US BANK NAT. ASS'N v. Gordon
709 S.E.2d 258
| Ga. | 2011Background
- District court certified a question to Georgia about the 1995 Amendment to OCGA § 44-14-33.
- Hagler refinanced and conveyed first and second security deeds; deeds recorded Nov. 2005, but the first was not attested.
- Gordon, Chapter 7 trustee, sought to avoid the deed via 11 U.S.C. § 544(a)(3).
- Bank attempted to rely on the 1995 Amendment to argue unattested deeds can still provide notice.
- Georgia Supreme Court held the 1995 Amendment does not create constructive notice for unattested deeds; the amendment applies but requires proper attestation for notice.
- Certified question answered negatively; the attestation requirement remains controlling in recording and notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1995 Amendment applies to security deeds. | Gordon argued amendment does not apply to security deeds. | U.S. Bank argued amendment applies to security deeds. | Amendment applies to security deeds. |
| What constitutes “duly filed, recorded, and indexed” for notice. | Bank argues unattested deeds can still be notice. | Court should read “duly” to require proper attestation. | “Duly” includes proper attestation; unattested deeds do not provide notice. |
| Impact of facial vs latent defects in attestation on notice. | Latent defects may still provide notice under amendment. | Facially defective attestation precludes notice; patently defective does not. | Latently defective attestation can provide notice; patently defective cannot. |
Key Cases Cited
- Leeds Building Products v. Sears Mortgage Corp., 267 Ga. 300 (Ga. 1996) (addressed facial validity for notice; held compliant deeds may be recorded and notice given)
- Higdon v. Gates, 238 Ga. 105 (Ga. 1976) (facially improper deeds are not entitled to record and do not give notice)
- Thomas v. Hudson, 190 Ga. 622 (Ga. 1940) (deeds on face of record must be properly attested to be admitted)
- Glover v. Cox, 137 Ga. 684 (Ga. 1912) (proper attestation required for recording; failures preclude notice)
- Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 (Ga. 1926) (equitable mortgages; recording standards for security instruments)