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(a) In this section:
(1) “Mortgage” means a deed of trust or other contract lien on an interest in real property.
(2) “Mortgagee” means:
(A) the grantee of a mortgage;
(B) if a mortgage has been assigned of record, the last person to whom the mortgage 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 to whom a mortgagor has been instructed by a mortgagee to send payments for the loan secured by a mortgage. A person transmitting a payoff statement is considered the mortgage servicer for the mortgage 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, including principal, interest, and other charges properly assessed under the loan documentation of the mortgage; and
(B) interest on a per diem basis for the unpaid balance.
(6) “Title insurance company” means a corporation or other business entity authorized to engage in the business of insuring titles to interests in real property in this state.
(7) “Authorized title insurance agent,” with respect to an Affidavit as Release of Lien under this section, means a person licensed as a title insurance agent under Chapter 2651, Insurance Code, and authorized in writing by a title insurance company by instrument recorded in the real property records in the county in which the property to which the affidavit relates is located to execute one or more Affidavits as Release of Lien in compliance with this section, subject to any terms, limitations, and conditions that are set forth in the instrument executed by the title insurance company.
(b) This section applies only to a mortgage on:
(1) property consisting exclusively of a one-to-four-family residence, including a residential unit in a condominium regime; or
(2) property other than property described by Subdivision (1), if the original face amount of the indebtedness secured by the mortgage on the property is less than $1.5 million.
(c) An authorized officer of a title insurance company or an authorized title insurance agent may, on behalf of the mortgagor or a transferee of the mortgagor who acquired title to the property described in the mortgage, execute an affidavit that complies with the requirements of this section and record the affidavit in the real property records of each county in which the mortgage was recorded.
(d) An affidavit executed under Subsection (c) must be in substantially the following form:
AFFIDAVIT AS RELEASE OF LIEN
Before me, the undersigned authority, on this day personally appeared (insert name of affiant) (“Affiant”) who, being first duly sworn, upon his/her oath states:
1. My name is (insert name of Affiant), and I am an authorized officer of (insert name of title insurance company or authorized title insurance agent) (“Title Company”).
2. This affidavit is made on behalf of the mortgagor or a transferee of the mortgagor who acquired title to the property described in the following mortgage:
(describe mortgage, the name of the mortgagor, and the property described in the mortgage)
3. (Insert name of Mortgagee) (“Mortgagee”) provided a payoff statement with respect to the loan secured by the mortgage.
4. Affiant has ascertained that Title Company delivered to Mortgagee payment of the loan secured by the mortgage in the amount and time and to the location required by the payoff statement.
5. The mortgage relates to:
(A) property consisting exclusively of a one-to-four-family residence, which may include a residential unit in a condominium regime; or
(B) property, other than property described by Paragraph (A) above, for which the original face amount of the indebtedness secured by the mortgage on the property is less than $1.5 million.
6. Pursuant to Section 12.017, Texas Property Code, this affidavit constitutes a full and final release of the mortgage from the property.
Signed this ___ day of __________, ___.
_______________________________ (signature of affiant)
State of __________
County of __________
Sworn to and subscribed to before me on __________ (date) by __________ (insert name of affiant).
__________ (signature of notarial officer)
(Seal, if any, of notary) __________
_______________________________ (printed name)
My commission expires:
(e) An affidavit filed under Subsection (c) or (f) must include the names of the mortgagor and the mortgagee, the date of the mortgage, and the volume and page or clerk's file number of the real property records where the mortgage is recorded, together with similar information for a recorded assignment of the mortgage.
(f) On or after the date of the payment to which the affidavit relates, the title insurance company or authorized title insurance agent must notify the mortgagee at the location to which the payment is sent that the title insurance company or authorized title insurance agent may file for record at any time the affidavit as a release of lien. If notice required by this section is not provided to the mortgagee, the title insurance company or authorized title insurance agent may not file for record the affidavit as a release of lien. The mortgagee may file a separate affidavit describing the mortgage and property and controverting the affidavit by the title insurance company or authorized title insurance agent as a release of lien on or before the 45th day after the date the mortgagee receives the notice if the mortgagee mails a copy of the mortgagee's affidavit to the title insurance company or authorized title insurance agent within that 45-day period.
(g) An affidavit under Subsection (c) operates as a release of the mortgage described in the affidavit if the affidavit, as provided by this section:
(1) is executed;
(2) is recorded; and
(3) is not controverted by a separate affidavit by the mortgagee in accordance with the requirements of Subsection (f).
(h) The county clerk shall index an affidavit filed under this section in the names of the original mortgagee and the last assignee of the mortgage appearing of record as the grantors and in the name of the mortgagor as grantee.
(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, including the penalties for commission of offenses under Section 37.02 of the Penal Code. The attorney general may sue to collect the penalty. A person who negligently causes an affidavit with false information to be executed and recorded under this section is liable to a party injured by the affidavit for actual damages. If the attorney general or an injured party bringing suit substantially prevails in an action under this subsection, the court may award reasonable attorney's fees and court costs to the prevailing party.
(j) A title insurance company or authorized title insurance agent that, at any time after payment of the mortgage, files for record an affidavit executed under Subsection (c) may use any recording fee collected for the recording of a release of the mortgage for the purpose of filing the affidavit.
(k) This section does not affect any agreement or obligation of a mortgagee to execute and deliver a release of mortgage.
Cite this article: FindLaw.com - Texas Property Code - PROP § 12.017. Title Insurance Company Affidavit as Release of Lien; Civil Penalty - last updated April 14, 2021 | https://codes.findlaw.com/tx/property-code/prop-sect-12-017/
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