44-8-1. Creation, renewal, or extension of mortgage of real property--Formalities required.

A mortgage of real property can be created, renewed, or extended only by writing, executed with the formalities required in the case of a grant of real property.

Source: CivC 1877, § 1722; CL 1887, § 4346; RCivC 1903, § 2042; RC 1919, § 1547; SDC 1939, § 39.0201.

44-8-1.1. Real property interests subject to mortgage.

Any interest in real property which is capable of being transferred may be mortgaged.

Source: CivC 1877, § 1727, subdiv 1; CL 1887, § 4351, subdiv 1; RCivC 1903, § 2047, subdiv 1; RC 1919, § 1551 (1); SDC 1939, § 39.0207 (1); repealed SL 1966, ch 150, § 10-102; re-enacted SL 1970, ch 251.

44-8-1.2. After-acquired title of real property mortgagor.

Title to real property acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as security for the debt in like manner as if acquired before execution.

Source: CivC 1877, § 1727, subdiv 2; CL 1887, § 4351, subdiv 2; RCivC 1903, § 2047, subdiv 2; RC 1919, § 1551 (2); SDC 1939, § 39.0207 (2); repealed SL 1966, ch 150, § 10-102; re-enacted SL 1970, ch 251.

44-8-1.3. Mortgagor not bound to personal performance.

A real estate mortgage does not bind the mortgagor personally to perform the act for the performance of which it is a security unless there is an express covenant therein to that effect.

Source: CivC 1877, § 1727, subdiv 3; CL 1887, § 4351, subdiv 3; RCivC 1903, § 2047, subdiv 3; RC 1919, § 1551 (3); SDC 1939, § 39.0207 (3); repealed SL 1966, ch 150, § 10-102; re-enacted SL 1970, ch 251.

44-8-1.4. Mortgage assigned with debt.

The assignment of a debt secured by a real estate mortgage carries with it the security.

Source: CivC 1877, § 1727, subdiv 4; CL 1887, § 4351, subdiv 4; RCivC 1903, § 2047, subdiv 4; RC 1919, § 1551 (4); SDC 1939, § 39.0207 (4); repealed SL 1966, ch 150, § 10-102; re-enacted SL 1970, ch 251.

44-8-1.5. Security of mortgage protected against mortgagor's act.

No person whose interest is subject to the lien of a real estate mortgage may do any act which will substantially impair the mortgagee's security.

Source: CivC 1877, § 1733; CL 1887, § 4358; RCivC 1903, § 2054; RC 1919, § 1558; SDC 1939, § 39.0207 (5); repealed SL 1966, ch 150, § 10-102; re-enacted SL 1970, ch 251.

44-8-2. Power of attorney to execute mortgage of real property must be in writing--Signature, acknowledgment, or proof--Recording.

A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, proved, or certified and recorded in like manner as powers of attorney for grants of real property.

Source: CivC 1877, § 1730; CL 1887, § 4355; RCivC 1903, § 2051; RC 1919, § 1555; SDC 1939, § 39.0211.

44-8-3. Standard form of real estate mortgage.

The standard form of real estate mortgages is as follows:

MORTGAGE

This mortgage, made this ________ day of ________ in the year 20____, by ________ of ________ county and state of ________ mortgagor, to ________ of ________ P. O., county of ________ and state of ________, mortgagee:

Witnesseth, that said mortgagor -- hereby mortgage -- to said mortgagee ________ the following described premises situated in the county of ________ and State of South Dakota, to wit:

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

as security for the payment to said mortgagee -- at ________ of the principal sum of ________ dollars and interest thereon at ________ percent per annum from date, according to ________ certain promissory note -- bearing even date herewith, due ________ 20____.

Said mortgagor -- further agree -- to pay all taxes and assessments that may be levied upon said premises, before the same shall become delinquent (and to keep the buildings, if any, upon said premises safely insured for the benefit of said mortgagee -- in the sum of ________ dollars against loss by fire ________ and deliver the insurance policies to said mortgagee).

In case of the mortgagor's failure to pay said taxes or assessments before the same become delinquent or to pay insurance premiums for insurance on said buildings, said mortgagee -- or assignee may do so and the amounts so paid, with interest at ________ percent, from date of payment, shall be added to and deemed a part of the money secured by this mortgage. Said mortgagor -- hereby relinquish -- rights of homestead in said premises and warrant that -- he ________ the owner -- in fee of said premises, and that the same are free from all encumbrances.

In case of default in the payment of said principal sum of money or any part thereof, or interest thereon at the time or times above specified for payment thereof, or in case of nonpayment of any taxes, assessments, or insurance as aforesaid, or of breach of any covenant or agreement herein contained, then and in either case, the whole, principal and interest, of said note -- shall at the option of the holder thereof, immediately become due and payable, and this mortgage may be foreclosed by action, or by advertisement as provided by statute or the rules of practice relating thereto, and this paragraph shall be deemed as authorizing and constituting a power of sale as mentioned in said statutes or rules, and any amendatory thereof.

    (Signature) _____________________________

(Acknowledgment)

Source: SL 1911, ch 257, § 3; RC 1919, § 1566; SDC 1939, § 39.0301.

44-8-4. Assignment of real estate mortgage--Standard form.

The standard form of assignments of real estate mortgages is as follows:

ASSIGNMENT OF MORTGAGE

For and in consideration of ________ dollars, to ________ in hand paid, ________ do ________ hereby assign unto ________ of ________ P.O., a certain indenture of mortgage and the notes secured thereby, executed by ________ to ________ on the ________ day of ________, 20____, upon _____________________________________________________

_________________________________________________________________________

_________________________________________________________________________

and recorded in book ________ of mortgages on page ________ in the office of the register of deeds of ________ county, state of South Dakota, on the ________ day of ________, 20____, at ________ o'clock ____.M.

Dated this ________ day of ________ 20____.

    (Signature) _______________________________

(Acknowledgment)

Source: SL 1911, ch 257, § 4; RC 1919, § 1566; SDC 1939, § 39.0301.

44-8-5. Satisfaction of real estate mortgage--Standard form.

The standard form of satisfactions of real estate mortgages is as follows:

SATISFACTION OF MORTGAGE

________ of ________ state of ________, hereby certifies, that a certain mortgage bearing date the ________ day of ________, 20__, executed by ________ to ________ of ________ upon the following real property situated in the county of ________ in the State of South Dakota, to wit, the _________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

and recorded in the office of the register of deeds of said ________ county, South Dakota, in book ________ of mortgages, page ________, on the ________ day of ________, 20__, at ________ o'clock and ________ minutes ____. M., is, with the indebtedness thereby secured, fully paid, satisfied, and discharged.

Dated this ________ day of ________, 20____.

    (Signature) _____________________________

(Acknowledgment)

Source: SL 1911, ch 257, § 5; RC 1919, § 1566; SDC 1939, § 39.0301.

44-8-6. Adoption of standard forms--Use of other forms not precluded--Name and post office address of mortgagee or assignee required.

Sections 44-8-3 to 44-8-5, inclusive, do not preclude the use, affect the validity, or control the interpretation of other forms of real estate mortgages or assignments or satisfactions thereof; but all such instruments, whether on standard form or not, must show the name and post office address of the mortgagee or assignee.

Source: RC 1919, § 1567; SDC 1939, § 39.0301.

44-8-7. Real estate mortgages--Prohibited provisions--Exception--Federal land bank mortgages.

The following contracts between a mortgagor and mortgagee of real estate are against public policy and unenforceable:

(1)    In case of a mortgage upon the homestead of the mortgagor or adjacent property used in connection therewith and for the same purpose, any provision in such mortgage by which the mortgagor pledges, assigns, transfers, or agrees so to do, to the mortgagee or for his benefit, as payment of, or security for, the payment of any debt secured by such mortgage, either the right to the possession of the mortgaged premises prior to the expiration of the period of redemption or all or any part of the rental, crops, or proceeds to be received therefrom or produced thereon prior to the expiration of the period of redemption;

(2)    Any agreement whereby the mortgagor agrees to pay the taxes of the mortgagee upon or account of the mortgage debt;

(3)    Any agreement whereby the mortgagor waives any part of the exemptions of personal property allowed to him by law;

(4)    Any agreement whereby the mortgagor consents to the appointment of a receiver to take possession of the mortgaged premises during foreclosure or the period of redemption. In foreclosure by action the court may appoint a receiver if authorized by law.

The provisions of this section shall not apply to, affect, or restrict any mortgage executed, pursuant to the terms of the South Dakota One Hundred Eighty Day Redemption Mortgage Act, to the government of the United States, the federal land bank, the federal land bank commissioner, or any agency or instrumentality of the United States government whose obligations are guaranteed in whole or in part by the United States government.

Source: SL 1935, ch 149; SDC 1939, § 39.0303; SL 1949, ch 143; SL 1977, ch 187, § 30.

44-8-8. Validation of recorded real estate mortgages containing prohibited provisions--Notice to subsequent purchasers, encumbrancers or creditors--Rights of good faith purchasers or encumbrancers prior to July 1, 1949--Rights barred by no action.

The recording of any mortgage or trust deed affecting real property which was otherwise entitled to be recorded and which prior to January 1, 1992, was copied into the proper book of records kept in the office of any register of deeds and which has been properly indexed in that office, against the real property affected by such instrument shall be deemed to impart sufficient notice of such instrument and its contents to subsequent purchasers, encumbrancers, or creditors, notwithstanding that such mortgage contains one or more provisions which are prohibited by § 44-8-7, and the act of any register of deeds in copying any such mortgage or trust deed into a proper book of records kept in his office and in properly indexing the same in his office against the real property affected by such instrument, is hereby legalized, cured, and declared valid; but nothing herein contained shall affect the rights of purchasers, encumbrancers, or holders of a valid lien by court proceedings who became such in good faith prior to January 1, 1992, provided further that this section shall not legalize any of the prohibited provisions contained in any such mortgage.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1941, ch 165; SL 1949, ch 209; SDC Supp 1960, § 65.0302-1; SL 1992, ch 307, § 56.

44-8-9. Mortgage of real property--Acknowledgment or proof--Certification and recording.

Mortgages of real property may be acknowledged or proved, certified, and recorded in like manner and with like effect as grants thereof.

Source: CivC 1877, § 1738; CL 1887, § 4368; RCivC 1903, § 2065; RC 1919, § 1569; SDC 1939, § 39.0304.

44-8-10. Record of mortgage--Notice to subsequent purchasers and encumbrancers.

The record of a mortgage, duly made, operates as notice to all subsequent purchasers and encumbrancers.

Source: CivC 1877, § 1739; CL 1887, § 4369; RCivC 1903, § 2069; RC 1919, § 1573; SDC 1939, § 39.0305.

44-8-11. Instrument intended as mortgage of real property--Recording as mortgage necessary.

Every grant of real property, or of any estate therein, which appears, by any other writing, to be intended as a mortgage, must be recorded as a mortgage; and if such grant and other writing explanatory of its true character are not recorded together at the same time and place, the grantee can derive no benefit from such record.

Source: CivC 1877, § 1740; CL 1887, § 4370; RCivC 1903, § 2070; RC 1919, § 1574; SDC 1939, § 39.0306.

44-8-12. Defeasance, to effect grant absolute on its face, must be recorded.

When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee, or his heirs, or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the register of deeds of the county where the property is situated.

Source: CivC 1877, § 1740; CL 1887, § 4371; RCivC 1903, § 2071; RC 1919, § 1575; SDC 1939, § 39.0307.

44-8-13. Assignment of mortgage on real property--Recording--Acknowledgment or proof--Contents--Record as notice.

An assignment of a mortgage on real property may be recorded in like manner as a mortgage when it is acknowledged or proved according to the statutes relating to proof of instruments for record and contains the name of the mortgagor, the mortgagee, the assignee and the assignee's post-office address, the date of the mortgage, the date, county, state, book, and page of record of the mortgage and full description of the premises as described in the mortgage. This record serves as notice to all parties in interest or parties subsequently dealing with the property. No more than one assignment may be listed on the instrument.

Source: CivC 1877, § 1735, subdiv 1; CL 1887, § 4360; RCivC 1903, § 2056; SL 1907, ch 190; RC 1919, § 1560; SDC 1939, § 39.0212; SL 1983, ch 305, § 3; SL 2012, ch 51, § 4.

44-8-14. Discharge of recorded mortgage--Certificate of release, contents, recording, fee.

A recorded mortgage may be discharged upon the records of a register of deeds by filing for record and causing to be recorded at length a certificate signed by the mortgagee or his successor in interest by succession, assignment, representation, or otherwise, acknowledged, or proved and certified as prescribed by the statutes relating to recording acts, fully stating the names of the mortgagor, the mortgagee, the date of the mortgage, the date, county, state, book, and page of record of the mortgage, description of the mortgaged premises or part thereof sought to be released, and that the same are fully and completely released from all lien, force, and effect of the mortgage, or that the same is fully paid, satisfied, or discharged, or partially paid, satisfied, or discharged, and the extent thereof, as the case may be. The register of deeds shall record all such instruments upon the payment of the fee prescribed by law, and shall make note upon the margin of the record of the mortgage to the book and page where the discharge is recorded.

Source: CivC 1877, § 1735, subdivs 4, 5; CL 1887, §§ 4363, 4364; SL 1893, ch 119; RCivC 1903, §§ 2059, 2060; RC 1919, §§ 1563, 1564; SDC 1939, § 39.0214.

44-8-15. Mortgages affecting real property--Defective assignments or discharges recorded prior to July 1, 1939, legalized--Rights or purchasers or encumbrancers protected--Use as evidence--Rights barred by no action.

The record of any assignment or discharge of mortgage affecting real property, which was otherwise entitled to be recorded, and which, prior to January 1, 1992, was copied into the proper book of records kept in the office of any register of deeds, and which has been properly indexed against the real property affected by such instrument, shall be deemed to impart sufficient notice of such instrument and its contents to subsequent purchasers and encumbrancers, notwithstanding that the description of the real property affected by such instrument shall have been omitted therefrom; but nothing herein contained shall affect the rights of purchasers or encumbrancers prior to July 1, 1939.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1920 (SS), ch 69; SDC 1939, §§ 39.0302, 65.0303; SL 1992, ch 307, § 57.

44-8-16. Prior or superior mortgage affecting real property--Failure of mortgagor or successor in interest to pay installment due--Payment by holder of inferior mortgage--Added to amount due on mortgage.

In case any installment of interest or principal upon any prior or superior mortgage shall become due and the mortgagor or his successor in interest shall fail to pay such interest or principal, the holder of any inferior mortgage on real estate may pay such interest or principal upon such prior mortgage, and the amount so paid shall thereupon be added to the amount due on the mortgage held by the person making such payment and may be included in such mortgage upon foreclosure of the same.

Source: SL 1923, ch 223; SDC 1939 & Supp 1960, § 37.3009.

44-8-17. Real property sold on execution or on mortgage foreclosure--Renewal of insurance by purchaser--Payments of taxes or assessments by purchaser--Addition to cost of redemption from sale.

In all cases where real property has been heretofore, or shall be hereafter, sold on execution or in any mortgage foreclosure proceeding, the purchaser at such sale, or his successor or successors in interest, may during the year or years of redemption, in case of the expiration during such year of any insurance policy on the premises sold, pay the premium necessary to procure a renewal of such policy; and in case of any taxes or assessments being delinquent, or in case any installment of interest or principal upon any prior or superior mortgage shall be due or become due during such period of redemption, the purchaser may pay the same when or after due, and in all such cases, the amount so paid, with interest thereon, shall be and constitute a part of the sum necessary to be paid for the redemption from such sale.

Source: SL 1913, ch 274, § 1; RC 1919, § 2888; SL 1923, ch 223; SDC 1939 & Supp 1960, § 37.3009.

44-8-18. Past due installments of interest and principal on superior mortgage affecting real property--Payment by holder of inferior mortgage--Insurance, taxes, and assessments paid by purchaser at sale on execution or mortgage foreclosure--Payment by purchaser prior to redemption--Proof by verified written notice, recording, service, effect.

Payments pursuant to §§ 44-8-16 and 44-8-17 may be proved by a written notice thereof verified by the affidavit of the purchaser, his agent, or attorney, stating the items and describing the premises, which may be recorded in the office of the register of deeds, and a copy thereof served upon the sheriff of the county, and from the date of such service the sheriff, before issuing any redemption certificate, must collect the full amount specified in such notice in addition to the amount which would otherwise be due in redemption from such sale, and pay the same over to the purchaser at such sale, or his assignee.

Source: SL 1913, ch 274, § 1; RC 1919, § 2888; SL 1923, ch 223; SDC 1939 & Supp 1960, § 37.3009.

44-8-19. Bond to redeem without paying insurance, taxes or prior liens--Action on bond to determine validity.

In case any mortgagor, redemptioner, or judgment debtor, shall object to the payment of any such insurance premium, taxes, or prior liens on account of the incorrectness or invalidity thereof, he may file with the sheriff an indemnity bond, in an amount and with sureties to be approved by the sheriff, and thereupon the sheriff must permit redemption to be made without the payment of such insurance premiums, taxes, or prior liens so excepted to, and the purchaser may determine the correctness or validity thereof and collect the same by an action directly upon such bond, which action must be brought within one year next following such redemption.

Source: SL 1913, ch 274, § 2; RC 1919, § 2889; SDC 1939 & Supp 1960, § 37.3009; SL 1974, ch 55, § 44.

44-8-20. Deficiency in amount of purchase money mortgage given after June 30, 1933--Nonexistent after foreclosure of mortgage.

No claim for any deficiency in the amount secured by any real estate mortgage given after June 30, 1933, to secure all or any part of the purchase price of such real estate shall exist after the foreclosure of such mortgage by action or advertisement, but such foreclosure shall be a full satisfaction of such mortgage and no deficiency judgment shall thereafter exist or be rendered.

Source: SL 1933, ch 138, §§ 1, 2; SL 1935, ch 150, §§ 1, 2; SDC 1939, § 39.0308.

44-8-21. Mortgage securing note for purchase price of real estate--Nonnegotiability--Enforcement of liability--Endorsement of note.

In all cases where a note given by the purchaser and grantee of real estate to the vendor and grantor thereof to secure payment of all or any part of the purchase price is secured by a mortgage on such real estate, such note shall bear an endorsement upon its face to the effect that it is given for such purpose, and thereafter the same shall not be negotiable, nor shall any liability of any kind be enforced upon it either by action at law, or by set-off, or counterclaim, or otherwise, excepting by foreclosure of the mortgage. The rights of any party to said note, or of any assignee, or purchaser thereof, shall not be affected by the absence of such endorsement but shall be the same as though such note had been properly endorsed. Nothing herein contained shall apply to such note given prior to July 1, 1933.

Source: SL 1933, ch 138, § 3; SL 1935, ch 150, § 3; SDC 1939, § 39.0308.

44-8-22. Rights of payee of note given in payment of purchase price--Deficiency judgment prohibition inapplicable unless note secured by real estate mortgage.

Nothing contained in § 44-8-20 or 44-8-21 shall affect the rights of a payee or other owner of a note given in payment of all or part of the purchase price of real estate unless such note is secured by a real estate mortgage.

Source: SL 1933, ch 138, § 4; SL 1935, ch 150, § 4; SDC 1939, § 39.0308.

44-8-23. Executory contract remedies unaffected by deficiency judgment provisions.

Nothing contained in § 44-8-20 or 44-8-21 shall affect the liabilities of the parties to a contract for sale of real estate prior to the time such contract is merged into a mortgage note and mortgage, and judgment for foreclosure or for the amount due under said contract or any other customary judgment, may be rendered under such contract.

Source: SL 1933, ch 138, § 5; SL 1935, ch 150, § 5; SDC 1939, § 39.0308.

44-8-24. Deficiency judgment prohibition inapplicable to purchase money mortgage or notes held by federal agencies and instrumentalities.

Nothing contained in § 44-8-20 or 44-8-21 shall apply to purchase money mortgages, or notes held by the United States of America, or any agent, agency, or instrumentality thereof, or any corporation or association whose obligations are guaranteed in whole or in part by the United States of America, and it, or such agencies, instrumentalities, corporations, or associations shall be entitled to enforce such mortgages, mortgage notes, and to have judgments thereon and collect deficiencies thereon, anything in said sections to the contrary notwithstanding.

Source: SL 1935, ch 150, § 6; SDC 1939, § 39.0308.

44-8-25. Deficiency judgment provisions not applicable to outside lenders.

Nothing contained in this chapter shall affect the rights or liabilities of a mortgagor or mortgagee under a mortgage given by a purchaser or grantee of real estate to a lender who is not the vendor or grantor of such real estate.

Source: SL 1970, ch 250.

44-8-26. Collateral real estate mortgages.

A mortgage which contains the following statement in printed or typed capital letters: THE PARTIES AGREE THAT THIS MORTGAGE CONSTITUTES A COLLATERAL REAL ESTATE MORTGAGE PURSUANT TO SDCL 44-8-26, is subject to the provisions of this section. A mortgage executed pursuant to this section shall be entitled in printed or typed capital letters: MORTGAGE--COLLATERAL REAL ESTATE MORTGAGE. A mortgage made pursuant to this section shall, notwithstanding the fact that from time to time during the term thereof no indebtedness is due from the mortgagor to the mortgagee, constitute a continuing lien against the real property covered thereby for the amount stated in the mortgage. Any sums not exceeding the face amount of the mortgage, together with interest thereon as provided in the instrument secured by the mortgage, advanced by the mortgagee prior to or during the term of the mortgage have a lien priority as of the date the mortgage was filed. At any time the indebtedness due the mortgagee is zero, the mortgagor may demand in writing that the mortgage be satisfied, and the mortgagee shall within ten days thereafter execute and record a satisfaction thereof. Collateral real estate mortgages may be used to secure commercial, agricultural or consumer loans or lines of credit including, but not limited to, revolving notes and credits and over-draft checking plans.

A filed collateral real estate mortgage is effective for a period of five years from the date of filing and thereafter for a period of sixty days. No sums advanced subsequent to the end of the sixty-day period, save and except sums advanced for protection of the real estate collateral and for real property taxes or insurance, are secured by the collateral real estate mortgage unless an addendum to the collateral real estate mortgage extending its effective date is filed prior to the end of the sixty-day period. An addendum continuing the effectiveness of the collateral real estate mortgage may be filed by the mortgagee within six months before and sixty days after the expiration of the five-year effective date.

An addendum to a collateral real estate mortgage for the sole purpose of continuing the effectiveness of its lien need be signed only by the mortgagee. Upon the timely filing of such an addendum to a collateral real estate mortgage, the effectiveness of the collateral real estate mortgage will be continued for five years and sixty days after the addendum filing date. Thereafter, the addendum shall lose effectiveness to secure sums advanced after the sixty day period to the extent as provided above, unless another addendum to the collateral real estate mortgage continuing the effectiveness of its lien is filed prior to the end of the sixty day period. Succeeding addendums to collateral real estate mortgages may be filed in the same manner to continue the effectiveness of the lien of the collateral real estate mortgage.

Source: SL 1981, ch 310; SL 2009, ch 225, § 1; SL 2011, ch 199, § 1.

44-8-27. Due-on-sale clause defined.

For the purpose of this section and § 44-8-28, a due-on-sale clause is a provision of a real estate mortgage which requires that the note secured by the mortgage be paid at the time the property is transferred and no assumption of the original note is permitted.

Source: SL 1981, ch 311, § 1.

44-8-28. Inclusion of due-on-sale clause in mortgage required for enforcement.

No lender may enforce a due-on-sale clause unless the real estate mortgage includes such clause.

Source: SL 1981, ch 311, § 2.

44-8-29. Definition of terms.

Terms used in §§ 44-8-30 to 44-8-35, inclusive, mean:

(1)    "Mortgage," a mortgage or mortgage lien on an interest in real property in this state given to secure a loan;

(2)    "Mortgagee," the grantee of a mortgage or, if a mortgage has been assigned of record, the last person to whom the mortgage has been assigned of record;

(3)    "Mortgage servicer," the last person to whom a mortgagor or the mortgagor's successor in the interest has been instructed by a mortgagee to send payments on a loan secured by a mortgage. A person transmitting a payoff statement is the mortgage servicer for the mortgage described in the payment statement;

(4)    "Mortgagor," the grantor of a mortgage;

(5)    "Payoff statement," a statement of the amount of the unpaid balance of a loan secured by a mortgage, including principal, interest, and any other charges properly due under or secured by the mortgage; and interest on a per day basis for the unpaid balance;

(6)    "Record," to record with the county register of deeds;

(7)    "Title insurance company," any corporation or other business entity authorized and licensed to transact the business of insuring titles to interests in real property in this state under chapter 58-25.

Source: SL 1997, ch 251, § 1.

44-8-30. Certificate of release--Conditions.

Any officer or duly appointed agent of a title insurance company may, on behalf of a mortgagor or a person who acquired from the mortgagor title to all or a part of the property described in a mortgage, execute a certificate of release that complies with the requirements of §§ 44-8-30 to 44-8-35, inclusive, and record the certificate of release in the real property records of each county in which the mortgage is recorded if a satisfaction or release of the mortgage has not been executed and recorded after the date payment in full of the loan secured by the mortgage was received in accordance with a payoff statement furnished by the mortgagee or the mortgage servicer.

Source: SL 1997, ch 251, § 2; SL 2002, ch 201, § 1.

44-8-31. Requirements of certificate of release.

A certificate of release executed under §§ 44-8-30 to 44-8-35, inclusive, shall contain substantially all of the following:

(1)    The name of the mortgagor; the name of the original mortgagee; if applicable, the mortgage servicer; the date of the mortgage; the date of recording; and the volume and page or document number in the real property records where the mortgage is recorded; together with similar information for the last recorded assignment of the mortgage;

(2)    A statement that the mortgage was in the original principal amount of five hundred thousand dollars or less;

(3)    A statement that the person executing the certificate of release is an officer or a duly appointed agent of a title insurance company authorized and licensed to transact the business of insuring titles to interests in real property in this state under chapter 58-25;

(4)    A statement that the certificate of release is made on behalf of the mortgagor or a person who acquired title from the mortgagor to all or a part of the property described in the mortgage;

(5)    A statement that the mortgagee or mortgage servicer provided a payoff statement that was used to make payment in full of the unpaid balance of the loan secured by the mortgage; and

(6)    A statement that payment in full of the unpaid balance of the loan secured by the mortgage was made in accordance with the written or verbal payoff statement, and received by the mortgagee or mortgage servicer, as evidenced by one or more of the following in the records of the title insurance company or its agent: a bank check, certified 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 mortgage servicer, or other documentary evidence of payment to the mortgage or mortgage servicer.

Source: SL 1997, ch 251, § 3; SL 2002, ch 201, § 2.

44-8-32. Execution and acknowledgment of certificate of release--Appointment of agent.

A certificate of release authorized by § 44-8-30 shall be executed and acknowledged as required by law in the case of a deed pursuant to § 43-25-5 and may be executed by a duly appointed agent of a title insurance company, but such delegation to an agent by a title insurance company does not relieve the title insurance company of any liability for damages caused by its agent for the wrongful or erroneous execution of a certificate of release. The appointment of agent shall be executed and acknowledged as required by law in the case of a deed pursuant to § 43-25-5 and shall state:

(1)    Title insurance company as the grantor;

(2)    The identity of the person, partnership, or corporation authorized to act as agent to execute and record certificates of release provided for in §§ 44-8-30 to 44-8-35, inclusive, on behalf of the title insurance company;

(3)    That the agent has the full authority to execute and record certificates of release provided for in §§ 44-8-30 to 44-8-35, inclusive, on behalf of the title insurance company;

(4)    The term of appointment of the agent; and

(5)    That the agent has consented to and accepts the terms of the appointment.

A single appointment of agent may be recorded in each county in the register of deed's office. A separate appointment of agent is not necessary for each certificate of release. The appointment of agent shall be shown on each certificate of release. The appointment of agent may be rerecorded if necessary to establish authority of the agent, but such authority continues until a revocation of appointment is recorded in the office of the county register of deeds where the appointment of agent was recorded.

Source: SL 1997, ch 251, § 4.

44-8-33. Certificate of release prima facie evidence--Recording.

For purposes of releasing a mortgage, a certificate of release containing the information and statements provided for in § 44-8-31 and executed as provided in §§ 44-8-30 to 44-8-35, inclusive, is prima facie evidence of the facts contained in it, shall be recorded with the county register of deeds, and operates as a release of the mortgage described in the certificate of release. The county register of deeds shall rely upon the certificate of release to release the mortgage. Recording of a wrongful or erroneous certificate of release by a title insurance company or its agent does not relieve the mortgagor, or the mortgagor's successors or assigns, from any personal liability on the loan or other obligations secured by the mortgage. In addition to any other remedy provided by law, a title insurance company wrongfully or erroneously recording a certificate of release under §§ 44-8-30 to 44-8-35, inclusive, is liable to the mortgagee for damages sustained due to the recordings of the certificate of release, including reasonable attorney fees.

Source: SL 1997, ch 251, § 5.

44-8-34. Recording certificate of release in multiple counties.

If the mortgage is recorded in more than one county and a certificate of release is recorded in one of them, a certified copy of the certificate of release may be recorded in another county with the same effect as the original. In all cases, the certificate of release shall be recorded and indexed as satisfactions of mortgage are recorded and indexed pursuant to § 44-8-14.

Source: SL 1997, ch 251, § 6.

44-8-35. Application of certificate of release only to certain mortgages.

Sections 44-8-30 to 44-8-35, inclusive, apply only to a mortgage in the original principal amount of five hundred thousand dollars or less.

Source: SL 1997, ch 251, § 7.

44-9-1      Persons entitled to lien--Property affected--Extent of lien--Exceptions.
44-9-2      Construction of improvements with knowledge of owner subjects land to lien--Exceptions.
44-9-3      Vendee authorized to improve land sold under executory contract--Forfeiture or surrender of contract after attachment of liens for improvements--Liability of vendor.
44-9-4      Improvement not authorized by owner of land--Notice of nonliability.
44-9-5      Homestead right--Lien does not affect exemption.
44-9-6      Contribution under contract with owner--Agreed price--Extent of lien.
44-9-6.1      Interest on amounts secured by liens.
44-9-7      Attachment and taking effect of lien--Preference over other encumbrances.
44-9-8      Attachment of lien--Protection of bona fide purchaser, mortgagee, or encumbrancer--Notice of lien for improvements thereafter made.
44-9-9      Concurrent liens upon mine or mining claim, oil or gas well or spring--Pro rata payment.
44-9-10      Materials or services furnished to contractor--Lien account and notice of claim furnished to owner--Withholding of payments from contractor to protect lien claimants.
44-9-11      Lien account and notice of claim--Service on owner of property--Copy furnished to contractor--Assent of contractor to claim--Payment by owner--Deduction from amount due contractor.
44-9-12      Amount due from contractor to creditor--Recovery from owner.
44-9-13      Misappropriation of funds by contractor, subcontractor, or supplier--Theft.
44-9-14      Demand of owner for lien accounts--Service on persons claiming liens--Owner defined.
44-9-15      Lien ceases without filing of required lien statement--Place of filing of statement.
44-9-16      Lien statement by lien claimant--Verification--Contents.
44-9-17      Lien statement by lien claimant--Mailing of copy to property owner condition precedent to filing--Post office receipt attached to statement.
44-9-18      Lien statement by lien claimant--Duties of register of deeds--Filing in numerical order--Contents of record--Entry upon mortgage or lien index.
44-9-19      Fees for the filing, indexing or assignment of liens.
44-9-20      Claims against two or more buildings or improvements--Exception for condominiums--General contract with owner--Election of lien claimant.
44-9-21      Manner of satisfying liens--Execution and delivery of satisfaction to owner of property--Contents--Acknowledgment--Record of satisfaction--Cancellation of lien.
44-9-22      Neglect of lien holder to satisfy lien on demand--Damages--Attorney fees--Additional penalty.
44-9-23      Enforcement of lien--Venue of action--Commencement and conduct of proceedings.
44-9-24      Six-year limitation to enforce lien--Cancellation of expired lien.
44-9-25      Parties to action to foreclose lien--Admission of lien holder not named as defendant--Joinder of plaintiffs.
44-9-26      Forfeiture of lien for failure to commence suit upon demand--Cancellation by register of deeds.
44-9-27      Action to enforce lien--Commencement--Issuance of summons--Filing of complaint.
44-9-28      Notice of pendency of action to enforce lien--Necessity for filing--Intervention of other lien claimants.
44-9-29      Enforcement of lien--Application to make all interested persons parties--Order of court, publication--Rights barred by failure to appear and assert claim.
44-9-30      Consolidations of actions for foreclosure of liens upon same property--Order of court--Rights of parties protected.
44-9-31      Pleadings in action to foreclose lien--Bill of particulars to be attached, verification--Further account may be required by court--Pleading stricken and claim disallowed for failure to file particulars.
44-9-32      Pleadings in action to foreclose lien--Denial of averments of answer.
44-9-33      Foreclosure of liens--Applicability of laws governing civil procedure--Exception.
44-9-34      Foreclosure of liens--Appointment of receiver on request of majority of lien holders, parties to action.
44-9-35      Foreclosure of liens involving public utility--Receivership created instead of directing sale of property.
44-9-36      Receiver appointed in foreclosure proceeding--Issuance of certificates for charges necessary to protect property as provided in judgment.
44-9-37      Compensation of receiver fixed by court.
44-9-38      General power of court to appoint receiver not abridged.
44-9-39      Postponement of trial of foreclosure action--Omitted parties--Lien claim not due--Allowance of present worth of claim.
44-9-40      Judgment for lien holder--Amount demanded and proved--Costs fixed by court--Excluded from lien of other property.
44-9-41      Foreclosure of lien--Taxation of costs--Sum allowed for preparation and filing of lien statement and account.
44-9-42      Foreclosure of lien--Allowance of fees and expenses, attorneys, receivers, exception.
44-9-43      Payment of judgment by lien holder personally indebted for amount of lien--Subrogation to rights of person so paid.
44-9-44      Judgment of sale to satisfy all liens--Manner of sale--Rights of persons which are paramount to liens--Proceeds of sale, distribution by officer making sale.
44-9-45      Judgment of sale to satisfy all liens--Right of redemption--Leasehold having not more than two years to run--Interest of vendee under executory contract of sale.
44-9-46      Sale of improvements to satisfy all liens--Severance and removal from land.
44-9-47      Judgment and sale to satisfy all liens--Necessity for report to and confirmation by court.
44-9-48      Judgment and sale to satisfy all liens--Sale not confirmed by court--Resale--Receiver to handle property.
44-9-49      Failure to comply with chapter does not affect right of person to recover, in civil action, from party with whom he contracted.
44-9-50      Notice of project commencement--Time of filing--Fees--Register of deeds to maintain index.
44-9-51      Contractor's name and address and location notice to be posted--Contents of location notice.
44-9-52      Notice of project commencement does not affect title, liens allowable, or mortgage.
44-9-53      Notice of furnishing labor or materials required before lien extended--Notice recipients--Time for filing--Contents of notice--Exemption.