Repealed or Renumbered
The recording of the assignment of a mortgage is not in itself considered notice of the assignment to the mortgagor or the heirs or personal representatives of the mortgagor, so as to invalidate a payment made by one or more of them to the mortgagee.
In AS 34.20.070 - 34.20.130 'real property' or 'property' includes an interest in real property.
For the purposes of record, a deed of trust, given to secure an indebtedness, shall be treated as a mortgage of real estate, and recorded in full in the book provided for mortgages of real property. The person who makes or executes the deed of trust shall be indexed as 'mortgagor,' and the trustee and the beneficiary or cestui que trust, as the 'mortgagees.'
In AS 34.20.010 - 34.20.060 'conveyance' includes every instrument in writing by which an estate or interest in real property is created, alienated, mortgaged, or encumbered, or by which the title to real property is affected, except a will.
Article 02. DEEDS OF TRUST
(a) The following instruments may be recorded:
(1) an assignment of the beneficial interest under a deed of trust; or
(2) an instrument by which a deed of trust of real property is subordinated or waived as to priority.
(b) From the time it is filed for record, the instrument operates as constructive notice to all persons.
A certificate of discharge provided for in AS 34.20.030 and the proof or acknowledgment of the certificate shall be recorded at full length. A reference shall be made to the book and page containing the record of the certificate or the serial number of the record of the certificate in the entry of the discharge of the mortgage made by the recorder upon the record of the discharge.
When a sale is made by a trustee under a deed of trust, as authorized by AS 34.20.070 - 34.20.130, no other or further action or proceeding may be taken nor judgment entered against the maker or the surety or guarantor of the maker, on the obligation secured by the deed of trust for a deficiency.
A mortgage may be discharged upon the record of the mortgage by the recorder who has custody of the record when there is presented to the recorder a certificate executed by the mortgagee or the personal representatives or assigns of the mortgagee, acknowledged or proved and certified in the manner prescribed in AS 34.15 to entitle conveyances to be recorded, specifying that the mortgage is paid or otherwise satisfied or discharged.
If a mortgagee, or personal representatives, successors in interest or assigns of the mortgagee, after full performance of the condition of the mortgage, whether before or after a breach, for 10 days after being so requested in writing, and after tender of the reasonable charges, neglects or refuses to discharge the mortgage, or to execute and acknowledge a certificate of discharge or release of the mortgage, the mortgagee is liable to the mortgagor, the heirs, successors in interest, representatives or assigns of the mortgagor, in the sum of $300 damages, and also for all damages occasioned by the neglect or refusal.
(a) The date of maturity of an instrument creating a lien upon real property is considered to be 10 years from the date of the instrument, unless
(1) the period of the instrument is disclosed by the terms of the instrument; or
(2) another instrument extending the period of the first instrument or a memorandum of payment of the first instrument is recorded.
(b) When an existing recorded instrument is recorded before March 26, 1955, which creates a lien upon real property but which does not disclose the period of the instrument, another instrument extending the period of the first instrument, or a memorandum of payment of the first instrument may be recorded before January 1, 1956.
Where the payment of an existing contract (a bill of exchange, promissory note, bond, or other evidence of indebtedness) is secured by an instrument creating a lien upon real estate, payment on the contract does not extend the lien beyond its original or extended period as against subsequent purchasers, optionees, mortgagees, creditors, or persons acquiring a lien upon the real estate, unless
(1) a memorandum of the payment is recorded in the office of the recording district where the property is located;
(2) the memorandum is recorded before the end of the statutory time for bringing an action upon the existing contract and extensions as exhibited by the terms of the recorded instrument; and
(3) the memorandum is signed and acknowledged by the owner or the representative of the owner of the existing contract of indebtedness.
(a) The sale and conveyance transfers all title and interest that the party executing the deed of trust had in the property sold at the time of its execution, together with all title and interest that party may have acquired before the sale, and the party executing the deed of trust or the heirs or assigns of that party have no right or privilege to redeem the property, unless the deed of trust so declares.
(b) The purchaser at a sale and the heirs and assigns of the purchaser are, after the execution of a deed to the purchaser by the trustee, entitled to the possession of the premises described in the deed as against the party executing the deed of trust or any other person claiming by, through or under that party, after recording the deed of trust in the recording district where the property is located.
(c) A recital of compliance with all requirements of law regarding the mailing or personal delivery of copies of notices of default in the deed executed under a power of sale is prima facie evidence of compliance with the requirements. The recital is conclusive evidence of compliance with the requirements in favor of a bona fide purchaser or encumbrancer for value and without notice.
(a) The trustee under a trust deed upon real property given to secure an obligation to pay money and conferring no duties upon the trustee other than the duties that are incidental to the exercise of the power of sale conferred in the deed may be substituted by recording in the mortgage records of the recording district in which the property is located a substitution executed and acknowledged by all the beneficiaries under the trust deed, or their successors in interest.
(b) The substitution must contain
(1) the date of execution of the trust deed;
(2) the names of the trustee, trustor, and beneficiary;
(3) the book and page where the trust deed is recorded or the serial number assigned to the trust deed by the recorder;
(4) the name of the new trustee; and
(5) an acknowledgment signed and acknowledged by the trustee named in the trust deed of a receipt of a copy of the substitution, or an affidavit of service of a copy of it.
(c) From the time the substitution is filed for record, the new trustee succeeds to all the powers, duties, authority, and title of the trustee named in the deed of trust.
(d) When a title insurance company authorized to do business by a certificate of authority granted under AS 21.66 has been purchased by, merged into, or consolidated with, or has transferred all or substantially all of its business assets to, another authorized title insurance company, the surviving or successor company, by operation of law, succeeds to the duties of the predecessor company granted to that predecessor as trustee in any trust deed described in (a) of this section.
(a) When a lender uses a note as evidence of an obligation secured by a mortgage or deed of trust, the note must affirmatively advise the mortgagor or trustor and any other party bound by the note if the mortgagee or beneficiary wants the option to bring suit directly on the note to collect an amount owing under the note without first foreclosing the mortgage or deed of trust. This option must be stated in writing within the note or as a separate document. If a note executed after May 24, 1988 fails to contain the notice specified in this section, the debt secured by the mortgage or deed of trust may be foreclosed under AS 09.45.170 - 09.45.220 or AS 34.20.070 - 34.20.135.
(b) If the mortgagee or beneficiary wishes to collect an amount owing under the note without first foreclosing the mortgage or deed of trust, the following language is sufficient in the note:
The mortgagor or trustor (borrower) is personally obligated and fully liable for the amount due under the note. The mortgagee or beneficiary (lender) has the right to sue on the note and obtain a personal judgment against the mortgagor or trustor for satisfaction of the amount due under the note either before or after a judicial foreclosure of the mortgage or deed of trust under AS 09.45.170 - 09.45.220.
(a) The sale authorized in AS 34.20.070 shall be made under the terms and conditions and in the manner set out in the deed of trust. However, the sale shall be made
(1) at public auction held at the front door of a courthouse of the superior court in the judicial district where the property is located, unless the deed of trust specifically provides that the sale shall be held in a different place; and
(2) after public notice of the time and place of the sale has been given in the manner provided by law for the sale of real property on execution.
(b) The attorney for the trustee may conduct the sale and act in the sale as the auctioneer for the trustee. Sale shall be made to the highest and best bidder. The beneficiary under the trust deed may bid at the trustee's sale. The trustee shall execute and deliver to the purchaser a deed to the property sold.
(c) The deed must recite the date and the book and page of the recording of default, and the mailing or delivery of the copies of the notice of default, the true consideration for the conveyance, the time and place of the publication of notice of sale, and the time, place, and manner of sale, and refer to the deed of trust by reference to the page, volume, and place of record or to the place of record and the serial number assigned to the deed of trust by the recorder.
(d) After the sale an affidavit of mailing the notice of default and an affidavit of publication of the notice of sale shall be recorded in the mortgage records of the recording district where the property is located.
(e) The trustee may postpone sale of all or any portion of the property by delivering to the person conducting the sale a written and signed request for the postponement to a stated date and hour. The person conducting the sale shall publicly announce the postponement to the stated date and hour at the time and place originally fixed for the sale. This procedure shall be followed in any succeeding postponement.
(a) If a deed of trust is executed conveying real property located in the state to a trustee as security for the payment of an indebtedness and the deed provides that in case of default or noncompliance with the terms of the trust, the trustee may sell the property for condition broken, the trustee, in addition to the right of foreclosure and sale, may execute the trust by sale of the property, upon the conditions and in the manner set forth in the deed of trust, without first securing a decree of foreclosure and order of sale from the court, if the trustee has complied with the notice requirements of (b) of this section. If the deed of trust is foreclosed judicially or the note secured by the deed of trust is sued on and a judgment is obtained by the beneficiary, the beneficiary may not exercise the nonjudicial remedies described in this section.
(b) Not less than 30 days after the default and not less than three months before the sale the trustee shall record in the office of the recorder of the recording district in which the trust property is located a notice of default setting out (1) the name of the trustor, (2) the book and page where the trust deed is recorded or the serial number assigned to the trust deed by the recorder, (3) a description of the trust property, including the property's street address if there is a street address for the property, (4) a statement that a breach of the obligation for which the deed of trust is security has occurred, (5) the nature of the breach, (6) the sum owing on the obligation, (7) the election by the trustee to sell the property to satisfy the obligation, and (8) the date, time, and place of the sale. An inaccuracy in the street address may not be used to set aside a sale if the legal description is correct. At any time before the sale, if the default has arisen by failure to make payments required by the trust deed, the default may be cured by payment of the sum in default other than the principal that would not then be due if no default had occurred, plus attorney fees or court costs actually incurred by the trustee due to the default. If, under the same trust deed, notice of default under this subsection has been recorded two or more times previously and the default has been cured under this subsection, the trustee may elect to refuse payment and continue the sale.
(c) Within 10 days after recording the notice of default, the trustee shall mail a copy of the notice by certified mail to the last known address of each of the following persons or their legal representatives: (1) the grantor in the trust deed; (2) the successor in interest to the grantor whose interest appears of record or of whose interest the trustee or the beneficiary has actual notice, or who is in possession of the property; (3) any other person in possession of or occupying the property; (4) any person having a lien or interest subsequent to the interest of the trustee in the trust deed, where the lien or interest appears of record or where the trustee or the beneficiary has actual notice of the lien or interest. The notice may be delivered personally instead of by mail.
(d) If the State of Alaska is a subsequent party, the trustee, in addition to the notice of default, shall give the state a supplemental notice of any state lien existing as of the date of filing the notice of default. This notice must set out, with such particularity as reasonably available information will permit, the nature of the state's lien, including the name and address, if known, of the person whose liability created the lien, the amount shown on the lien document, the department of the state government involved, the recording district, and the book and page on which the lien was recorded or the serial number assigned to the lien by the recorder.
(a) Unless the beneficiary has requested that a title insurance company reconvey a trust deed before the title insurance company mails or delivers the notice under (b) of this section, a title insurance company shall comply with the requirements of this section before reconveying the trust deed.
(b) Not less than 30 days after payment in full of the obligation secured by a trust deed and receipt of satisfactory evidence of payment in full, a title insurance company shall
(1) mail, by certified mail with postage prepaid, return receipt requested, to the beneficiary and the servicer, a notice of intent to reconvey; the notice shall be sent to the beneficiary's address and the servicer's address
(A) stated in the trust deed;
(B) stated in the last recorded assignment of the trust deed, if any;
(C) shown in a request for notice recorded under (g) of this section; and
(D) if any, personally known to the title insurance company; or
(2) hand deliver to the beneficiary and to the servicer a notice of intent to reconvey.
(c) The notice required by (b) of this section must be in substantially the following form and accompanied by a copy of the reconveyance to be recorded:
NOTICE OF INTENT TO RECONVEY
TO: (Beneficiary or servicer for beneficiary)
FROM: (Title insurance company)
DATE: __________
Notice is hereby given to you as follows:
(1) This notice concerns the trust deed described as follows:
Trustor: ________________________
Beneficiary: ________________________
Recording information for the trust deed:
Serial number: __________
or
Book number: __________
Page number: __________
Recording information for current assignment of trust deed:
Serial number: __________
or
Book number: __________
Page number: __________
(2) The undersigned title insurance company claims to have fully
paid or received satisfactory evidence of the payment in full of the
obligation secured by the trust deed described above.
(3) Unless, within 90 days following the date stated above, the
undersigned has received, by certified mail, return receipt requested,
directed to the address noted below, a notice stating that you have not
received payment in full of all obligations secured by the trust deed
or that you otherwise object to reconveyance of the trust deed, the
undersigned will fully release and reconvey the trust deed under AS
34.20.115.
(4) A copy of the reconveyance or release of the trust deed is
enclosed with this notice.
(Title insurance company)
(Address)
(Telephone number)
(d) After at least 90 days have elapsed after the mailing or delivery
of the notice of intent to reconvey under (b) of this section, if a
title insurance company has not received an objection to the
reconveyance, the title insurance company may execute and record a
reconveyance of the trust deed.
(e) The reconveyance authorized by (d) of this section must be
acknowledged under AS 09.63 and be in substantially the following form:
RECONVEYANCE OF TRUST DEED
________________________, a title insurance company authorized to
transact business in Alaska, does, by this document, reconvey, without
warranty, to the person or persons legally entitled to the trust
property, the following trust property covered by a trust deed naming
________________________ as trustor and ________________________ as
beneficiary, which was recorded on _________
at serial number _________ or at book _________ and page _________:
The following described property located in the
________________________ Judicial District, State of Alaska:
(Property description)
The undersigned title insurance company certifies that
(1) the undersigned title insurance company has fully paid or
received satisfactory evidence of the payment in full of the obligation
secured by the trust deed;
(2) not less than 30 days following the payment in full of the trust
deed, the undersigned hand delivered or mailed by certified mail,
return receipt requested, to the record beneficiary under the trust
deed and the servicer for the record beneficiary, at the beneficiary's
and servicer's record addresses, and to any address personally known to
this title insurance company, a notice of intent to reconvey as
required by AS 34.20.115 ; and
(3) at least 90 days have elapsed after the mailing or delivery of
the notice of intent to reconvey, and the undersigned title insurance
company has not received an objection to the reconveyance.
Dated ___________________
_________________________ (Title insurance company)
(Acknowledgment)
(f) A reconveyance of a trust deed, when executed and acknowledged in substantially the form prescribed in (e) of this section, may be recorded and, when recorded, constitutes a reconveyance of the trust deed identified in the reconveyance, regardless of any deficiency in the reconveyance procedure that is not disclosed in the recorded reconveyance, except for forgery of the title insurance company's signature. The reconveyance of a trust deed under this section does not discharge a personal obligation that was secured by the trust deed at the time of its reconveyance.
(g) A person who wants to receive a copy of a notice given under (b) of this section after the deed of trust is recorded and before the reconveyance is recorded under (d) of this section may record a request for a copy of the notice in the office of the recorder in the judicial district in which a part of the real property is located. The request must be acknowledged, must state the name and address of the person requesting the copy of the notice, and must identify the deed of trust by stating the names of the parties to the deed of trust, the date of recordation, and the serial number or book and page numbers where the deed of trust is recorded.
(h) If, at any point during the procedure required by this section, the beneficiary requests the title insurance company to reconvey the trust deed, the title insurance company is not required to proceed with the rest of the procedure required by this section and may execute and record a reconveyance of the trust deed.
(i) Except as provided in (a) and (h) of this section, if a title insurance company reconveys a trust deed without having satisfactory evidence of payment in full required under (b) of this section or without providing the prior notice to the beneficiary and the servicer as required under this section, the title insurance company is liable to the beneficiary and to the heirs, successors in interest, representatives, and assigns of the beneficiary for all damages occasioned by the neglect or the wilful act, and the title insurance company is liable to the state for a penalty of $300.
(j) In this section,
(1) 'beneficiary' means both the record owner of the beneficiary's interest under a trust deed and a successor in interest;
(2) 'satisfactory evidence of payment in full,' with regard to an obligation secured by a trust deed or an encumbrance on the property covered by the trust deed, means a payoff letter, or, along with reasonable documentary evidence that the check was intended to effect full payment,
(A) the original cancelled check; or
(B) a copy, including a voucher copy, of a check, payable to the beneficiary or a servicer;
(3) 'servicer' means a person who handles, for a beneficiary of a trust deed, the receipt of the beneficiary's payments under the trust deed;
(4) 'title insurance company' means a title insurance company or a title insurance limited producer; in this paragraph, 'title insurance company' and 'title insurance limited producer' have the meanings given in AS 21.66.480 .
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