452 B.R. 591
6th Cir. BAP2011Background
- Debtors own real property at 115 Juniper Drive, Waynesburg, Kentucky.
- Fifth Third loaned $85,000, evidenced by a note signed only by Boyd W. Rowe as Borrower, with a Mortgage on the Property.
- Mortgage defines Borrower as Boyd W. Rowe, a married man, and includes a Second Home Rider amending the Mortgage.
- Linda Lou Rowe signed the Mortgage and the Second Home Rider, though she is not named as a Borrower in the body of the Mortgage.
- Paragraph 13 of the Mortgage states co-signers are bound if they co-sign the Security Instrument but did not execute the Note.
- Bankruptcy Trustee sought to avoid the Mortgage under § 544 as to Linda Lou Rowe’s interest; bankruptcy court granted Trustee; Fifth Third appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Linda Rowe is sufficiently identified as a mortgagor under Kentucky law. | Trustee: not named/identified in body; rider cannot identify mortgagor. | Fifth Third: rider and entire instrument identify Linda Rowe as Borrower; incorporation by reference valid. | Yes; Linda Rowe sufficiently identified; mortgage enforceable against her. |
Key Cases Cited
- Goodrum's Guardian v. Kelsey, 244 Ky. 349, 50 S.W.2d 932 (Ky. 1932) (mortgage validity requires identification of the mortgagor)
- Deins' Adm'r v. Gibbs, 257 Ky. 469, 78 S.W.2d 346 (Ky. 1935) (signature without naming does not necessarily establish liability)
- Shaver v. Ellis, 226 Ky. 806, 11 S.W.2d 949 (Ky. 1928) (identity may be inferred from entire instrument when described)
- Kelsey, 50 S.W.2d 934 (Ky. 1932) (grantor must be named or identified; identity may be incorporated from surrounding terms)
- Whitaker v. Langdon, 302 Ky. 666, 195 S.W.2d 285 (Ky. 1946) (body of conveyance must name or identify grantors)
- Consol. Aluminum Corp. v. Krieger, 710 S.W.2d 869 (Ky. Ct. App. 1986) (terms after signature line may still be part of instrument if incorporated)