United States District Court, D. Massachusetts
For Bank of America, N.A., Appellant: Amy N. Azza, LEAD ATTORNEY, Orlans Moran PLCC, Waltham, MA; Mark B. Johnson, Michael A. Klass, LEAD ATTORNEYS, Johnson & Borenstein, LLC, Andover, MA.
For Debora A. Casey, Appellee: Alex Michael Rodolakis, LEAD ATTORNEY, Fletcher Tilton, PC, Hyannis, MA; John G. Hofmann, LEAD ATTORNEY, Gilman, McLaughlin & Hanrahan, LLP, Boston, MA; Patrick C. Tinsley, Fletcher Tilton PC, Worcester, MA.
OPINION AND ORDER
George A. O'Toole, Jr., United States District Judge.
This is an appeal from a ruling of a United States Bankruptcy Judge for the District of Massachusetts. In an adversary proceeding, the bankruptcy court granted summary judgment in favor of the trustee of the bankrupt estate, allowing the trustee to avoid Bank of America's mortgage. The issue presented is whether an attorney's affidavit, later recorded with the registry of deeds, can cure a material defect in the acknowledgment to a mortgage that existed at the time the mortgage itself was recorded. The court ruled that under Massachusetts law the defect in the acknowledgement was not cured by the subsequently recorded affidavit.
The debtor commenced a Chapter 7 case in July 2012. In September 2012, the trustee filed an adversary proceeding against Bank of America seeking to avoid the bank's mortgage on the debtor's property under the strong-arm provision of the Bankruptcy Code, 11 U.S.C. § 544(a). The parties filed cross-motions for summary judgment. The Bankruptcy Court granted summary judgment in favor of the trustee. Bank of America timely filed its notice of appeal.
The parties are in agreement as to the underlying facts. In 1999 the debtor and his wife (" the Pereiras" ) purchased a property in New Bedford, Massachusetts. In December 2005, the Pereiras granted Bank of America a mortgage on the property. On the mortgage the Pereiras were identified as " Borrowers" and they initialed the bottom of each unsigned page and executed the document, which was witnessed by Attorney Raymond J. Quintin. The acknowledgment jurat at the end of the mortgage document, however, omitted the names of the Pereiras.
In an attempt to rectify the omission, Attorney Quintin recorded an affidavit with the Registry in January 2012, six months prior to the commencement of the bankruptcy case. In the affidavit, Attorney Quintin certified that he witnessed the Pereiras' signatures on the mortgage, that they provided him with satisfactory evidence of their identity, and that they acknowledged that they had signed the mortgage voluntarily.
II. Standard of Review
Rule 8013 of the Federal Rules of Bankruptcy Procedure provides that " [o]n an appeal the district court . . . may affirm, modify, or reverse a bankruptcy judge's judgment, order or decree or remand with instructions for further proceedings." The Bankruptcy Court's conclusions of law, including statutory construction, are subject to de novo review. Flynn v. Bankowski (In re Flynn), 402 B.R. 437, 441 (B.A.P. 1st Cir. 2009) (per curiam). This appeal does not seek review of any factual findings.
">In Mortg. Elec. Registration Sys., Inc. v. Agin, 2009 WL 3834002 (D. Mass. Nov. 17, 2009), this Court considered a related question. In that case, the acknowledgment in the mortgage suffered from the same defect as in this case; the debtor's name was omitted. In light of the defect, the trustee ...