Wells Fargo Bank, N.A. v. Gordon
292 Ga. 474
Ga.2013Background
- In 2006 Denise Codrington executed a security deed with Wells Fargo that was recorded in Fulton County on October 13, 2006.
- The security deed states that if riders are recorded with the deed, their covenants are incorporated as if part of the security instrument, and identifies the ARM Rider.
- The last page of the deed shows signatures of the debtor, co-debtor, and a notary, but the line for an unofficial witness is blank.
- Exhibit A (property description) and several riders, including the waiver, were recorded with the deed; the waiver states its provisions are incorporated into the security deed.
- The waiver was signed by the debtor, co-debtor, an unofficial witness, and a notary, and this case centers on whether the lack of an official witness on the deed invalidates the recording and notice.
- In 2008 the debtor filed for Chapter 7 bankruptcy; the Trustee sought to avoid Wells Fargo’s interest under 11 U.S.C. § 544, arguing the deed was not duly recorded due to the missing unofficial witness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a security deed lacking an unofficial witness is in recordable form under OCGA 44-14-33 | Gordon argues the deed is not duly recorded without the unofficial witness | Wells Fargo argues the waiver’s attestation suffices and the deed is recordable | Negative; deed not in recordable form; waiver cannot cure |
| Whether the fully executed waiver creates inquiry notice for a subsequent bona fide purchaser | Gordon contends waiver places buyer on inquiry notice | Wells Fargo contends waiver does not sufficiently identify the property to trigger inquiry | Negative; waiver alone does not place purchaser on inquiry notice |
Key Cases Cited
- U. S. Bank N.A. v. Gordon, 289 Ga. 12 (2011) (record form requires proper attestation and additional witness for recordability; defective deed fails notice)
- Higdon v. Gates, 238 Ga. 105 (1976) (patently defective deed does not provide constructive notice)
- In re Fleeman, 81 BR 160 (M.D. Ga. 1987) (unofficial witness attestation cannot substitute for deed attestation)
- In re Yearwood, 318 BR 227 (M.D. Ga. 2004) (defective security deed generally fails to provide notice)
- Deljoo v. SunTrust Mortgage, 284 Ga. 438 (2008) (addressed inquiry notice standards for land conveyancing)