Real Property – Mortgage Satisfaction – South Dakota
Assignments Generally: Lenders, or holders of mortgages or deeds of trust, often assign mortgages or deeds of trust to other lenders, or third parties. When this is done the assignee (person who received the assignment) steps into the place of the original lender or assignor. To effectuate an assignment, the general rules is that the assignment must be in proper written format and recorded to provide notice of the assignment.
Satisfactions Generally: Once a mortgage or deed of trust is paid, the holder of the mortgage is required to satisfy the mortgage or deed of trust of record to show that the mortgage or deed of trust is no longer a lien on the property. The general rule is that the satisfaction must be in proper written format and recorded to provide notice of the satisfaction. If the lender fails to record a satisfaction within set time limits, the lender may be responsible for damages set by statute for failure to timely cancel the lien. Depending on your state, a satisfaction may be called a Satisfaction, Cancellation, or Reconveyance. Some states still recognize marginal satisfaction but this is slowly being phased out. A marginal satisfaction is where the holder of the mortgage physically goes to the recording office and enters a satisfaction on the face of the the recorded mortgage, which is attested by the clerk.
South Dakota Law
Assignment: An assignment must be in writing and recorded.
Demand to Satisfy: Following full payoff, mortgagor may demand in writting that mortgagee satisfy the mortgage of record, whereupon mortgagee has 10 days to do so or suffer penalty and potential liability (see below).
Recording Satisfaction: Instruments entitled to be recorded must be recorded by the register of deeds of the county in which the real property affected thereby is situated.
Penalty: If, following full repayment, mortgagee does not satisfy mortgage of record within 10 days of written request of mortgagor, mortgagee becomes liable for all damages mortgagor may have sustained thereby, including his attorney’s fees and an additional penalty in the sum of one hundred dollars.
Acknowledgment: An assignment or satisfaction must contain a proper South Dakota acknowledgment, or other acknowledgment approved by Statute.
South Dakota Statutes
43-28-1. Recording of instruments affecting real estate with register of deeds.
Recording of instruments affecting real estate with register of deeds. Any instrument affecting the title to or possession of real property may be recorded as by law provided. Instruments entitled to be recorded must be recorded by the register of deeds of the county in which the real property affected thereby is situated.
44-3-8. Satisfaction of lien — Execution of discharge or release by holder — Damages for failure to execute and deliver satisfaction — Attorney fees — Additional penalty.
Whenever any mortgage, pledge, or other lien of any kind has been satisfied either by payment, foreclosure, or other legal means, the holder of such lien shall, within thirty days of satisfaction, deliver a sworn satisfaction to the debtor. However, immediately upon satisfaction of a lien or at any time thereafter, if the owner of the property makes written demand on the lienholder, the lienholder shall, within ten days of receipt, execute and deliver to the debtor a sufficient sworn satisfaction to cancel the lien or any record thereof. If the lienholder fails to execute and deliver to the owner of the property a sworn satisfaction within ten days of receipt of a proper written demand, the owner of the property is entitled to recover from the person who failed to comply with the provisions of this section all damages that he or she may have sustained thereby, including attorney’s fees and an additional penalty in the sum of one hundred dollars.