Could a South Carolina register record a mortgage satisfaction when assignments to its current holder were missing?

Plain-English summary

Sumter County's register of deeds asked whether she could record a satisfaction signed by a company claiming to be the current mortgage holder when assignments to it were missing and unrecorded. The 2001 informal opinion said she appeared to have adequate authority to accept the satisfaction if the company possessed the mortgage and supplied an affidavit explaining the missing assignments. The writer suggested describing that gap in the index or other records so a reader would have notice of the circumstances.

The statute did not expressly provide for an affidavit of lost assignment. The AG reached its qualified conclusion by reading its provisions for lost mortgage instruments and attorney affidavits of payment together with the recording problem presented. It suggested a statutory amendment for future cases of this kind.

Currency note

This opinion was issued in 2001. 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.

Common questions

Q: Did missing, unrecorded assignments automatically prevent this satisfaction from being recorded?
A: The AG thought not, given the holder's possession of the mortgage and affidavit explaining the missing links. It framed its answer as apparent authority rather than an express statutory command.

Q: Why did the earlier opinion about recorded assignments differ?
A: That opinion said a satisfaction should be executed by the assignee shown in the record. Here, no intervening assignments had been recorded, so the claimed holder did not appear as an assignee of record.

Q: What did the AG suggest putting in the index?
A: A description sufficient to alert a searcher that the assignments were missing and explain the circumstances of the satisfaction.

Background and statutory framework

The letter applied the mortgage satisfaction statute by analogy to its express affidavit paths. The holder's affidavit provided an explanation for the missing assignment chain, while the suggested index entry preserved notice of that uncertainty.

Citations and references

• § 29-3-330 (c)
• §29-3-330(e)
• State v. Hudson

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-24-2001-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01jan-24-reardon.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY G ENERAL

January 24, 2001

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The Honorable Janice M. Rearden
Register of Deeds
Sumter County
141 N. Main street
Sumter, SC 29150
Dear Ms. Rearden:

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You have requested the Opinion of this Office as to whether you may record a satisfaction of a mortgage by a company that has executed an affidavit stating that it is the current mortgagee of the mortgage through assignments that are missing and unrecorded. The company has executed a statement on the mortgage noting that it has been satisfied. A previous Opinion ofthis Office concluded that, when the records show that a mortgage has been assigned, the recording officer should not accept a satisfaction for recording unless executed by the assignee appearing of record. Ops. Atty. Gen. (October 20, 1992). In the instant matter, because the assignments were not recorded, the current mortgagee does not appear of record as an assignee of the mortgage. When the mortgagee has possession of the mortgage and has executed an affidavit of missing assignment, you appear to have adequate authority under South Carolina law to accept the satisfaction for recording. S.C. Code Ann.§ 29-3-330 (c) permits an affidavit by the current holder of a lost or destroyed" ... mortgage, deed of trust or other instrument securing the payment of money and being a lien upon real property ... " (Supp. 2000). In the instant matter, the mortgage has not been lost, but the assignment is missing. In both of the above situations, an element of the transaction is missing, but the reliability of the recording is provided by an affidavit of the holder explaining the circumstances. In addition, §29-3-330(e) allows for the satisfaction ofa mortgage by someone other than the mortgagee of record in its provisions for an attorney to record an affidavit that the mortgage has been paid and that evidence of payment exists. Although section 29-3-330 does not make express provision for recording of an affidavit of lost assignment, such a filing is

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The Honorable Janice M. Rearden
January 24, 2001
Page 2
consistent with a reasonable and practical reading 1 of this statute including its provisions allowing for satisfaction of lost mortgages and satisfaction based upon an attorney's affidavit. While you should be able to record the instruments and note the satisfaction in your index, I suggest that you note in the appropriate place in your index or other records a description sufficient to put someone on notice about the circumstances of the satisfaction including that the assignments are missing. As to any similar future transactions, you may want to consider seeking an amendment to §29-3-3 30 that would make express provision for the handling of satisfactions under these circumstances.

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This letter is an informal opinion. It has been written by the designated Assistant Deputy Attorney General and represents the opinion of the undersigned attorney as to the specific questions asked. It has not, however, been personally reviewed by the Attorney General nor officially published in the manner of a formal opinion. If you have further questions, please let me know.

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CC:

Johnathon Werber Bryan, Esquire, Sumter County Counsel

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1

State v. Hudson, 336 S.C. 237, 519 S.E.2d 577, 582 (Ct. App.1999) (statutory provisions should be given reasonable and practical construction consistent with purpose and policy of entire act).