An unrecorded deed of trust is still a lien on your real estate. Thus, it needs to be released.
IMHO, a lien doesn't exist until it's on record at the courthouse. Is there case law to support the unrecorded lien position? If this is true, anyone could claim a lien on anyone else's house, just by producing a DOT that never made it to the courthouse.
IHREDRIDER:
Yikes. So the old DOT is still on record, meaning it might not have been paid off. Contact the holder of the old DOT - the one that's still on record - and find out if they ever received their payoff from the new lender. If they DID receive payoff, inform them that they are in violation of federal law regarding lien release. They had 45 days to remove the lien beginning the day they received the payoff. Tell them to remove it or you will sue for its release.
Wait, lemme get this straight - The lender no longer has the DOT
or the errors and omissions paperwork that would compel you to sign a new DOT? This is the point where you laugh at them during the conversation and start asking "Uhhh, what deed of trust are you talking about, sir? ...Nope. No recollection of that one - you
sure it was me who signed it?"
Seriously though, you're eventually going to have to provide them with a signature for that DOT. That doesn't mean you can't put the screws to them a little before you do. My first call would be to contact that new lender and ask them just how in the hell they expect to instill any kind of consumer confidence in you when they can't keep a single document safe long enough to get it to the local courthouse for recording? Offer to give them directions to the courthouse when they finally find these lost documents. Reinforce that they had better find them, cuz you only sign documents ONCE. When they do find it, maybe you could offer to ride along with them to make sure no one strays away from his task at hand like a five year old on a field trip - AGAIN.
I'd call the title company to rattle their cage a little too. Let them know in no uncertain terms that they had better find that DOT, cuz you ain't gonna sign another one without a
court order,(their face will do something like this:
when you mention the court order...) recorded releases for the one that's already on record AND the one that the moron at their company already lost. When the time comes, insist they come to you and on your time. After the DOT is signed, go with their representative to the courthouse, and make certain the nimrod actually gets there this time. Once it's recorded, go on your merry way like it never even happened.
If you
REALLY wanted to have some fun with them, tell them you're considering refinancing at the end of the month, and that they'd better hurry up and fund that lost DOT.