
section, with a copy of the proposed affidavit attached to the
written notice; and
7. The mortgagee or lienholder has not responded in writing to
the notification at least fifteen (15) days before the affidavit is
recorded.
E. The affidavit must include the names of the mortgagor and
the mortgagee or lienholder, the date of the mortgage, the legal
description of the property, and the book and page or clerk 's
document number of the real property records where the mortgage
mortgage/lien and/or modification is recorded, together with similar
information for a recorded assignment of the mortgage or lien.
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F. The affiant shall attach to the affidavit a photostatic
copy, certified by the affiant as a true copy of the original
document, of:
1. The documentary e vidence that payment has been received by
the mortgagee or lienholder, including the endorsement of the
mortgagee or lienholder of a negotiated check if paid by check or
proof of a wire transfer if paid by wire. The bank account number
and routing number on the check or proof of wire transfer may be
redacted by the filer; and
2. The payoff statement.
G. An affidavit that is executed and recorded as provided by
this section shall operate as a release of the mortgage or lien
described in the affidavit.
H. The county clerk shall index the affidavit against the real
property described in the mortgage or lien and the affidavit.
I. A person who knowingly causes an affidavit with false
information to be executed and recorded under this section is liable
for the penalties for filing a false affidavit, including the
penalties for commission of offenses pursuant to the appropriate
section of the penal code, and to a party injured by the affidavit
for actual damages of Five Thousand Dollars ($5,000.00), whichever
is greater. The Attorney General may sue to collect the penalty.
If the Attorney General or an injured party bringing suit
substantially prevails in an action under this subsection, the court
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may award reasonable attorney fees and court costs to the preva iling
party.
J. Nothing provided for in this section shall preclude the
mortgagor from availing itself of the remedies provided for in
Section 15 of Title 46 of the Oklahoma Statutes which provides for
penalties against the mortgagee or lienholder for failure to release
a mortgage or lien pursuant to the payment in full and request for
release on behalf of the mortgagor.
SECTION 2. This act shall become effective November 1, 2021.
58-1-7191 JL 01/19/21