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SENATE FLOOR VERSION
March 30, 2021
ENGROSSED HOUSE
BILL NO. 2397 By: Russ of the House
and
Howard of the Senate
An Act relating to mortgage releases and liens on
real property; amending Section 1, Chapter 222,
O.S.L. 2015 (36 O.S. Su pp. 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 date.
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 section:
1. "Mortgage" means a contract lien on an interest in real
property;
2. "Mortgagee" means:
a. the grantee of a mortgage,
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b. if a mortgage has been assigned of record, the last
person or entity to whom the mortgage or judgment lien
has been assigned of record, or
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 judgment lien. A person or entity
transmitting a payoff statement is considered the mortgage servicer
for the mortgage or judgment 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
judgment lien, including principal, interest, and
other charges properly assessed under the loan
documentation of the mortgage or judgment 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 judgment lien on
property consisting exclusively of all real property including
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commercial or agriculture or a one- to four-family residence,
including a residential unit in a condominium regime.
C. If a mortgagee or judgment lienholder fails to execute and
deliver a release of mortgage or judgment lien to the mortgagor or
designated agent of the mortgagor within sixty (60) days after the
date of receipt of payment of the mortgage by the mortgagee or
judgment lienholder in accordance with a payoff statement furnished
by the mortgagee or judgment 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 prope rty
described in the mortgage, may execute and record an affidavit in
the real property records of each county in which the mortgage or
judgment lien was recorded. The written approval signature of the
agent of the title insurance company or attorney shall appear on the
affidavit if executed by an agent .
D. An affidavit executed under this section shall state that:
1. The affiant is an authorized officer or a duly appointed
agent of a title insurance c ompany;
2. The affidavit is made on behalf of the mo rtgagor or a
transferee of the mortgagor who acquired title to the property
described in the mortgage;
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3. The mortgagee or judgment lienholder provided a payoff
statement with respect to the loan secure d by the mortgage or
judgment lien;
4. The affiant has ascertained that the mortgagee or judgment
lienholder has received payment of the loan secured by the mortgage
or judgment 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
insurance agent or attorney trust account check that
has been negotiated by the mortgagee or judgment
lienholder,
b. wire transfer, or
c. another documentary evidence of the receipt of payment
by the mortgagee or judgment lienholder;
5. More than sixty (60) days have elapsed since the date
payment was received by the mortgagee or judgment lienholder;
6. The title insurance company or its duly appointed agent has
given the mortgagee or judgment 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 att ached to
the written notice; and
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7. The mortgagee or judgment 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 judgment 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 or
lien and/or modification is recorded, together with similar
information for a recorded assignment of the mortgage or judgment
lien.
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 evidence that payment has been received by
the mortgagee or judgment lienholder, including the endorsement of
the mortgagee or judgment 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 fil er; 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 judgment
lien described in the affidavit.
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H. The county clerk shall index the affidavit against the real
property described in the mortgage or judgment 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, inclu ding 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), which ever
is greater. The Attorney General may sue to col lect the penalty.
If the Attorney General or an injured party bringing suit
substantially prevails in an action under this subsection, the court
may award reasonable attorney fees and court costs to the prevailing
party.
J. Nothing provided for in this s ection 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 judgment lienholder for failure
to release a mortgage or judgment 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.
COMMITTEE REPORT BY: COMMITTEE ON J UDICIARY
March 30, 2021 - DO PASS