Bank of America, N.A. v. Casey, 474 Mass. 556

Background

In 2005 Alvaro and Lisa Pereira granted a $240,000 mortgage to Bank of America; the mortgage was recorded but the notary acknowledgment omitted the mortgagors’ names.
The notary, Raymond J. Quintin, later (2012) recorded an attorney’s affidavit under G. L. c. 183, § 5B stating he witnessed the Pereiras sign, confirming their identities, and explaining the omission was inadvertent; the affidavit referenced the book and page where the mortgage was recorded.
In 2012 debtor Alvaro Pereira filed Chapter 7 bankruptcy; the Chapter 7 trustee (Casey) sued to avoid the mortgage as unperfected due to the defective acknowledgment.
The Bankruptcy Court granted summary judgment for the trustee; the District Court reversed, holding the § 5B affidavit cured the defect.
The First Circuit certified two questions to the Massachusetts Supreme Judicial Court: (1) whether a § 5B affidavit can cure a material omission (mortgagors’ names) in an acknowledgment; and (2) whether such an affidavit (alone or with the mortgage) gives constructive notice to a bona fide purchaser.
The SJC held: in certain circumstances a § 5B affidavit can cure the omitted-name defect and, when it does, the affidavit together with the mortgage supplies constructive notice to a bona fide purchaser (including a trustee in bankruptcy).

Issues

Issue	Plaintiff's Argument (Bank)	Defendant's Argument (Casey, trustee)	Held
1) Can a § 5B attorney affidavit cure a recorded mortgage’s acknowledgment that omitted the mortgagors’ names?	§5B affidavit clarifies chain of title and can supply omitted facts to cure defect.	Omission is a material defect that §184, §24 alone governs; §5B cannot cure; mortgage was not validly recorded.	Yes — in appropriate circumstances §5B affidavit may cure the omission by clarifying facts and connecting to the recorded mortgage.
2) If a §5B affidavit cures the defect, does the affidavit (alone or with mortgage) provide constructive notice to a bona fide purchaser?	Combined record (mortgage + curing affidavit) should provide constructive notice.	If mortgage was illegally recorded originally, nothing on record can be clarified; no constructive notice.	Yes — where the §5B affidavit validly cures the defect and references the recorded mortgage, the affidavit plus mortgage provides constructive notice; if affidavit does not cure, no constructive notice.
3) Does the functus officio doctrine bar a notary from effectively correcting an acknowledgment by later affidavit?	Notary/affiant may correct via §5B affidavit.	Functus officio prevents unilateral re-acknowledgment without mortgagors’ assent.	No — functus officio does not prevent cure under §5B; §5B contemplates post-recording clarifications.
4) Is §24 the exclusive remedy for defective acknowledgments?	§24 is not exclusive; §5B is another statutory mechanism to clarify title.	§24 provides the sole statutory cure; absent §24 relief mortgage remains defective.	§24 is not exclusive; §5B is a permissible means to correct certain omissions consistent with its text.

Key Cases Cited

McOuatt v. McOuatt, 320 Mass. 410 (Mass. 1946) (certificate of acknowledgment furnishes formal proof for recording; a defective acknowledgment can defeat constructive notice)
Tramontozzi v. D'Amicis, 344 Mass. 514 (Mass. 1962) (mortgages must be recorded to provide constructive notice)
Eaton v. Federal National Mortgage Association, 462 Mass. 569 (Mass. 2012) (a mortgage operates in many respects like a deed; recordation rules apply)
Allen v. Allen, 86 Mass. App. Ct. 295 (Mass. App. Ct. 2014) (facially proper acknowledgment may be invalidated by evidence showing the acknowledgment never actually occurred)
Pinti v. Emigrant Mortgage Co., 472 Mass. 226 (Mass. 2015) (approving use of §5B affidavits to clarify facts in the chain of title)
Nett v. Bellucci, 437 Mass. 630 (Mass. 2002) (describing the statute-of-repose purpose of G. L. c. 184, § 24)
Opinion of the Justices, 360 Mass. 894 (Mass. 1971) (describing §24 as curative legislation creating a saving period for challenges)