ATTORNEY AFFIDAVIT OF DISCHARGE FORMS



FORM 62B

SENT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Date:

Property Address:

Mortgagor:

Mortgagee:

Address of Mortgagee:

Servicer (to whom payoff made, if applicable):

Address of Servicer (if applicable):

Note Holder (to whom payoff made, if applicable):

Address of Note Holder (if applicable):

Mortgage Information [including parties and assignments]:

DEMAND LETTER TO MORTGAGEE, MORTGAGE SERVICER OR NOTE HOLDER FOR DISCHARGE, RECORDING FEES [AND DAMAGES]

(delete damages if not part of the demand)

AND

NOTICE OF INTENTION TO RECORD AFFIDAVIT OF DISCHARGE

PURSUANT TO M.G.L. C. 183, § 55(g) (1) AND

M.G.L. C. 183, §55(g) (3)

Demand is hereby made for a discharge of the above referenced mortgage executed by the current mortgage holder of record, or by a party documented of record in said Registry of Deeds [Registry District] to have authority to execute discharges on behalf of the mortgagee.

The above mortgage was paid in full on or about ________________. Enclosed are copies of the mortgage and the following documents evidencing the payoff:

A. Mortgage payoff statement dated ____________ issued by _____________ for $_____________ due as of ______________ with $______ per diem interest thereafter.

B. Check dated ____________ for $___________ payable to the order of _______________.

C. Wire confirmation dated _____________ for $_____________ to payee __________.

REBA Form No. 62B

D. Copy of cover letter dated ____________ addressed to __________ stating payment enclosed.

E. Copy of Federal Express confirmation of delivery to ______________ on __________.

M.G.L. c. 183, § 55(g) (1) (vii) requires that within 45-days of receiving this notice, your company must:

A. Record a mortgage discharge executed by the record mortgage holder, or by one documented of record in Massachusetts to have authority to execute discharges on its behalf; OR

B. Send to the undersigned the recording information that evidences the recording of a proper mortgage discharge executed by the record mortgage holder or by one documented of record in Massachusetts to have authority to execute discharges on its behalf; OR

C. Send to the undersigned for recording a mortgage discharge or confirmatory mortgage discharge executed by the record mortgage holder or by one documented of record in Massachusetts to have authority to execute discharges on its behalf, together with $75.00 document recording fee; OR

D. Send written notification to the undersigned that the payment was inadequate, and specifying the reason and amount of inadequacy.

In the event the payoff amount was sent to a mortgage servicer or note holder that is not the mortgagee, a copy of this notice is being sent to the mortgagee as required in M.G.L. c. 183, § 55(g)(3). The mortgagee may object to the recording of the affidavit if, within 45-days of receipt of this notice, it provides to the undersigned documentary proof:

A. That it is the true holder of the Note, debt or other claim or obligation secured by the mortgage; AND EITHER

B. That the payoff was inadequate, specifying the reason for the inadequacy; OR

C. That the payment was erroneously made to someone who was not the proper holder of the Note, debt, or other claim or obligation secured by the mortgage and who was not acting properly on behalf of the mortgagee in receiving the payment.

Failure to so provide or record a proper discharge or provide written notification objecting to the mortgage payment within 45-days shall expose the mortgagee, mortgage servicer or note holder to liabilities and remedies provided in M.G.L. c. 183, § 55(c) and shall, in addition, entitle the undersigned to execute and cause to be recorded an affidavit discharging the mortgage in accordance with M.G.L. c. 183, § 55(g) (1).

REBA Form No. 62B

A copy of the proposed affidavit, including therewith a description of the mortgage and any assignments thereof, including the parties thereto, the address of the mortgaged property and the recording information for the mortgage and any assignments is enclosed as part of this notice.

Very truly yours,

[Include some or all of the following if damages are part of the demand, otherwise delete this section from the letter before sending the notices]:

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.

REBA Form No. 62B

Comments

1. Use this form when sending a Demand and Notice of Intent to Record Affidavit of Discharge to clear title of a paid mortgage for which there is no discharge of record. Use Form 62C instead when sending the mortgage payment or as a follow-up to having sent the payment via wire transfer.

2. Address this Demand Letter to the entity that provided the mortgage payoff statement, the entity that was sent the mortgage payment and also to the mortgagee of record, including any successor entity resulting from merger, name change or bulk asset acquisition. Send the Demand Letter to all known addresses for each of the entities.

3. Delete Damages from the name of the Demand Letter and the text if damages are not part of the demand.

5. The list of documents evidencing payoff is a suggestion only, and the final Demand Letter should add or delete as appropriate based upon what documentation is available in any given situation.

6. Include with this Demand Letter the proposed Attorney’s Affidavit of Discharge (Form 62A) and copies of the documents listed in the Demand Letter and Affidavit that evidence the mortgage payoff. The Demand Letter package must be sent via certified mail.

7. The Attorney Affidavit of Discharge (Form 62A) is recorded together with a copy of this Demand and Notice of Intention to Record Affidavit of Discharge as one document. Pursuant to M.G.L. c. 183, §55(g) (5), while “the affidavit shall be accompanied by a copy of the notice provided to the mortgagee, mortgage servicer or note holder, [it] need not be accompanied by the documents enclosed with such notice”. If copies of the supporting documents are recorded together with the Affidavit and the Demand and Notice, any personal identifier information may and should be redacted from the supporting documents before recording pursuant to M.G.L. c. 183, §55(k).

(11-03-14)

REBA Form No. 62B

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