United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
James B. Nutter & Company (“Nutter”) appeals
a final judgment of the Bankruptcy Court denying its motion
for summary judgment and entering summary judgment in favor
of Appellee Mark G. DeGiacomo, the trustee for the bankruptcy
estate of Fanni Reznikov. For the reasons set forth below,
the Court affirms the judgment of the bankruptcy court.
Reznikov resided at 143 Gould Street, Needham, Massachusetts,
in a condominium unit that she owned. In July 2008, Reznikov
obtained a reverse mortgage on the property. She executed an
adjustable rate note on July 16, 2008 in favor of First Call
as the lender. The note was secured by a first position home
equity conversion mortgage on the 143 Gould Street property.
The mortgage was filed with the Norfolk County Land Court on
July 22, 2008. The notary acknowledgement on page nine of the
16 day of July, 2008 before me personally appeared
to me known and known to me to be the individual(s) described
in and who executed the foregoing instrument, and duly
acknowledged to me that he/she/they executed the same. [. .
Call subsequently assigned the mortgage to Nutter, and the
assignment was recorded at the Norfolk County Land Court on
January 13, 2015.
filed a Chapter 7 bankruptcy petition on February 17, 2014.
Schedule A to Reznikov's bankruptcy petition lists the
143 Gould Street property with a fair market value of $420,
000. On Schedule C to the bankruptcy petition, Reznikov
asserted a homestead exemption of her interest in the
property in the amount of $500, 000, pursuant to her
declaration of homestead, which was filed pre-petition but
after execution of the mortgage. On Schedule D to the
bankruptcy petition, Reznikov listed Nutter as the holder of
a claim in the amount of $301, 838.15 secured by the
January 5, 2015, the trustee filed a complaint to avoid the
mortgage under 11 U.S.C. § 544(a)(3), asserting that the
notary's certificate of acknowledgment was defective. The
trustee sought to preserve the value of the mortgage for the
benefit of the estate pursuant to 11 U.S.C. § 551. In
September 2015, the trustee moved for summary judgment, and
Nutter filed a cross-motion for summary judgment. The
bankruptcy court entered summary judgment in favor of the
trustee and denied Nutter's cross-motion on March 29,
Court has jurisdiction to hear appeals from “final
judgments, orders, and decrees” of the bankruptcy
court. 28 U.S.C. § 158. “An order granting summary
judgment is a final order for purposes of appeal.”
In re Dunn, 324 B.R. 175, 178 (D. Mass. 2005)
(quoting Wicheff v. Baumgart (In re Wicheff), 215
B.R. 839, 840 (6th Cir. BAP 1998)). The Court “reviews
de novo the bankruptcy court's rulings of
law.” In re Spookyworld, Inc., 318 B.R. 1, 2
(D. Mass.), aff'd, 346 F.3d 1 (1st Cir. 2003).
sole question presented to the bankruptcy court, and to this
Court on appeal, is whether the trustee may avoid, pursuant
to the strong arm powers granted to him by 11 U.S.C. §
544, a mortgage containing a certificate of acknowledgment
that does not contain explicit language affirming that
Reznikov's execution of the mortgage was voluntary.
Neither the Court nor the parties are aware of a case that
addresses this precise question. Nutter contends that the
bankruptcy court erred in deciding that the trustee may avoid
the mortgage. The ...