Satisfaction of an “Ancient” Mortgage
If a mortgage has been satisfied the mortgagee is required to sign the satisfaction in order to remove the lien on the property. However, in cases where the mortgagee dies, cannot be located or refuses to sign the satisfaction, the mortgagor has options available to remove the mortgage as a lien on the real property. If a mortgagee is deceased, an executor of the deceased mortgagee can sign the satisfaction in the mortgagee’s place.
If it is not possible for an executor of the mortgagee to sign the satisfaction, or if the executor cannot be found, the mortgagor will need to proceed to have the lien removed by initiating a civil suit in order to quiet an ancient mortgage. An ancient mortgage is one for which the last payment came due more than twenty years ago. (Guccione v. Estate of Guccione, 84 A.D.3d 867, 871, 923 N.Y.S.2d 591 (2011) (citing Matter of Grasso, 168 A.D.2d 713, 713, 563 N.Y.S.2d 569 (1990) (“Supreme Court properly discharged mortgage, which was due over 20 years ago”); 78 N.Y. Jur. 2d Mortgages § 398.
The applicable statutory provision regarding quieting ancient mortgages is RPAPL § 1931. Mortgagors attempting to quiet an ancient mortgage under this provision need to establish several items before the court will decide to quiet the mortgage. The petition must describe the mortgage, specifically allege that it has been fully paid and when the due date elapsed (Application of Zimmerman, 21 Misc. 2d 1048, 1048, 198 N.Y.S.2d 373, 374 (Sup. Ct. 1960), and that the mortgagee has been dead for over five years. The court may call on witnesses to testify regarding whether the mortgage has been satisfied. The court will also order the mortgagor, mortgagee and any assignees in order to assess whether there are any objections to the mortgage being discharged. A certificate by the county clerk under which the mortgage was filed, constitutes evidence that the mortgage was assigned. If no party denies the mortgage payment, the court will take the lapse of time in payment as evidence that payment has been satisfied. The court may then discharge the ancient mortgage.
In order to avoid the cost and delay of a protracted litigation, the best solution is to find either the mortgagee or an executor of the mortgagee. If neither can be found assemble the proof needed to show that the mortgage was paid and an action will be required.