CHAPTER 8.01. Assignment of Mortgages

• Jurisdiction: United States

8.01. Assignment of Mortgages

[1] General

An assignment attested by one creditable witness is valid and effective to convey all of the right and interest of the assignor in a mortgage.¹ It is unclear whether a "creditable" witness for purposes of attesting the assignment of a mortgage is the same as a "credible" witness for purposes of attesting the assignment of a note under seal.² This same section of the Delaware Code requires the attestation by the creditable witness for any sealed instrument.³ Also, this provision appears to apply to any mortgage, not just to a mortgage signed under seal (the wording is "a mortgage or any sealed instrument" and not "a mortgage or any other sealed instrument"). Moreover, the Delaware Superior Court has held that even if the mortgage is under seal, the assignment itself need not be under seal.⁴ In Mortgage Electronic Systems, Inc. v. Haase and Flanagan, the court rejected the defendant's argument that an assignment to the plaintiff, MERS, was defective because it was not under seal. The court referred to the statutory requirements for an assignment of a mortgage⁵ and held that Delaware law does not require that an assignment of a mortgage be made under seal.⁶

Nor does the presence of two witnesses, where only one witness is required, invalidate the assignment.⁷ The assignment should be properly acknowledged and recorded in the same recorder of deeds office as the mortgage being assigned in order to make the assignee the holder of record of the mortgage.⁸

[2] Assignment of Note⁹

Although an assignment of the secured obligation effects an assignment of the mortgage, an assignment of the mortgage does not act to assign the secured obligation to the assignee.¹⁰ While Delaware law imposes no special requirements for the assignment of a promissory note, it does for notes that are signed under seal. This would mean bonds or specialties, which are each understood to be a promise to pay made under seal.¹¹ In those cases, the assignment must itself be under seal and executed in the presence of a credible witness.¹² Delaware cases have made clear that the witness must be independent from the execution by the assignor. In other words, if the attestation by the secretary of a corporate assignor is a necessary component of the assignor's execution of the assignment, the secretary's attestation would not be sufficient to satisfy the requirement for a witness.¹³ In FinanceAmerica Private Brands, Inc. v. Harvey Hall, Inc., an assistant...