Usa Alabama

USA Statutes : alabama
Title : Title 35 PROPERTY.
Chapter : Chapter 10 MORTGAGES.
Section 35-10-1 Section 35-10-1Power of sale constitutes part of security; by whom executed; effect of conveyance; index of foreclosure deeds.

Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured; and a conveyance of the lands sold under such power of sale to the purchaser at the sale, executed by the mortgagee, any assignee or other person entitled to the money thus secured, his agent or attorney, or the auctioneer making the sale, vests the legal title thereto in such purchaser. Probate judges shall index foreclosure deeds by the names of the original grantor and grantee in the mortgage, and also by the names of the grantor and grantee in the foreclosure deeds.

(Code 1852, §1319; Code 1967, §1589; Code 1876, §2198; Code 1886, §1844; Code 1896, §1040; Code 1907, §4896; Code 1923, §9010; Code 1940, T. 47, §164.)Section 35-10-2 Section 35-10-2Sale under power where instrument silent as to place or terms of sale.

If a deed of trust or mortgage, with power of sale, is silent as to the place or terms of sale, or as to the character or mode of notice, a sale may be made at the courthouse door of the county wherein the land is situated, after condition broken, for cash to the highest bidder, after 30 days' notice of the time, place and terms of sale by publishing such notice once a week for four consecutive weeks in a newspaper published in the county wherein said lands or property in said mortgage or deed of trust are situated.

(Code 1923, §9011; Code 1940, T. 47, §165.)Section 35-10-3 Section 35-10-3Foreclosure when instrument contains no power of sale.

If no power of sale is contained in a mortgage or deed of trust, the grantee or any assignee thereof, at his option, after condition broken, may foreclose same either in a court having jurisdiction of the subject matter, or by selling for cash at the courthouse door of the county where the property is situated, to the highest bidder, the lands embraced in said mortgage or deed of trust, after notice of the time, place, terms and purpose of such sale has been given by four consecutive weekly insertions of such notice in some newspaper published in the county wherein said lands, or a portion thereof are situated.

(Code 1923, §9012; Code 1940, T. 47, §166.)Section 35-10-4 Section 35-10-4Sale of lands situated in two or more counties.

Where the lands embraced in any mortgage or deed of trust are situated in two or more counties and no provision is made in said mortgage for the sale, on condition broken, of all of said lands or any portion thereof, then, at the option of the grantee or of any assignee or owner of said mortgage or deed of trust, said lands may be sold at the courthouse door of any county wherein any portion of said lands is situated, after 30 days' notice of the time, place, terms and purpose of such sale, by publishing such notice once a week for four consecutive weeks in some newspaper published in each county in which said lands or any portion thereof are situated.

(Code 1923, §9013; Code 1940, T. 47, §167.)Section 35-10-5 Section 35-10-5Foreclosure deed conveys legal title.

In the case of a foreclosure under sections 35-10-2 through 35-10-4, the foreclosure deed executed by the mortgagee or his transferee, or the owner of the debt secured thereby, or his agent or attorney or personal representative, shall operate to convey the legal title to the lands sold to the purchaser at such sale.

(Code 1923 §9014; Code 1940, T. 47, §168.)Section 35-10-6 Section 35-10-6Additional satisfaction permitted under continuing power of sale.

The sale of any part of the property conveyed by mortgage, either under power of sale contained in the mortgage, or by foreclosure, shall operate as a foreclosure of the mortgage only as to the property sold, and if the mortgage indebtedness is not thereby satisfied in full, the other property contained in the mortgage continues as security for the mortgage debt and there may be a further foreclosure of the mortgage, either by sale under power of sale or by foreclosure. Every power of sale contained in the mortgages hereafter executed shall, unless otherwise expressly provided therein, be held to give a continuing power of sale authorizing the mortgagee or his assignee after the law day of the mortgage to sell the mortgaged property from time to time in separate lots or parcels as it comes into his possession.

(Code 1923, §9015; Code 1940, T. 47, §169.)Section 35-10-7 Section 35-10-7Sale to be held in county where property situated.

All sales of real estate, under powers of sale contained in mortgages and deeds of trust shall be held in the county where all or part of said real estate is situated.

(Acts 1923, No. 494, p. 658; Code 1923, §9016; Code 1940, T. 47, §170.)Section 35-10-8 Section 35-10-8How notice of sale given.

Notice of said sale shall be given in the manner provided in such mortgage or deed of trust or in this Code in the county where the mortgagor resides and the land, or a part thereof, is located; but, if said mortgagor does not reside in the county where the land or any part thereof is located, then such notice must be published in the county where said land, or any material part thereof, is located; provided, that notice of all sales under powers of sale contained in mortgages and deeds of trust executed after July 1, 1936, where the amount secured is $500.00 or more, shall be given by publication once a week for three successive weeks in some newspaper published in the county in which such land or any portion thereof is situated, and said notice of sale must give the time, place and terms of said sale, together with a description of the property to be sold.

(Acts 1923, No. 494, p. 658; Code 1923, §9017; Acts 1936, Ex. Sess., No. 123, p. 82; Code 1940, T. 47, §171.)Section 35-10-9 Section 35-10-9Sales contrary to article null and void.

All sales of real estate, made under powers contained in mortgages or deeds of trust contrary to the provisions of this article, shall be null and void, notwithstanding any agreement or stipulation to the contrary.

(Code 1923, §9018; Code 1940, T. 47, §172.)Section 35-10-10 Section 35-10-10Sections 35-10-7 through 35-10-9 not applicable to mortgages or deeds of trust executed before September 29, 1923.

The provisions of sections 35-10-7 through 35-10-9 shall not apply to mortgages or deeds of trust executed before September 29, 1923.

(Code 1923, §9019; Code 1940, T. 47, §173.)Section 35-10-11 Section 35-10-11Definitions.

Unless the context otherwise requires, the words defined in this section shall have the following meanings when they appear in this article:

(1) MORTGAGE. Any mortgage, deed of trust, or any other instrument intended to secure the payment of money, such as an instrument which includes a vendor's lien.

(2) MORTGAGEE. All mortgagees, grantees or creditors in any mortgages, any trustees under deeds of trust, or any persons entitled to the money secured by any instrument intended to secure the payment of money such as an instrument which includes a vendor's lien.

(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §1.)Section 35-10-12 Section 35-10-12Execution of foreclosure by power of sale; effect; indexing of deeds.

Where a power to sell lands is given in any mortgage, the power is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured. A conveyance of the lands sold under such power of sale to the purchaser at the sale may be executed by the mortgagee, their agents, attorneys or any person making the sale. Such conveyance vests the legal title of the lands sold under the power of sale to the purchaser at the sale. Probate judges shall index foreclosure deeds by the name of the original grantor and grantee in the mortgage, deed of trust or other conveyance intended to secure the payment of money, and also by the names of the grantor and grantee in the foreclosure deed.

(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479 §2.)Section 35-10-13 Section 35-10-13Notice of sale; minimum standards.

Notice of said sale shall be given in the county where said land is located.

Notice of all sales under this article shall be given by publication once a week for three successive weeks in a newspaper published in the county or counties in which such land is located. If there is land under the mortgage in more than one county the publication is to be made in all counties where the land is located. The notice of sale must give the time, place and terms of said sale, together with a description of the property.

If no newspaper is published in the county where the lands are located, the notice shall be placed in a newspaper published in an adjoining county. The notice shall be published in said adjoining county for three successive weeks.

(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §3.)Section 35-10-14 Section 35-10-14Place and time for conducting foreclosure by power of sale.

The power to sell lands under this article must be exercised at the appropriate courthouse door considered the front or main door to the courthouse, of the county where the mortgaged land or a substantial and material part thereof, is located.

The sale shall be held between the hours of 11 A.M. and 4 P.M. on the day designated for the exercise of the power to sell the land.

(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §4.)Section 35-10-15 Section 35-10-15Successive sales under power permitted.

The sale of any part of the property conveyed by mortgage, deed of trust, or other instruments intended to secure the payment of money, either under a power of sale contained in a mortgage, or by a judicial foreclosure, shall operate as a foreclosure of the mortgage only as to the property sold, and if the mortgage indebtedness is not thereby satisfied in full, the other property contained in the mortgage continues as security for the mortgage debt and there may be a further foreclosure of the mortgage, either by sale under power of sale or by foreclosure.

Every power of sale contained in mortgages unless otherwise expressly provided therein, is held to give a continuing power of sale authorizing the mortgagee or his assignee after default, to sell the mortgaged property from time to time in separate lots or parcels.

(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §5.)Section 35-10-16 Section 35-10-16Law governing applicability.

Mortgages executed prior to January 1, 1989, shall be governed by article 1 of chapter 10, Title 35.

This law shall apply only to mortgages executed after December 31, 1988.

(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §6.)Section 35-10-20 Section 35-10-20When indebtedness presumed to have been paid.

As to third parties without actual notice or knowledge to the contrary, the indebtedness secured by any recorded mortgage, or reservation of vendor's lien, either in deed of conveyance or note, bond or contract of purchase covering real estate 20 years past due according to the original maturity date, or some new date fixed by a duly recorded extension agreement, shall be conclusively presumed to have been paid unless the record of such mortgage or lien shows a credit by the mortgagee, or lienee, or owner of the debt, or his assignee of one or more payments upon such indebtedness within the 20 years last passed. And if the final maturity date of the debt is not shown by the mortgage or lien, or a recorded extension agreement, or cannot be determined by calculation from the recitals contained therein, then the time shall run from the date of the mortgage or lien.

The notation of credits mentioned in the next preceding paragraph may be made upon the record of any such mortgage, or vendor's lien, by the owner of the indebtedness, or someone holding a duly recorded power of attorney authorizing it. Such notation must show the date of the payment made, the date the entry was made upon the record, and be witnessed by the probate judge of the county, or his duly authorized clerk.

Nothing in this section shall be interpreted as changing existing laws as to the rights of parties, or their devisees, or heirs-at-law to such mortgagees and lienholders as among themselves.

This section shall not apply to mortgages and deeds of trust executed by corporations and political subdivisions securing bonds and in which the maturity dates of the respective series of bonds which are permitted to be issued thereunder are not fixed in the mortgage or deed of trust.

(Acts 1939, No. 190, p. 347; Code 1940, T. 47, §174.)Section 35-10-21 Section 35-10-21When payment required to be entered in record.

The owner or holder of any recorded lien other than those specified in section 35-10-22, who has received payment in full or partial payments of the debt so secured by the recorded lien, must, upon request in writing, enter on the margin of the record of such recorded lien, the amount and date of such payment and the amount of the debt which remains unpaid at that date which was so secured by the recorded lien.

(Code 1923, §9021; Code 1940, T. 47, §176.)Section 35-10-22 Section 35-10-22Partial payments - When entered on margin of record.

A mortgagee or the assignee or transferee of a debt secured by mortgage, or trustee or his assignee or transferee or cestui que trust of a deed of trust to secure a debt, who has received partial payment, if the mortgage or deed of trust is of record, must, upon request in writing to enter the date and amount of such partial payment by the mortgagor, or by a judgment creditor, or other creditor of the mortgagor having a lien or claim on the property mortgaged, or by a purchaser from the mortgagor, or upon the written request of the debtor in a deed of trust, enter on the margin of the record of the mortgage or deed of trust the date and amount of such partial payment or payments; a mortgagee or the assignee or transferee of a debt secured by mortgage, or trustee or his assignee or transferee or cestui que trust of a deed of trust to secure a debt, if the mortgage or deed of trust is of record, must, upon request in writing, of any judgment creditor or other creditor of the mortgagor having a lien or claim on the property mortgaged, or by a purchaser from the mortgagor, or upon the written request of the debtor or mortgagor, enter on the margin of record of the mortgage or deed of trust a statement of the total unpaid amount secured by said mortgage or deed of trust.

(Code 1886, §1868; Code 1896, §1065; Code 1907, §4897; Acts 1915, No. 386, p. 353; Code 1923, §9020; Code 1940, T. 47, §175.)Section 35-10-23 Section 35-10-23Partial payments - Notices or demands to enter partial payments or satisfaction.

All notices or demands to enter partial payments or satisfaction of balance of debt secured as is provided in section 35-10-21 shall be in writing and signed by the party or parties who are entitled to have the entries of record made, or by their personal representative, or by their agents duly authorized in writing to give such notices or make such demand; and the notice or demand shall be served in person upon the owner or holder of such lien or upon his agent who is authorized to receive payment of such debt, or any part secured by the lien, or by mailing by registered or certified mail with request for return receipt, a copy of such written demand or notice to such owner or holder of the lien or to any agent of his who would be authorized to receive such payments of the debts or demands so secured by the recorded lien. This letter must be addressed to the usual known address of such owner or holder of such lien or his agent as above specified with sufficient postage prepaid; but such notice or demand given by public mail as above provided shall be only prima facie evidence that the notice or demand so mailed was received by the addressee.

(Code 1923, §9022; Acts 1932, Ex. Sess., No. 60, p. 82; Code 1940, T. 47, §177.)Section 35-10-24 Section 35-10-24Partial payments - Entry by execution and delivery of separate instrument.

(a) Any person required by the provisions of this article, and more particularly sections 35-10-21 through 35-10-24 thereof, to make any entry of partial payment on the margin of the record may fully discharge his obligation to make such entry by executing a separate instrument which properly identifies such mortgage, deed of trust or other encumbrance, and which clearly states the information required otherwise to be entered on the record or margin thereof, and by delivering such instrument or depositing the same in the United States mail properly stamped and addressed, to the person who requests such entry, but the person requested to make such entry shall not be required to file such separate instrument for record; provided, that such separate instrument so to be furnished shall be so prepared and acknowledged that the same shall be admitted to record in the office of the judge of probate where such mortgage, deed of trust or other encumbrance is recorded.

(b) The execution and delivery, as provided in this section, of the separate instrument setting forth the date and amount of credit or partial payment shall be conclusively deemed to be a full compliance with any requirement of the provisions of said sections 35-10-21 through 35-10-24 for entry of partial payments on any record in any probate office of this state.

(Acts 1969, No. 221, p. 542.)Section 35-10-25 Section 35-10-25Executors and administrators authorized to execute releases, etc.

Any executor of a will or administrator of an estate duly appointed by the proper court shall have authority to execute releases and discharges and may enter satisfaction on the margin of the record of any mortgage, lien or other encumbrance in favor of a decedent when payment of such mortgage, lien or encumbrance was made to said decedent in his lifetime.

(Code 1923, §9025; Code 1940, T. 47, §180.)Section 35-10-26 Section 35-10-26Title revested upon payment of debt.

The payment or satisfaction of the real property mortgage debt divests the title passing by the mortgage. 'Payment or satisfaction of the real property mortgage debt' shall not occur until there is no outstanding indebtedness or other obligation secured by the mortgage, and no commitment or agreement by the mortgagee to make advances, incur obligations or otherwise give value (collectively referred to as 'extend value'), under any agreement, including, without limitation, agreements providing for future advances, open end, revolving or other lines of credit, or letters of credit. Upon the written request to satisfy a mortgage signed by the mortgagors and by all other persons who have a right to require the mortgagee to extend value or signed by other authorized representatives on behalf of the mortgagors and such other persons, which notice shall actually be served upon the mortgagee, and provided there is no outstanding obligation secured by the mortgage at that time, the mortgagee shall file a properly executed and notarized satisfaction of the mortgage or otherwise cause the mortgage to be satisfied in accordance with other applicable provisions of law. From and after such written request for mortgage satisfaction, neither the mortgagors nor any other person who signed such request, or on whose behalf such request was signed, shall have the right to request or demand that the mortgagee extend value under the mortgage or other agreements and the mortgagee shall be released from all obligations and commitments to extend value thereunder.

(Code 1886, §1870; Code 1896, §1067; Code 1907, §4899; Code 1923, §9026; Code 1940, T. 47, §181; Acts 1988, No. 88-89, p. 115.)Section 35-10-27 Section 35-10-27Entry of full payment or satisfaction in record - Generally.

If a mortgage or deed of trust which is of record has been fully paid or satisfied, the mortgagee or transferee or assignee of the mortgage, or trustee or cestui que trust of the deed of trust, who has received payment or satisfaction, must on request in writing of the mortgagor, or of a creditor of the mortgagor having a lien or claim on the property mortgaged, or of a purchaser from the mortgagor, or owner of the lands mortgaged, or a junior mortgagee, or of the debtor in a deed of trust, enter the fact of payment or satisfaction on the margin of the record of the mortgage or deed of trust. Such entry must be witnessed by the judge of probate, or his clerk, who, in his official capacity, must attest said satisfaction, and for making such attestation the judge of probate is entitled to a fee of $.25. Or satisfaction may be made by an attorney-in-fact authorized by an instrument executed and acknowledged as is required of conveyances and filed for record, which entry need not be attested. Such entry operates as a release of the mortgage or deed of trust, and is a bar to all actions thereon.

(Code 1852, §§1343, 1344; Code 1867, §§1613, 1614; Code 1876, §§2222, 2223; Code 1886, §1869; Code 1896, §1066; Code 1907, §4898; Code 1923, §9023; Code 1940, T. 47, §178.)Section 35-10-28 Section 35-10-28Entry of full payment or satisfaction in record - Satisfaction by one of several joint mortgagees, etc.

The satisfaction in full by any one of several joint mortgagees, or his successors or assigns, on the margin of the record, and properly attested by the probate judge, or his chief clerk, or the filing of a release by such party properly notarized, acknowledging full satisfaction of any mortgage in the names of two or more persons jointly as mortgagees standing on the probate records of any county in this state, shall be sufficient to extinguish the lien of such mortgage.

The provisions of this section shall also relate to and be effective as to vendor's liens reserved in deeds or other instruments of record in any probate office in this state.

(Acts 1966, Ex. Sess., No. 406, p. 552, §§1, 2.)Section 35-10-29 Section 35-10-29Entry of full payment or satisfaction in record - Vendor's or other lien reserved in conveyance.

When a vendor's or other lien is reserved in any conveyance, which is of record, of real or personal property to secure the payment of the purchase money recited in such conveyance, upon the payment in full of such purchase money, the grantor, or his executor, administrator or other person in whom the ownership of such lien is vested at the time of the payment of such purchase money, must, on the request in writing of the grantee, his executor, administrator or assigns, or of a judgment or other creditor of the grantee, enter the fact of payment on the margin of the record of such conveyance in the manner as required by this article. Such entry operates a release of such lien and is a bar to all actions thereon. If for 30 days after such request, the grantor, or his executor, administrator or other person in whom the ownership of such lien is vested at the time of such payment, fails to make such entry, he forfeits to the party making the request $200.00; unless there is pending, or there is instituted an action within that time, in which the fact of payment or satisfaction is or may be contested.

(Code 1896, §1068; Code 1907, §4900; Code 1923, §9027; Code 1940, T. 47, §182.)Section 35-10-30 Section 35-10-30Penalty.

(a) If, for 30 days after such request, the mortgagee or assignee or transferee, trustee or cestui que trust, fails to make any entry required by this article he forfeits to the party making the request $200.00 unless there is pending, or there is instituted, an action within that time, in which the fact of partial payment or satisfaction is or may be contested. In construing this article, the right of action given herein shall be considered as a personal right, and shall not be lost or waived by a sale of the property covered by the mortgage or deed of trust before a demand was made for the satisfaction to be entered upon the record.

(b) All actions for the recovery of the penalties mentioned in this article shall be brought in the county where such mortgage or other instrument is recorded.

(Code 1852, §§1343, 1344; Code 1867, §§1613, 1614; Code 1876, §§2222, 2223; Code 1886, §1869; Code 1896, §1066; Code 1907, §4898; Code 1923, §§9024, 9028; Code 1940, T. 47, §§179, 183.)Section 35-10-50 Section 35-10-50Definitions.

Unless the context otherwise requires, the words defined in this section shall have the following meanings in this article.

(1) DEED IN LIEU OF FORECLOSURE. Any instrument, however denominated, whereby a mortgagor transfers to a mortgagee the mortgagor's rights in mortgaged property.

(2) MORTGAGE. A mortgage, deed of trust or similar security instrument on real property, or instrument creating a vendor's lien on real property, securing the payment of money.

(3) MORTGAGOR. An owner of an interest in mortgaged property.

(4) MORTGAGEE. The owner of the debt secured by a mortgage.

(5) MORTGAGED PROPERTY. Any real property or interest therein that is subject to a mortgage.

(6) EQUITY OF REDEMPTION. The interest the mortgagor has in the mortgaged property.

(Acts 1987, No. 87-660, p. 1168, §1.)Section 35-10-51 Section 35-10-51Effect of deed in lieu of foreclosure.

A deed in lieu of foreclosure:

(1) Transfers to the mortgagee all right, title and interest of the mortgagor in the mortgaged property, including but not limited to all rights of redemption, statutory or equitable, unless expressly otherwise provided therein;

(2) Does not effect a foreclosure of the mortgage covering the mortgaged property;

(3) Does not give rise to a statutory right of redemption in the mortgagor or in any other person;

(4) Does not result in a merger of the mortgagee's rights with the mortgagor's equity of redemption for any purpose; and

(5) Does not affect the rights or interests of any person or entity other than the mortgagor in the mortgaged property.

(Acts 1987, No. 87-660, p. 1168, §2.)

USA Statutes : alabama