517 B.R. 1
D. Mass.2014Background
- Debtor and spouse (the Pereiras) executed a mortgage in December 2005; their names were omitted from the acknowledgment jurat on the recorded mortgage.
- Attorney Raymond J. Quintín witnessed the signatures and in January 2012 recorded an affidavit (pursuant to Mass. Gen. Laws ch. 183, § 5B) stating he witnessed the signatures and that the signers acknowledged signing voluntarily.
- Six months after the affidavit (July 2012) the debtor filed Chapter 7; the trustee brought an adversary proceeding under 11 U.S.C. § 544(a) to avoid Bank of America’s mortgage as unrecorded for constructive-notice purposes.
- Bankruptcy Court granted summary judgment for the trustee, allowing avoidance of the mortgage; Bank of America appealed.
- The core dispute: whether the post‑execution, pre‑bankruptcy § 5B attorney affidavit cured the material defect in the original acknowledgment so the mortgage provided constructive notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a later-recorded § 5B affidavit cures a materially defective acknowledgment so the mortgage gives constructive notice | Trustee: defectively acknowledged mortgage is not legally recordable and cannot give constructive notice; curing is governed only by ch. 184 § 24 (10-year repose or judicial proceeding) | Bank: Quintín § 5B affidavit clarified and effectively supplied the missing acknowledgment before bankruptcy, so the mortgage provided constructive notice | Court: The § 5B affidavit cured the acknowledgment defect and thus the mortgage provided constructive notice; Bankruptcy Court reversed |
Key Cases Cited
- Pidge v. Tyler, 4 Mass. 541 (1808) (discusses purpose of acknowledgments to protect registry integrity)
- Smith v. Porter, 76 Mass. (10 Gray) 66 (1857) (form/time of acknowledgment not strictly fatal to title)
- Dresel v. Jordan, 104 Mass. 407 (1870) (date of acknowledgment may differ from date of execution without invalidating conveyance)
- McOuatt v. McOuatt, 320 Mass. 410 (1946) (no particular words required in an acknowledgment; substance controls)
- Graves v. Graves, 72 Mass. (6 Gray) 391 (1856) (defective acknowledgments and recording validity discussed)