U.S. Bank National Ass'n v. Gordon
289 Ga. 12
| Ga. | 2011Background
- Georgia district court certified whether the 1995 amendment to OCGA § 44-14-33 alters notice for security deeds lacking attestation; Hagler refinanced and granted serial security deeds in 2005; first deed lacked official/unofficial attestation and was recorded; bankruptcy trustee pursued avoidance under § 544(a)(3); bankruptcy court held facially defective attestation cannot provide constructive notice under the amendment; Georgia Supreme Court granted review to resolve the issue.
- The security deeds were recorded in Fulton County in 2005; the first deed lacked attestations despite recording; the question is whether the 1995 amendment recognizes constructive notice for unattested deeds with facial defects.
- The General Assembly amended § 44-14-33 to address constructive notice upon recordation; the court must harmonize the amendment with existing recording statutes and case law.
- Leeds Bldg. Prod. v. Sears Mtg. Corp. and Higdon v. Gates provide prior framework on facial validity and notice; Thomas v. Hudson and Glover v. Cox address recording admissibility based on attestation; Merchants & Mechanics’ Bank v. Beard addresses historical notions of notice and recording; the issue is whether the 1995 amendment applies to security deeds and how “duly filed, recorded, and indexed” is satisfied.
- The decision concludes that the 1995 amendment applies to security deeds and that “duly filed, recorded, and indexed” requires proper attestation as to form; unattested deeds do not provide constructive notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 1995 amendment apply to security deeds? | U.S. Bank: amendment creates notice for unattested deeds. | Gordon: amendment recognizes only latently defective attestations. | Amendment applies to security deeds. |
| What does “duly filed, recorded, and indexed” mean under the amendment? | Recordation alone suffices regardless of attestation. | Need proper attestation and witness; ill-formed deeds lack notice. | Duly requires proper attestation; unattested deeds do not provide notice. |
| How should the amendment harmonize with existing recording statutes? | Amendment alters longstanding notice rules for security deeds. | Statutes must be read in pari materia with existing attestation requirements. | Amendment harmonizes with prior statutes; attestation remains required. |
Key Cases Cited
- Leeds Bldg. Prod. v. Sears Mtg. Corp., 267 Ga. 300 (1996) (addressed facial attestation and constructive notice post-Leeds)
- Higdon v. Gates, 238 Ga. 105 (1976) (facial sufficiency of attestation governs recording eligibility)
- Thomas v. Hudson, 190 Ga. 622 (1940) (face-of-deed attestation governs admissibility for recording)
- Glover v. Cox, 137 Ga. 684 (1912) (recording if properly attested on face; improper attestation precludes recording)
- Merchants & Mechanics’ Bank v. Beard, 162 Ga. 446 (1926) (equates security deeds with mortgages; notice rules apply to deeds to secure debt)