§20.11 - Transfer of the Debt and Security by the Mortgagee

• Jurisdiction: Washington

§20.11 TRANSFER OF THE DEBT AND SECURITY BY THE MORTGAGEE

The original mortgagee of real property has two interrelated interests: (i) the personal obligation that is the basis of the lien; and (ii) the lien or mortgage that secures the obligation. The obligation is the principal matter and the mortgage is the security for the performance of the obligation and in a subsidiary capacity. George E. Osborne, HANDBOOK OF THE LAW OF MORTGAGES Ch. 8, §§223—26 (2d ed. 1970). Therefore, generally a transfer of the note or obligation carries with it a transfer of the mortgage between the parties. Id. at §224. Although the mortgage is not a negotiable instrument, it takes on the negotiable character of the obligation. 59 C.J.S. Mortgages §336(b) (1998); see, e.g., Lewis v. Kujawa, 158 Wash. 607, 291 P. 1105 (1930).

(1) Transfer of the debt or obligation

The debt or the obligation normally is transferred by an endorsement of the note or an assignment. Such a transfer of the debt also transfers the security (mortgage) to the assignee. 59 C.J.S. Mortgages §347 (1998).

(2) Transfer of the mortgage

The unity of ownership of the mortgage and the debt cannot be separated; it is ineffective to transfer the mortgage separately from the debt it secures. The party seeking to enforce the mortgage must also be the party who is entitled to receive the payment of the obligation secured by the mortgage. Bain v. Metro. Mortg. Grp., 175 Wn.2d 83, 285 P.3d 34 (2012); 59 C.J.S. Mortgages §350 (1998). The mortgage is transferred by assignment. RCW 61.16.010 provides as follows:

Assignments, how madeSatisfaction by assignee. Any person to whom any real estate or chattel mortgage is given, or the assignee of any such...