If a lender presents a satisfaction-of-mortgage certificate but the county clerk's records don't show the lender as the last recorded assignee, can the clerk mark the mortgage discharged?

Plain-English summary

A lending institution sent a certificate of satisfaction to the Cayuga County Clerk for a mortgage, claiming to be the most recent assignee. The county clerk's records, however, did not show that lender as the assignee. Without an unbroken chain of recorded assignments leading to that lender, the clerk faced a choice: mark the mortgage discharged anyway, refuse the certificate entirely, or take some middle path. The County Attorney asked the Attorney General which option was correct.

Attorney General Eliot Spitzer's office reached the same conclusion as a 1953 AG opinion on similar facts: the clerk cannot mark the mortgage discharged but can (and must) file and record the certificate. Real Property Law § 321(1)(b) limits the clerk's authority to mark a mortgage discharged to certificates signed by "the person who appears from the record to be the last assignee" or their personal representative. The lender here did not appear in the recorded chain of title, so the clerk lacked statutory authority to mark the discharge.

But § 321(2)(b) requires the clerk to record "every other instrument relating to a mortgage" if it is properly acknowledged, including "certificates purporting to discharge a mortgage" signed by persons other than those specified in § 321(1). So the certificate is filed and recorded; it just does not result in marking the mortgage as discharged. The lender's recourse is to record the missing assignments first, then submit a satisfaction.

The policy: the recording acts exist to give title searchers a reliable public record. If the clerk could mark a mortgage discharged based on an unrecorded chain of title, title searchers could not trust their searches. Requiring assignments to be in the record before discharge protects subsequent purchasers and ensures the clerk does not have to investigate facts outside the record.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Real Property Law § 321 has been amended since 2005 to address electronic recording, MERS (Mortgage Electronic Registration Systems) issues, and other modern recording-system developments. The Mortgage Electronic Recording Modernization Act and related provisions have changed the recording landscape. Current practice should be verified against the current statutes and county recording office procedures.

Common questions

Q: What is a "certificate of satisfaction"?
A: A written instrument acknowledging that a mortgage debt has been paid in full, signed by the mortgagee (or last recorded assignee) and presented to the recording officer to clear title. When recorded properly, it lets the recording officer mark the mortgage discharged in the records.

Q: Why does the clerk care about the chain of assignments?
A: To ensure that the person signing the satisfaction has authority to discharge. If unrecorded assignments are accepted, a title searcher would not see who currently held the mortgage; the clerk could not verify the signer's authority without going outside the record.

Q: What happens if a lender's chain of assignments was never recorded?
A: The lender has two paths. (1) Record the missing assignments first, then submit the satisfaction; the clerk can then mark the discharge. (2) Under RPL § 321(3), the clerk can record a certificate of discharge simultaneously with the missing assignment if the certificate states that the assignment is being recorded simultaneously.

Q: Why does the clerk still record the certificate if it can't mark the discharge?
A: Section 321(2)(b) treats any certificate purporting to discharge a mortgage as an instrument that goes into the public record. The recording itself serves notice; the clerk's authority to mark the underlying mortgage as discharged is a separate question.

Q: How does this protect title insurance and home buyers?
A: The recording acts give title searchers a reliable public record. Andy Assoc., Inc. v. Bankers Trust Co. described the dual purpose: notice to potential purchasers and protection of innocent buyers from prior encumbrances. By requiring an in-record chain of assignments before marking a mortgage discharged, the system preserves that reliability.

Q: What about partial assignments or multi-name mortgages?
A: RPL § 321(1)(c)-(g) handles partial assignments, joint mortgagees, and similar scenarios. The opinion did not delve into those specifics.

Background and statutory framework

The recording acts in New York operate on a notice-and-priority system. Andy Assoc., Inc. v. Bankers Trust Co. (1979) describes the dual purpose: (1) establishing a public record so potential purchasers know about prior encumbrances and conveyances, and (2) protecting innocent purchasers who acquire interests without knowledge of those prior encumbrances.

RPL § 321 implements that system for mortgage discharges. Subsection (1)(a) governs the simple case where no assignment appears in the record; the mortgagee (or personal representative) must sign. Subsection (1)(b) governs the assigned case; the certificate must be signed by the last recorded assignee. Subsection (1)(c)-(g) handles partial assignments and similar variants. Subsection (3) requires the certificate to list each assignment in the chain of title and to state whether each is recorded.

Subsection (2)(b) is the catchall: any instrument purporting to discharge or relate to a mortgage must be recorded if properly acknowledged, even if the recording officer is not authorized to mark the discharge. The two functions, recording and marking discharged, are separate and serve different statutory purposes.

The opinion's bottom line is structural: the clerk does not investigate facts beyond the record. If the chain of title shows a different last assignee, the clerk cannot mark the discharge on the word of someone outside the record. The remedy is to record the missing assignments first.

Citations and references

Statutes:

• Real Property Law § 290(3) (definition of conveyance)
• Real Property Law § 321(1)(a) (no recorded assignment)
• Real Property Law § 321(1)(b) (recorded assignment; last assignee required)
• Real Property Law § 321(1)(c)-(g) (multiple-name and partial-assignment variants)
• Real Property Law § 321(2)(b) (clerk must record any instrument relating to a mortgage if properly acknowledged)
• Real Property Law § 321(3) (certificate must state assignment chain)

Cases:

• Andy Assoc., Inc. v. Bankers Trust Co., 49 N.Y.2d 13 (1979)

Prior AG opinions:

• 1953 Op. Att'y Gen. (Inf.) 142 (same result on similar facts)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-2_pw.pdf

Original opinion text

REAL PROPERTY LAW § 321.

County Clerk is not authorized to mark a mortgage as discharged when presented with a certificate of satisfaction signed by other than the mortgagee or last assignee of record or their personal representative, but may record such certificate.

February 3, 2005

Frederick R. Westphal
County Attorney
Cayuga County
Office of County Attorney
160 Genesee St., 6th Floor
Auburn, New York 13021

Informal Opinion
No. 2005-2

Dear Mr. Westphal:

You have asked whether a county clerk has authority to record a mortgage as discharged where the clerk is presented with a certificate of satisfaction, signed by a lending institution purporting to be the most recent assignee of the mortgage, but the records of the county clerk's office do not show that this lending institution is the assignee of that mortgage. You note that in a 1953 opinion addressing similar facts, this office concluded that a county clerk was not authorized to mark the record of a mortgage with the word "discharged," but was required to file and record the certificate. See 1953 Op. Att'y Gen. (Inf.) 142. We conclude that under Real Property Law ("RPL") § 321, the same result is required today.

RPL § 321(1)(a) provides that where it does not appear from the record that any interest in a mortgage has been assigned, a certificate of satisfaction must be signed by the mortgagee or the mortgagee's personal representative in order for the recording officer to mark the record of the mortgage as "discharged." Where it appears from the record that a mortgage has been assigned, the recording officer cannot mark the record of that mortgage with the word "discharged" unless a certificate is signed by "the person who appears from the record to be the last assignee" of the mortgage, or his or her personal representative. RPL § 321(1)(b).

This requirement, authorizing the clerk to mark the record of a mortgage as discharged when presented with a certificate of discharge signed by the person who appears "from the record" to be the last assignee of that mortgage, advances the dual purposes of the recording acts, i.e., "to establish a public record which would furnish potential purchasers with notice" of previous encumbrances or conveyances, including assignments, and "to protect the rights of innocent purchasers who acquire an interest in property without knowledge of prior encumbrances." See Andy Assoc., Inc. v. Bankers Trust Co., 49 N.Y.2d 13, 20 (1979). RPL § 321(1)(b) serves those purposes, in part, by requiring the last assignee of a mortgage to make his or her assignment part of the public record. Requiring that an assignee presenting a certificate to be marked as discharged be the last assignee of record also promotes a policy of consistency and reliability: the County Clerk does not have to rely on other documents outside the record to determine who is the true assignee entitled to have the mortgage discharged.

Other provisions of section 321 are not to the contrary. Section 321(3) requires that a certificate presented for recording where a mortgage has been assigned include the date of each assignment in the chain of title whether or not such assignment has been recorded. See RPL § 321(3). But this is not inconsistent with the limitation that the record of a mortgage may not be marked as discharged where a mortgage has been assigned unless the recording officer is presented with a certificate of satisfaction signed by the last assignee of record. In both cases, the statute distinguishes between recorded and unrecorded assignments.

RPL § 321(3) also provides that "if the assignment is being recorded simultaneously with the certificate of discharge, the certificate of discharge shall so state." In the present case, however, you have indicated that the lending institution presented the clerk only with a purported certificate of satisfaction, and did not present any assignment for recording. Under these circumstances, where the county clerk's records do not show that this lending institution is the mortgagee or the last assignee of record, the clerk would not be authorized to mark the record of the mortgage as discharged. See RPL § 321(1)(a),(b).

Under RPL § 321(2)(b), however, a recording officer is required to record "every other instrument relating to a mortgage," if that instrument is properly acknowledged or proved in a manner entitling a conveyance to be recorded. Such instruments include "certificates purporting to discharge a mortgage" that are signed by persons other than those specified in RPL § 321(1). RPL § 321(2)(b). Therefore, this provision appears to require the county clerk to file and record the certificate at issue, assuming it was properly acknowledged. However, as noted above, it would not authorize the clerk to mark on the record that the mortgage has been discharged under the facts as you have described them, where it does not appear from the record that this institution is the mortgagee or the last assignee of record.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,
LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By: _____
Ann P. Zybert
Assistant Solicitor General