26 A.3d 856
Md.2011Background
- Bankruptcy Trustees challenge four deeds of trust recorded in Maryland lacking or having defective affidavits of consideration or acknowledgments.
- Bankruptcy Court certified four Maryland Real Property Article § 4-109 questions to determine if curative § 4-109 can validate these instruments.
- Trustees argue missing or defective affidavits void the deeds as to subsequent bonafide purchasers.
- Creditors argue § 4-109 cures such defects absent timely judicial challenges under six-month window.
- Court finds § 4-109 unambiguous and curative for missing/improper affidavits/acknowledgments if no timely challenge is filed.
- Court acknowledges legislative history supports plain-language reading and distinguishes substantial versus formal defects to some extent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4-109 cures a missing affidavit of consideration. | Trustees: curing absent.6-month challenge not raised. | Creditors: § 4-109 cures these defects. | Yes; § 4-109 cures missing affidavits if no challenge. |
| Whether § 4-109 cures an affidavit with a borrower named as affiant erroneously. | Trustees: defect substantive; not cured. | Creditors: cured as improper acknowledgment. | Yes; § 4-109(c)(4) cures improper or mistaken affidavits. |
| Whether § 4-109 cures an imprint form affidavit with no information on attestation. | Trustees: defect substantive; not cured. | Creditors: cured as lack of proper attestation. | Yes; § 4-109(c)(4) cures incomplete/form affidavits. |
| Whether § 4-109 cures an affidavit with a form lacking affiant identification. | Trustees: defect substantive; not cured. | Creditors: cured if no timely challenge. | Yes; § 4-109(c)(4) cures missing affiant identification. |
Key Cases Cited
- Ameriquest Mortg. Co. v. Paramount Mortg. Servs., 415 Md. 656 (Md. 2010) (false but true-on-recorded-date affidavit not a per se noncurable defect; substantial compliance.)
- Layton v. Petrick, 277 Md. 421 (Md. 1976) (curative act scope excludes pre-1973 challenges; focuses on defective acknowledgments.)
- Pagenhardt v. Walsh, 250 Md. 333 (Md. 1968) (affidavit deficiencies generally nullities; substantial content may suffice.)
- Berean Bible Chapel, Inc. v. Ponzillo, 28 Md.App. 596 (Md. Ct. Spec. App. 1975) (affidavit/acknowledgment protections context; public-record integrity.)
- Kortobi v. Kass, 410 Md. 168 (Md. 2009) (plain-language rule governs statutory interpretation.)