Wells Fargo Bank, N.A. v. Gordon (In Re Codrington)
691 F.3d 1336
| 11th Cir. | 2012Background
- This case originates in the Georgia transfer of property security context and concerns a deed to secure debt recorded without an unofficial witness on the signature page.
- The Security Deed, dated September 21, 2006, covers property in College Park, Georgia, and was recorded October 13, 2006.
- The deed contains eight pages and a Rider (ARM) but lacks an unofficial witness on the signature page; a Waiver of Borrower’s Rights Rider later includes an unofficial witness.
- The Waiver Rider, Closing Attorney’s Affidavit, and Foreclosure Closing Disclosure were filed with the Security Deed, and the Rider’s provisions were incorporated into the Security Deed.
- The Chapter 7 Trustee seeks to avoid Wells Fargo’s interest under 11 U.S.C. § 544(a)(3) by arguing the deed was not duly recorded under Georgia law, affecting constructive notice.
- Georgia law, specifically O.C.G.A. § 44-14-33, governs whether a deed lacking the required witness attestations provides constructive notice to a hypothetical bona fide purchaser at the time of recording.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a security deed that lacks an unofficial witness signature is “duly filed, recorded, and indexed.” | Codrington (trustee) | Wells Fargo | No; a deed without the official/unofficial attestation cannot be duly recorded. |
| If not, does a properly attested Rider incorporated into the deed create notice? | Codrington (trustee) | Wells Fargo | The Rider’s attestation cannot cure the Security Deed’s defective attestation for notice. |
| Does the properly attested Rider create inquiry notice for a hypothetical purchaser? | Codrington (trustee) | Wells Fargo | No; Rider alone does not place ordinary prudence on notice regarding the specific deed. |
Key Cases Cited
- U.S. Bank Nat’l Ass’n v. Gordon, 709 S.E.2d 258 (Ga. 2011) (holding that a deed must be duly filed, recorded, and indexed to provide notice when properly attested)
- Gordon v. Terrace Mortgage Co. (In re Kim), 571 F.3d 1342 (11th Cir. 2009) (affidavit curing defects can affect attestation analysis under Georgia law)
- Bowman v. Walnut Mountain Property Owners Ass’n, Inc., 553 S.E.2d 389 (Ga. 2001) (incorporation by reference of other documents where relevant to attestation)
- Cocke v. Bank of Dawson, 180 S.E.2d 711 (Ga. 1935) (attestation considerations in varied documentary contexts)
- Crooke v. Property Management Services, Inc., 110 S.E.2d 677 (Ga. 1959) (issue of incorporation and attestation scope)
- Horton v. Murden, 43 S.E. 786 (Ga. 1903) (non-end-of-document locations for signature considerations)
- Swire Pac. Holdings v. Zurich Ins. Co., 284 F.3d 1228 (11th Cir. 2002) (non-restrictive guidance on certified questions and record transmission)