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Sub. H. B. No. 201 As Reported by the House Financial Institutions, Housing, and Urban Development CommitteeAs Reported by the House Financial Institutions, Housing, and Urban Development Committee
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Adams, J., Terhar, Thompson, Hayes
A BILL
To amend section 5301.36 and to enact section
5301.234 of the Revised Code to make changes
relative to mortgage subrogation and entries of
satisfaction.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5301.36 be amended and section
5301.234 of the Revised Code be enacted to read as follows:
Sec. 5301.234. (A) A mortgage encumbering real property
granted to secure funds that are used to satisfy a prior mortgage
or lien on the real property shall be subrogated to the priority
of the prior mortgage or lien that was satisfied, to the extent of
the amount satisfied, if both of the following apply:
(1) The parties to the mortgage granted to secure funds that
are used to satisfy a prior mortgage or lien intend that mortgage
to have the priority of the satisfied mortgage or lien.
(2) At the time the holder of a subordinate mortgage or lien
received its interest, the holder expected the interest to be
junior to the satisfied mortgage or lien.
(B) A mortgagee seeking to be subrogated pursuant to division
(A) of this section shall not be denied subrogation for the
priority of the satisfied mortgage or lien for any of the
following reasons:
(1) The mortgagee is engaged in the business of lending.
(2) The mortgagee had actual knowledge or constructive notice
of a mortgage or lien over which the mortgagee would gain priority
through subrogation.
(3) The mortgagee committed a mistake or was negligent or a
third party committed a mistake or was negligent.
(4) The lien for which the mortgagee seeks to be subrogated
was released.
(5) The mortgagee obtained a title insurance policy.
(C) Notwithstanding the application of division (A) of this
section, the holder of a subordinate mortgage or lien shall retain
the same subordinate position that the holder would have had if
the prior mortgage or lien had not been satisfied.
Sec. 5301.36. (A) Except in a county in which the county
recorder has elected to require that all satisfactions of
mortgages be recorded by separate instrument as allowed under
section 5301.28 of the Revised Code, when recording a mortgage,
county recorders shall leave space on the margin of the record for
the entry of satisfaction, and record therein the satisfaction
made on the mortgage, or permit the owner of the claim secured by
the mortgage to enter such satisfaction. Such record shall have
the same effect as the record of a release of the mortgage.
(B) Within ninety days from the date of the satisfaction of a
residential mortgage, the mortgagee shall record a release of the
mortgage evidencing the fact of the
its satisfaction in the
appropriate county recorder's office and pay any fees required for
the recording. The mortgagee may, by contract with the mortgagor,
recover the cost of the fees required for the recording of the
satisfaction by the county recorder.
(C) If the mortgagee fails to comply with division (B) of
this section, the mortgagor of the unrecorded satisfaction and the
current owner of the real property to which the mortgage pertains
may recover, in a civil action, damages of two hundred fifty
dollars. This division does not preclude or affect any other legal
remedies or damages that may be available to the mortgagor.
(D)(1) If upon the expiration of the ninety-day period
described in division (B) of this section, the satisfaction of
mortgage remains unrecorded, the current owner of the real
property shall provide the mortgagee written notice, in accordance
with the Rules of Civil Procedure, of the failure to enter the
release of the mortgage of record. The notice shall be in
substantially the following form:
"OHIO LAW REQUIRES A MORTGAGEE, WHETHER THE ORIGINAL MORTGAGEE OR
ANY SUCCESSOR TO THE INTEREST OF THE ORIGINAL MORTGAGEE, TO RECORD
A RELEASE OF A MORTGAGE EVIDENCING ITS SATISFACTION IN THE
APPROPRIATE COUNTY RECORDER'S OFFICE AND TO PAY ANY FEES REQUIRED
FOR THE RECORDING WITHIN A CERTAIN TIME PERIOD. (Name of
mortgagor)'S MORTGAGE LOAN, (loan number or other loan
identification), FOR PROPERTY LOCATED AT (property address), WAS
SATISFIED ON (date of satisfaction). IT APPEARS YOU HAVE YET TO
RECORD A RELEASE OF THIS MORTGAGE. FAILURE TO RECORD THE RELEASE
WITHIN 15 DAYS OF RECEIVING THIS NOTICE MAY RESULT IN A CIVIL
ACTION FILED AGAINST YOU TO RECOVER REASONABLE ATTORNEYS' FEES AND
COSTS INCURRED IN SUCH AN ACTION OR OTHERWISE TO OBTAIN THE
RECORDING, PLUS DAMAGES OF $100 FOR EACH DAY OF NONCOMPLIANCE NOT
TO EXCEED $5,000 IN TOTAL DAMAGES."
(2) Within fifteen days after delivery of the notice
described in division (D)(1) of this section, the mortgagee shall
record a release of the mortgage evidencing the fact of its
satisfaction in the appropriate county recorder's office and pay
any fees required for the recording. The mortgagee may, by
contract with the mortgagor or current owner of the real property,
recover the cost of the fees required for the recording of the
satisfaction by the county recorder.
(E) If the mortgagee fails to comply with division (D)(2) of
this section after receiving the notice in accordance with
division (D)(1) of this section, the current owner of the real
property may recover, in a civil action, reasonable attorneys'
fees and costs incurred in such an action or otherwise to obtain
the recording of a satisfaction of mortgage plus damages of one
hundred dollars for each day of noncompliance, not to exceed five
thousand dollars in total damages.
This division does not preclude or affect any other legal
remedies or damages that may be available to the current owner.
(F) A mortgagee that records a release of a mortgage
evidencing the fact of its satisfaction within the time periods
required by this section shall not be in violation of this
section, or subject to damages or fees, due to the failure of a
county recorder to timely process that release of mortgage.
(G) A current owner may combine the civil actions described
in divisions (C) and (E) of this section by bringing one action to
collect for both damages, or may bring separate actions.
(H) As used in this section, "residential mortgage" means an
obligation to pay a sum of money evidenced by a note and secured
by a lien upon:
(1) "Mortgagee" includes the original mortgagee or any
successor to or assignee of the original mortgagee.
(2) real
property located within this state containing two
or fewer residential units or on which two or fewer residential
units are to be constructed and shall include such an
"Satisfaction" means that the obligation on a residential
condominium or cooperative unit secured by a mortgage has been
paid in full and the underlying obligation terminated, with no
opportunities for future advancements.
Section 2. That existing section 5301.36 of the Revised Code
is hereby repealed.
Section 3. (A)(1) With respect to an unreleased commercial
mortgage that has been satisfied more than ninety days prior to
the effective date of this act, but not recorded, the mortgagee
shall not be subject to a civil action or damages as described in
division (C) of section 5301.36 of the Revised Code.
(2) The current owner of the real property to which such a
mortgage pertains shall provide the mortgagee the written notice
described in division (D)(1) of section 5301.36 of the Revised
Code not sooner than on the effective date of this act and may
recover damages in a civil action for failure to comply with
division (D)(2) of that section pursuant to division (E) of that
section.
(B)(1) With respect to an unreleased commercial mortgage that
has been satisfied less than ninety days prior to the effective
date of this act, but not recorded, the mortgagee shall not be
subject to a civil action or damages as described in division (C)
of section 5301.36 of the Revised Code.
(2) The current owner of the real property to which such a
mortgage pertains shall provide the mortgagee the written notice
described in division (D)(1) of section 5301.36 of the Revised
Code not sooner than on the ninetieth day after the mortgage was
satisfied and may recover damages in a civil action for failure to
comply with division (D)(2) of that section pursuant to division
(E) of that section.
(C)(1) With respect to an unreleased residential mortgage
that has been satisfied, but not recorded, prior to the effective
date of this act, the mortgagee shall be subject to a civil action
or damages as described in division (C) of section 5301.36 of the
Revised Code for failure to comply with division (B) of that
section.
(2) If such a mortgage was satisfied more than ninety days
prior to the effective date of this act, the current owner of the
real property to which the mortgage pertains shall provide the
mortgagee the written notice described in division (D)(1) of
section 5301.36 of the Revised Code not sooner than on the
effective date of this act and may recover damages in a civil
action for failure to comply with division (D)(2) of that section
pursuant to division (E) of that section. If such a mortgage was
satisfied less than ninety days prior to the effective date of the
act, the current owner shall provide the mortgagee the written
notice described in division (D)(1) of section 5301.36 of the
Revised Code not sooner than on the ninetieth day after the
mortgage was satisfied and may recover damages in a civil action
for failure to comply with division (D)(2) of that section
pursuant to division (E) of that section.
(D) As used in this section, "mortgagee" has the same meaning
as in section 5301.36 of the Revised Code, as amended by this act.
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