§ 1921-A — Partial release from lien of mortgaged premises

New York § 1921-A

• Jurisdiction: New York
• Law RPA: Real Property Actions & Proceedings
• Art. 19: Discharge or Extinguishment of Encumbrances, Claims and Interests

Text

§ 1921-a. Partial release from lien of mortgaged premises. 1. Whenever\nthe owner of mortgaged property situate in this state shall be entitled,\npursuant to the terms of the mortgage encumbering such property, to\nobtain the release of a portion thereof from the lien of such mortgage,\nthen, upon (1) delivery by such owner to the mortgagee of a partial\nrelease from lien of mortgaged premises, in a form entitled to be\nrecorded, describing the portion of the mortgaged premises so entitled\nto be released, together with the fees allowed by law for the taking of\nthe acknowledgment of a deed, (2) proof that all requirements set forth\nin such mortgage as conditions precedent to the execution and delivery\nby the mortgagee of such partial release have been satisfied, and (3)\npayment, or tender of payment, to the mortgagee of all sums required\nunder the terms of the mortgage to be paid to obtain such partial\nrelease, such mortgagee must execute and acknowledge before a proper\nofficer, in like manner as to entitle a conveyance to be recorded, the\npartial release theretofore delivered to such mortgagee or such other\npartial release from lien of mortgaged premises as may be required to be\nexecuted under the terms of the mortgage, which release shall be in\nrecordable form.\n 2. Upon the failure or refusal of any such mortgagee to comply with\nthe foregoing provisions of this section, any owner of the mortgaged\npremises may apply to the supreme court or a justice thereof, or to the\ncounty court or a judge thereof, in or of any county in which the\nmortgaged premises or any part thereof are situated in whole or in part,\nupon a petition, for an order to show cause why an order should not be\nmade by such court releasing of record from the lien of said mortgage\nthe parcel or parcels of land described in said release, and directing\nthe register or clerk of any county in whose office the same may have\nbeen recorded to mark the same upon his records as released as to the\nparcel or parcels described in such order, and further ordering and\ndirecting that the debt or other obligation secured by the mortgage be\nreduced in the amount tendered or paid, upon condition that in the event\nsuch mortgage or part thereof is not paid, the sums tendered pursuant to\nthe foregoing provisions of this section be paid to the officer\nspecified by law to hold court funds and moneys deposited in court in\nthe county wherein the mortgaged premises are situated in whole or in\npart for the purpose of paying said sum over to the mortgagee. Said\npetition must be verified in like manner as a verified pleading in an\naction in the supreme court and it must set forth the grounds of the\napplication.\n 3. In any case where an actual tender, as provided in subdivision one\nof this section, cannot, with due diligence, be made, any owner of the\nmortgaged premises may apply to the supreme court or a justice thereof,\nor to the county court or a judge thereof, in or of any county in which\nthe mortgaged premises, or any part thereof are situated in whole or in\npart, upon petition setting forth the grounds of the application and\nverified as aforesaid, for an order to show cause why an order should\nnot be made by said court releasing of record the parcel or parcels\ndescribed in said release from the lien of the mortgage, and directing\nthe register or clerk of every county in which the mortgaged premises\nare located to mark the same upon his records as released as to the\nparcel or parcels described in such order and further ordering and\ndirecting that the debt or other obligation secured by the mortgage be\nreduced, upon condition that the prerequisites for obtaining such\nrelease set forth in subdivision one of this section and the sum of the\nmortgage required to be paid pursuant to the terms and conditions of\nsaid mortgage and fees allowed by law or the mortgage, be paid to the\nofficer specified by law to hold court funds and moneys deposited in\ncourt in the county wherein the mortgaged premises are situated in whole\nor in part until such time as said sums may be claimed by the mortgagee.\n 4. Eight days' notice of the application for either of the orders\nprovided for in subdivisions two and three of this section shall be\ngiven to the mortgagee. Such notice shall be given in such manner as the\ncourt or the judge or justice thereof to whom the petition is presented\nmay direct, and said court or judge or justice may require such longer\nnotice to be given as may seem proper. If sufficient cause be shown the\ncourt or judge or justice thereof may issue such order to show cause\nreturnable in less than eight days.\n 5. Upon the return day of such order to show cause, the court, upon\nproof of due service thereof and on proof of the identity of the\nmortgagee and of the person presenting the petition, shall inquire, in\nsuch manner as it may deem advisable, into the truth of the facts set\nforth in the petition, and in case it shall appear that said sum or sums\nrequired to be paid pursuant to the terms and conditions of the mortgage\nand the fees allowed by law have been duly paid or tendered but not\naccepted, said partial release from lien of mortgage instrument has been\nduly presented for execution, or that such tender and presentation could\nnot have been made with due diligence and the prerequisites for\nobtaining such release as set forth in subdivision one of this section\nhave been met, then, in the event that portion of the lien of such\nmortgage required to be released pursuant to the terms and conditions\nthereof is not so released, the court shall make an order directing the\nsums so tendered, or in a case where such tender could not have been\nmade as aforesaid, directing the sum or sums so required and the fees\nallowed by law, to be paid to the officer specified by law to hold court\nfunds and moneys deposited in court in the county wherein the\napplication herein is made, and directing and ordering that upon such\npayment the debt or other obligation secured by the mortgage be reduced\nand further directing the register or clerk of every county in which the\nmortgaged premises are located to mark said mortgage reduced of record\nupon the production and delivery to such register or clerk of a\ncertified copy of the order and the receipt of such officer showing that\nthe amount required by said order and which receipt shall be recorded,\nfiled and indexed by any such register or clerk in the same manner as a\ncertificate of discharge of a release from lien of mortgaged premises.\nSaid receipt need not be acknowledged to entitle it to be recorded. The\ncourt in its discretion, when granting any such order after application\ntherefor pursuant to subdivision two of this section, may award costs\nand reasonable attorneys' fees to the person making the application, in\nthe absence of the showing of a valid reason for the failure or refusal\nto execute the partial release from lien of mortgaged premises and\ndeliver the same. The money deposited shall be payable to the mortgagee,\nhis representatives or assigns, less any court costs and reasonable\nattorneys' fees allowed by the court as herein provided which shall be\npaid to the owner of the mortgaged premises who has made application for\nthe order herein referred to upon an order of the supreme court or\ncounty court, directing the payment thereof to such owner upon such\nevidence as to his right to receive the same as shall be satisfactory to\nthe court.\n 6. Wherever any register or clerk shall record any order and receipt\nas hereinbefore specified, he shall mark the record of said mortgage, if\nsame be recorded, as follows:\n "Part of the premises herein described have been released from lien of\nthis mortgage by order of the__________________court, County of\n___________, dated___________and filed____________a description of the\nproperty so released being contained in such order" and thereupon the\nlien of such mortgage shall be deemed to be released as to the premises\nso described in such order and the debt or obligation secured thereby\nshall be deemed to be reduced as provided in such order. Said register\nor clerk shall be permitted to charge for recording and filing said\norder and receipt, the same fees to which he is entitled for recording\nand filing a certificate of release of lien of mortgaged premises.\n 7. The word "mortgagee" whenever used in this section shall be\nconstrued to include the persons entitled to enforce or satisfy the\nmortgage and the personal representatives, successors and assigns, of\nsuch persons.\n 8. Nothing contained in this section shall limit or abridge any rights\nor remedies otherwise available at law or in equity to the owner of the\nmortgaged premises or any other person having an interest in such\nmortgaged premises.\n