House Bill 1261

(As Passed the House)

AN ACT AUTHORIZING A TITLE INSURANCE COMPANY TO EXECUTE AND RECORD CERTAIN RECORDS; REQUIRING AFFIDAVIT CONTENTS; PROVIDING THAT CERTAIN AFFIDAVITS WILL OPERATE AS A RELEASE FOR CERTAIN MORTGAGES; REQUIRING COUNTY CLERK TO INDEX AFFIDAVIT; PROVIDING PENALTIES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) As used in this section:

(a) "Mortgage" means a contract lien on an interest in real property.

(b) "Mortgagee" means:

(i) The grantee of a mortgage;

(ii) If a mortgage has been assigned of record, the last person or entity to whom the mortgage has been assigned of record; or

(iii) If a mortgage is serviced by a mortgage servicer, the mortgage servicer.

(c) "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. A person or entity transmitting a payoff statement is considered the mortgage servicer for the mortgage described in the payoff statement.

(d) "Mortgagor" means the grantor of a mortgage.

(e) "Payoff statement" means a statement of the amount of:

(i) the unpaid balance of a loan secured by a mortgage, including principal, interest, and other charges properly assessed under the loan documentation of the mortgage; and

(ii) Interest on a per diem basis for the unpaid balance.

(f) "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.

(2) This section applies only to a mortgage on property consisting exclusively of a one- to four-family residence, including a residential unit in a condominium regime.

(3) If a mortgagee fails to execute and deliver a release of mortgage 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 in accordance with a payoff statement furnished by the mortgagee 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 affidavit in the real property records of each county in which the mortgage was recorded. The written approval of the title insurance company shall appear on the affidavit if executed by an agent.

(4) An affidavit executed under this section shall state that:

(a) The affiant is an authorized officer or a duly appointed agent of a title insurance company;

(b) 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;

(d) The affiant has ascertained that the mortgagee has received payment of the loan secured by the mortgage in accordance with the payoff statement, as evidenced by:

(i) 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;

(ii) Wire transfer; or

(iii) Another documentary evidence of the receipt of payment by the mortgagee.

(e) More than sixty (60) days have elapsed since the date payment was received by the mortgagee;

(f) The title insurance company or its duly appointed agent has given the mortgagee 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

(g) The mortgagee has not responded in writing to the notification at least fifteen (15) days before the affidavit is recorded.

(5) The affidavit must include the names of the mortgagor and the mortgagee, 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 and/or modification is recorded, together with similar information for a recorded assignment of the mortgage.

(6) The affiant shall attach to the affidavit a photostatic copy, certified by the affiant as a true copy of the original document, of:

(a) The documentary evidence that payment has been received by the mortgagee, including the endorsement of the mortgagee 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

(b) The payoff statement.

(7) An affidavit that is executed and recorded as provided by this section shall operate as a release of the mortgage described in the affidavit.

(8) The county clerk shall index the affidavit against the real property described in the mortgage and the affidavit.

(9) A person who knowingly causes an affidavit with false information to be executed and recorded under this section is guilty of perjury and shall be punished as provided by law.

SECTION 2. This act shall take effect and be in force from and after July 1, 2016.