FORM 46-A - Demand Letter to Mortgagee, Mortgage Servicer ...



Demand Letter to Mortgagee, Mortgage Servicer or Note Holder for Discharge [and Damages] Pursuant to M.G.L. c. 183, § 55(a), (b) and (c)

[Attorney’s Letterhead]

Via Certified Mail, In hand Delivery or Overnight Delivery

Date:

To: ____________________

____________________

____________________

Re: Demand to Mortgagee, Mortgage Servicer or Note Holder for Discharge [and Damages] Pursuant to M.G.L. c. 183, § 55(a), (b) and (c)

Property Address: __________________________________________________________________

__________________________________________________________________

Original Mortgagor: __________________________________________________________________

__________________________________________________________________

Original Mortgagee: _________________________________________________________________ _________________________________________________________________

Mortgage Reference: __________________________ County Registry of Deeds.

 Recorded Land: Book_______________, Page ________________

 Registered Land: Document No. _______Certificate of Title_______

Dear: ____________________:

This letter constitutes a written demand pursuant to M.G.L. c. 183, §55(a), (b) and (c) to your company as [mortgagee, mortgage servicer or note holder] who received full payment and satisfaction of the above-referenced mortgage on or about __________________ in accordance with a Payoff Statement issued by [your company] dated ___________________. Under M.G.L. c. 183, §55(a), your company, as the recipient of the payoff pursuant to the Payoff Statement, was obligated to record or cause to be recorded a proper discharge of the mortgage conforming to the requirements of M.G.L. c. 183, §54C and §55(a) and (b). To date, the undersigned has been unable to find such proper discharge of record. As a result of your company’s failure to

comply with its statutory obligations to properly discharge the mortgage, demand is hereby made for your company to forthwith provide to the undersigned a discharge of the above-referenced mortgage in proper form complying with M.G.L. c. 183, §55(a) and (b), including any necessary supporting documentation as required by M.G.L. c. 183, §54C or §55(b), together with the required recording fees ($75.00 per document).

Additionally, as a result of your company’s failure to record a proper discharge in compliance with M.G.L. c. 183, §54C and §55, the mortgagor has incurred the following actual damages [as well as attorneys fees and costs in dealing with this matter]. [Insert facts which demonstrate actual damages and, if any, attorneys fees and costs which the mortgagor reasonably can establish are attributable to the mortgagee’s failure to comply with M.G.L. c. 183, §54C and §55 here]. Thus, pursuant to M.G.L. c. 183, §55(c), the mortgagor further demands that your company pay to the mortgagor its actual damages [and attorneys fees and costs] as described above, which are attributable to your company’s failure to comply its statutory obligations. [The check for same may be made payable to the undersigned as attorney for the mortgagor(s).]

Please be advised that pursuant to M.G.L. c. 183, §55(c)(i) and (ii), should your company fail to comply as hereinabove provided within thirty (30) days of your receipt of this notice, your company may be liable for damages in an amount equal to the greater of $2,500 or the actual damages sustained by the mortgagor as the result of your company’s failure to comply with its statutory obligations, together with any further reasonable attorneys fees and costs, in addition to all other remedies available at law.

In order to limit your company’s liability to the actual damages claimed above (i.e., without paying attorneys fees and costs) under M.G.L. c.183, § 55(c), your company must comply with this demand by providing a confirmatory discharge, together with any supporting documentation and recording fees as required by M.G.L. c. 183, §54C and §55(a) and (b), to the undersigned within thirty (30) days after receipt of this demand.

Pursuant to M.G.L. c. 183, §55(c)(ii), your company may be able to avoid liability for such damages as well as attorneys fees and costs and other liabilities if, in addition to providing the discharge and any required supporting documentation and recording fees, your company, in its written response to the undersigned, provides documentation or other evidence from your company’s files or business records with respect to the mortgage showing either (1) that the discharge and any required documentation and recording fees were sent to the closing attorney, settlement agent or other person transmitting the payoff within the prescribed statutory time period or (2) if such records are not available, that your company has established reasonable procedures to achieve compliance with its obligations under M.G.L. c. 183, §55(a) and that such procedures are routinely followed and are its established business practice and were so at the time of the payoff. Please be advised that, under said §55(a), merely sending a discharge to the Registry of Deeds, even if accompanied by all necessary supporting documents and appropriate recording fees, does not constitute compliance with the statute.

Should you have any questions regarding the foregoing or what is necessary for your company to comply with its statutory obligations to properly discharge the mortgage, please contact the undersigned at your earliest convenience.

Very truly yours,

______________________________

(11-13-2007) REBA Form No 46A

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