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(1) the obligation secured by the trust deed or mortgage:
(a) has not been fully paid; or
(b) has not been partially paid in an amount agreed to by the beneficiary, mortgagee, or servicer as sufficient to release the mortgage or reconvey the trust deed; and
(2)
(a) the title insurer or title agent failed to comply with the provisions of Sections 57-1-40 and 57-1-41; or
(b) the title insurer or title agent acted with gross negligence or in bad faith in reconveying the trust deed.