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This entry was published on 2014-09-22
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SECTION 1921-A
Partial release from lien of mortgaged premises
Real Property Actions & Proceedings (RPA) CHAPTER 81, ARTICLE 19
§ 1921-a. Partial release from lien of mortgaged premises. 1. Whenever
the owner of mortgaged property situate in this state shall be entitled,
pursuant to the terms of the mortgage encumbering such property, to
obtain the release of a portion thereof from the lien of such mortgage,
then, upon (1) delivery by such owner to the mortgagee of a partial
release from lien of mortgaged premises, in a form entitled to be
recorded, describing the portion of the mortgaged premises so entitled
to be released, together with the fees allowed by law for the taking of
the acknowledgment of a deed, (2) proof that all requirements set forth
in such mortgage as conditions precedent to the execution and delivery
by the mortgagee of such partial release have been satisfied, and (3)
payment, or tender of payment, to the mortgagee of all sums required
under the terms of the mortgage to be paid to obtain such partial
release, such mortgagee must execute and acknowledge before a proper
officer, in like manner as to entitle a conveyance to be recorded, the
partial release theretofore delivered to such mortgagee or such other
partial release from lien of mortgaged premises as may be required to be
executed under the terms of the mortgage, which release shall be in
recordable form.

2. Upon the failure or refusal of any such mortgagee to comply with
the foregoing provisions of this section, any owner of the mortgaged
premises may apply to the supreme court or a justice thereof, or to the
county court or a judge thereof, in or of any county in which the
mortgaged premises or any part thereof are situated in whole or in part,
upon a petition, for an order to show cause why an order should not be
made by such court releasing of record from the lien of said mortgage
the parcel or parcels of land described in said release, and directing
the register or clerk of any county in whose office the same may have
been recorded to mark the same upon his records as released as to the
parcel or parcels described in such order, and further ordering and
directing that the debt or other obligation secured by the mortgage be
reduced in the amount tendered or paid, upon condition that in the event
such mortgage or part thereof is not paid, the sums tendered pursuant to
the foregoing provisions of this section be paid to the officer
specified by law to hold court funds and moneys deposited in court in
the county wherein the mortgaged premises are situated in whole or in
part for the purpose of paying said sum over to the mortgagee. Said
petition must be verified in like manner as a verified pleading in an
action in the supreme court and it must set forth the grounds of the
application.

3. In any case where an actual tender, as provided in subdivision one
of this section, cannot, with due diligence, be made, any owner of the
mortgaged premises may apply to the supreme court or a justice thereof,
or to the county court or a judge thereof, in or of any county in which
the mortgaged premises, or any part thereof are situated in whole or in
part, upon petition setting forth the grounds of the application and
verified as aforesaid, for an order to show cause why an order should
not be made by said court releasing of record the parcel or parcels
described in said release from the lien of the mortgage, and directing
the register or clerk of every county in which the mortgaged premises
are located to mark the same upon his records as released as to the
parcel or parcels described in such order and further ordering and
directing that the debt or other obligation secured by the mortgage be
reduced, upon condition that the prerequisites for obtaining such
release set forth in subdivision one of this section and the sum of the
mortgage required to be paid pursuant to the terms and conditions of
said mortgage and fees allowed by law or the mortgage, be paid to the
officer specified by law to hold court funds and moneys deposited in
court in the county wherein the mortgaged premises are situated in whole
or in part until such time as said sums may be claimed by the mortgagee.

4. Eight days' notice of the application for either of the orders
provided for in subdivisions two and three of this section shall be
given to the mortgagee. Such notice shall be given in such manner as the
court or the judge or justice thereof to whom the petition is presented
may direct, and said court or judge or justice may require such longer
notice to be given as may seem proper. If sufficient cause be shown the
court or judge or justice thereof may issue such order to show cause
returnable in less than eight days.

5. Upon the return day of such order to show cause, the court, upon
proof of due service thereof and on proof of the identity of the
mortgagee and of the person presenting the petition, shall inquire, in
such manner as it may deem advisable, into the truth of the facts set
forth in the petition, and in case it shall appear that said sum or sums
required to be paid pursuant to the terms and conditions of the mortgage
and the fees allowed by law have been duly paid or tendered but not
accepted, said partial release from lien of mortgage instrument has been
duly presented for execution, or that such tender and presentation could
not have been made with due diligence and the prerequisites for
obtaining such release as set forth in subdivision one of this section
have been met, then, in the event that portion of the lien of such
mortgage required to be released pursuant to the terms and conditions
thereof is not so released, the court shall make an order directing the
sums so tendered, or in a case where such tender could not have been
made as aforesaid, directing the sum or sums so required and the fees
allowed by law, to be paid to the officer specified by law to hold court
funds and moneys deposited in court in the county wherein the
application herein is made, and directing and ordering that upon such
payment the debt or other obligation secured by the mortgage be reduced
and further directing the register or clerk of every county in which the
mortgaged premises are located to mark said mortgage reduced of record
upon the production and delivery to such register or clerk of a
certified copy of the order and the receipt of such officer showing that
the amount required by said order and which receipt shall be recorded,
filed and indexed by any such register or clerk in the same manner as a
certificate of discharge of a release from lien of mortgaged premises.
Said receipt need not be acknowledged to entitle it to be recorded. The
court in its discretion, when granting any such order after application
therefor pursuant to subdivision two of this section, may award costs
and reasonable attorneys' fees to the person making the application, in
the absence of the showing of a valid reason for the failure or refusal
to execute the partial release from lien of mortgaged premises and
deliver the same. The money deposited shall be payable to the mortgagee,
his representatives or assigns, less any court costs and reasonable
attorneys' fees allowed by the court as herein provided which shall be
paid to the owner of the mortgaged premises who has made application for
the order herein referred to upon an order of the supreme court or
county court, directing the payment thereof to such owner upon such
evidence as to his right to receive the same as shall be satisfactory to
the court.

6. Wherever any register or clerk shall record any order and receipt
as hereinbefore specified, he shall mark the record of said mortgage, if
same be recorded, as follows:

"Part of the premises herein described have been released from lien of
this mortgage by order of the__________________court, County of
___________, dated___________and filed____________a description of the
property so released being contained in such order" and thereupon the
lien of such mortgage shall be deemed to be released as to the premises
so described in such order and the debt or obligation secured thereby
shall be deemed to be reduced as provided in such order. Said register
or clerk shall be permitted to charge for recording and filing said
order and receipt, the same fees to which he is entitled for recording
and filing a certificate of release of lien of mortgaged premises.

7. The word "mortgagee" whenever used in this section shall be
construed to include the persons entitled to enforce or satisfy the
mortgage and the personal representatives, successors and assigns, of
such persons.

8. Nothing contained in this section shall limit or abridge any rights
or remedies otherwise available at law or in equity to the owner of the
mortgaged premises or any other person having an interest in such
mortgaged premises.