1 | A bill to be entitled |
2 | An act relating to certificates of release for mortgages; |
3 | creating s. 701.041, F.S.; providing definitions; |
4 | providing for the issuance of a certificate of release for |
5 | a mortgage by a title insurer or its authorized agent for |
6 | certain purposes; providing for recordation; specifying |
7 | contents of a certificate of release; requiring execution, |
8 | acknowledgment, and recordation of a certificate of |
9 | release by certain entities; providing requirements for |
10 | appointment of an agent for execution purposes; providing |
11 | for effect of a certificate of release; providing for |
12 | liability of title insurers under certain circumstances; |
13 | providing criteria for recording multiple certificates of |
14 | release; providing application; requiring the Financial |
15 | Services Commission to adopt rules establishing an |
16 | actuarially sound premium charge for certificates of |
17 | release; repealing s. 701.05, F.S., relating to failing or |
18 | refusing to satisfy a lien and punishment therefor; |
19 | providing an effective date. |
20 |
|
21 | WHEREAS, the Legislature finds that modern trends in the |
22 | real estate market require that real estate closings must be |
23 | completed, funds disbursed, and title insurance policies issued |
24 | prior to the receipt by the title insurer or its authorized |
25 | agent, or the recording in the public records, of releases or |
26 | satisfactions of mortgages that have been paid, and |
27 | WHEREAS, in a significant number of circumstances such |
28 | releases or satisfactions are not presented in a timely fashion, |
29 | or are never presented, to the title insurer or its authorized |
30 | agent, and |
31 | WHEREAS, this situation is exacerbated by the proliferation |
32 | of servicing contracts and multiple assignments of mortgages, |
33 | and |
34 | WHEREAS, title insurers devote a significant amount of time |
35 | attempting to obtain and record releases and satisfactions of |
36 | mortgages that have been paid, and |
37 | WHEREAS, title insurers and their authorized agents |
38 | undertake a real and significant risk in the issuance of title |
39 | insurance policies without an exception for these paid mortgages |
40 | that have not been released or satisfied in the public records, |
41 | and |
42 | WHEREAS, it is in the public interest that an alternative |
43 | method be made available to title insurers and their authorized |
44 | agents to evidence in the public records the payment and release |
45 | of these mortgages, NOW, THEREFORE, |
46 |
|
47 | Be It Enacted by the Legislature of the State of Florida: |
48 |
|
49 | Section 1. Section 701.041, Florida Statutes, is created |
50 | to read: |
51 | 701.041 Title insurer; mortgage release certificate.-- |
52 | (1) DEFINITIONS.--For purposes of this section: |
53 | (a) "Mortgage" means a mortgage or mortgage lien on an |
54 | interest in real property in this state, including any |
55 | modifications thereof, given to secure a loan in the principal |
56 | amount of $500,000 or less, other than a mortgage securing an |
57 | open-end or revolving credit agreement. |
58 | (b) "Mortgagee" means: |
59 | 1. The grantee of a mortgage; or |
60 | 2. If a mortgage has been assigned of record, the last |
61 | person to whom the mortgage has been assigned of record. |
62 | (c) "Mortgage servicer" means the last person to whom a |
63 | mortgagor or the mortgagor's successor in interest has been |
64 | instructed by a mortgagee to send payments on a loan secured by |
65 | a mortgage. A person transmitting a payoff statement is the |
66 | mortgage servicer for the mortgage described in the payment |
67 | statement. |
68 | (d) "Mortgagor" means the grantor of a mortgage. |
69 | (e) "Payoff statement" means a statement of the amount of: |
70 | 1. The unpaid balance of a loan secured by a mortgage, |
71 | including principal, interest, and any other charges properly |
72 | due under or secured by the mortgage. |
73 | 2. Interest on a per-day basis for the unpaid balance. |
74 | (f) "Record" means to record with the clerk of the circuit |
75 | court or the comptroller in the county or counties in which the |
76 | real property securing the mortgage is located. |
77 | (g) "Title insurer" means a corporation or other business |
78 | entity authorized and licensed to transact the business of |
79 | insuring titles to interests in real property in this state |
80 | under chapter 624. |
81 | (2) CERTIFICATE OF RELEASE.--An officer or duly appointed |
82 | agent of a title insurer may, on behalf of a mortgagor or a |
83 | person who acquired from the mortgagor title to all or a part of |
84 | the property described in a mortgage, execute a certificate of |
85 | release that complies with the requirements of this section and |
86 | record the certificate of release in the real property records |
87 | of each county in which the mortgage is recorded if a |
88 | satisfaction or release of the mortgage has not been executed |
89 | and recorded after the date payment in full of the loan secured |
90 | by the mortgage was made in accordance with a payoff statement |
91 | furnished by the mortgagee or the mortgage servicer. |
92 | (3) CONTENTS.--A certificate of release executed under |
93 | this section must contain: |
94 | (a) The name of the mortgagor, the name of the original |
95 | mortgagee, and, if applicable, the mortgage servicer; the date |
96 | of the mortgage; the date of recording; and the volume and page |
97 | or document number in the real property records in which the |
98 | mortgage is recorded, together with similar information for the |
99 | last recorded assignment of the mortgage. |
100 | (b) A statement that the mortgage, including any |
101 | modifications thereof, was in the principal amount of $500,000 |
102 | or less. |
103 | (c) The name of the title insurer filing the certificate |
104 | of release, a statement that the person executing the |
105 | certificate of release is an officer or a duly appointed agent |
106 | of the title insurer, a statement that the title insurer is |
107 | authorized and licensed to transact the business of insuring |
108 | titles to interests in real property in this state under chapter |
109 | 624 or chapter 626, and, if executed by a duly appointed agent, |
110 | shall further provide the recording information of the |
111 | appointment of such agent as required by subsection (4). |
112 | (d) A statement that the certificate of release is made on |
113 | behalf of the mortgagor or a person who acquired title from the |
114 | mortgagor to all or a part of the property described in the |
115 | mortgage. |
116 | (e) A statement that the mortgagee or mortgage servicer |
117 | provided a payoff statement which was used to make payment in |
118 | full of the unpaid balance of the loan secured by the mortgage. |
119 | (f) A statement that payment in full of the unpaid balance |
120 | of the loan secured by the mortgage was made in accordance with |
121 | the payoff statement and that a copy of the certificate of |
122 | release was sent to the mortgagee or mortgage servicer that |
123 | provided the payoff statement. |
124 | (4) EXECUTION.-- |
125 | (a) A certificate of release authorized by subsection (2) |
126 | must be duly executed, sworn to or affirmed under penalty of |
127 | perjury before a notary public, and recorded and may be executed |
128 | by an officer of a title insurer or by a duly appointed agent of |
129 | a title insurer. Such delegation to an agent by a title insurer |
130 | shall not relieve the title insurer of any liability for damages |
131 | caused by the agent for the execution or recordation of a |
132 | certificate of release. |
133 | (b) The appointment of an agent must be duly executed, |
134 | acknowledged, and recorded by an officer of a title insurer and |
135 | must state: |
136 | 1. The title insurer as the principal. |
137 | 2. The identity of the person, partnership, or corporation |
138 | authorized to act as agent to execute and record certificates of |
139 | release provided for in this section on behalf of the title |
140 | insurer. |
141 | 3. That the agent has the full authority to execute and |
142 | record certificates of release provided for in this section on |
143 | behalf of the title insurer. |
144 | (c) A separate appointment of agent shall not be necessary |
145 | for each certificate of release provided that at least one such |
146 | appointment is recorded in the county in which the mortgaged |
147 | property is located. The appointment of agent must be rerecorded |
148 | where necessary to establish authority of the agent, but such |
149 | authority shall continue until a revocation of appointment is |
150 | recorded in the office of the county recorder in which the |
151 | appointment of agent was recorded. |
152 | (d) After recordation of a title insurer's revocation of |
153 | appointment in the office of the county recorder in which the |
154 | appointment was recorded, the agent whose appointment is revoked |
155 | in such county shall have no further authority to execute or |
156 | record certificates of release as provided in this section on |
157 | behalf of that title insurer with respect to any mortgages |
158 | recorded in that county, and no such certificate of release |
159 | thereafter executed or recorded by that agent on behalf of that |
160 | title insurer shall be effective to release any mortgage |
161 | recorded in that county. |
162 | (5) EFFECT.--For purposes of releasing the mortgage, a |
163 | certificate of release containing the information and statements |
164 | provided for in subsection (3) and executed as provided in |
165 | subsection (4) is entitled to be recorded with the county |
166 | recorder and operates as a release of the mortgage described in |
167 | the certificate of release. The county recorder shall rely upon |
168 | the certificate to release the mortgage. Recording of a |
169 | certificate of release by a title insurer or its agent shall not |
170 | relieve the mortgagor, or the mortgagor's successors or assigns, |
171 | from any personal liability on the loan or other obligations |
172 | secured by the mortgage. A certificate of release recorded |
173 | pursuant to this section fulfills any other obligation of the |
174 | mortgagee or mortgage servicer to file a satisfaction or release |
175 | of the mortgage. |
176 | (6) LIABILITY OF TITLE INSURER.-- |
177 | (a) In addition to any other remedy provided by law, a |
178 | title insurer recording a certificate of release under this |
179 | section shall be liable to the holder of the obligation secured |
180 | by the mortgage for actual damage sustained due to the recording |
181 | of the certificate of release. Reasonable costs and attorneys' |
182 | fees shall be awarded to the prevailing party. |
183 | (b) The title insurer named in a certificate of release |
184 | filed by a duly appointed agent shall be liable pursuant to this |
185 | subsection without regard to whether the title insurer |
186 | authorized the specific certificate of release recorded by the |
187 | agent. |
188 | (c) The title insurer shall have no liability under this |
189 | subsection if the title insurer shows that payment in full of |
190 | the unpaid balance of the loan secured by the mortgage was made |
191 | in accordance with the payoff statement furnished by the |
192 | mortgagee or the mortgage servicer. |
193 | (d) Liability of a title insurer pursuant to this section |
194 | shall be considered to be a title insurance claim on real |
195 | property in this state pursuant to s. 627.7865. |
196 | (7) RECORDING.--If a mortgage is recorded in more than one |
197 | county and a certificate of release is recorded in one of such |
198 | counties, a certified copy of the certificate of release may be |
199 | recorded in another of such counties with the same effect as the |
200 | original. In all cases, the certificate of release shall be |
201 | entered and indexed as satisfactions of mortgage are entered and |
202 | indexed. |
203 | (8) APPLICATION.--This section applies only to a mortgage, |
204 | including any modifications of such mortgage, in the principal |
205 | amount of $500,000 or less. |
206 | (9) PREMIUM.--The Financial Services Commission shall |
207 | adopt rules establishing an actuarially sound premium charge to |
208 | be made for each certificate of release recorded pursuant to |
209 | this section. |
210 | Section 2. Section 701.05, Florida Statutes, is repealed. |
211 | Section 3. This act shall take effect July 1, 2005. |