MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT
I. Introduction
In this adversary proceeding, William B. Logan, Jr., the Chapter 7 trustee (“Trustee”) for the bankruptcy estate of Mikki Sue Gray (“Debtor” or “Ms. Gray”), seeks to avoid a first mortgage now held by WMC Mortgage, LLC (“WMC”) on the Debtor’s real property. 1 The Trustee requests this relief under 11 U.S.C. § 544(a) for two reasons. First, the notary public responsible for certifying the acknowledgment of Ms. Gray’s signature originally omitted her name from the certificate of acknowledgment. Second, although the notary public later corrected his certificate by adding Ms. Gray’s name, he did so after the mortgage had already been recorded and caused the mortgage to be re-recorded without having Ms. Gray re-acknowledge her signature.
WMC concedes that the original mortgage is avoidable due to the omission of Ms. Gray’s name from the notary public’s *272 certificate of acknowledgment. The Court concludes that the rerecorded mortgage also is avoidable because the notary public lacked the authority to alter the record by re-recording the mortgage without re-acknowledgment by Ms. Gray. The Court therefore grants summary judgment in favor of the Trustee.
II. Jurisdiction
The Court has jurisdiction to determine this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1834 and the general order of reference entered in this district. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(K).
III. Background
The Debtor filed a voluntary Chapter 7 petition on March 21, 2008 (“Petition Date”). Thereafter, the Trustee filed his complaint commencing this adversary proceeding and, after a pretrial conference, filed an amended complaint (“Amended Complaint”) (Doc. 11), to which he attached copies of the mortgages. By the Amended Complaint, the Trustee, pursuant to § 544(a), 2 seeks to avoid a first mortgage lien held by WMC 3 — which is evidenced by two separately recorded mortgage instruments — and preserve the lien for the benefit of the Debtor’s bankruptcy estate under § 551 of the Bankruptcy Code. 4 The parties have filed competing summary judgment motions (Docs. 16 & 17) and responses thereto (Docs. 19, 20 & 21). They also have filed a Stipulation of Facts (“Stipulations”) (Doc. 13), from which the following findings of fact are derived.
Prior to the Petition Date, Ms. Gray bought real property located at 311 Simpson Road, London, Ohio (“Property”) with funds loaned by WMC Mortgage Corp., the predecessor in interest to WMC, pursuant to a promissory note dated September 10, 2004 (“Note”). Richard E. Flax (“Mr.Flax”), the attorney for the title agency responsible for the closing, was the notary public before whom the Debtor signed the original mortgage (“Original Mortgage”). During the closing, Ms. Gray provided Mr. Flax with her identification so he could ensure that she was the person signing the Note and the Original Mortgage. At that time, Mr. Flax also took the acknowledgment of Ms. Gray and subscribed his name to the Original Mortgage. Mr. Flax, however, omitted Ms. Gray’s name and the date of her sig *273 nature from the certificate of acknowledgment.
The Original Mortgage was recorded on September 15, 2004 in the Recorder’s Office for Madison County, Ohio, (“Recorder”). Approximately eight months later, Mr. Flax — after being advised by WMC that his certificate of acknowledgment had not included the date of signature or Ms. Gray’s name — caused the omitted information to be typed on a copy of the recorded Original Mortgage. In addition, the following hand-written notation was placed on the first page of the Original Mortgage: “Re-recorded to add date and name of mortgagor, p. 13.” Mr. Flax then caused this copy of the mortgage (“Re-Recorded Mortgage”) to be recorded on May 6, 2005. Ms. Gray did not re-sign the Re-Recorded Mortgage. 5 WMC does not allege that Ms. Gray re-acknowledged her signature.
IV. Arguments of the Parties
WMC disputes the Trustee’s contention that the omission of the signature date from the certificate of acknowledgment rendered the certificate defective, but concedes that the omission of Ms. Gray’s name had that effect. See Reply of Defendant WMC Mortgage, LLC to Trustee’s Motion for Summary Judgment (“Reply”) (Doc. 19) at 1. WMC, however, contends that the inclusion of the omitted information in the Re-Recorded Mortgage makes that mortgage valid and unavoidable. The Trustee disagrees. According to the Trustee, Mr. Flax’s corrective actions were of no effect because “[t]he alterations, made without the Debtor’s knowledge, change the mortgage [from] one that is defective under Ohio law and avoidable by the Trustee into one which is valid under Ohio law and not avoidable by the Trustee.” Plaintiffs Motion for Summary Judgment (Doc. 16) at 4.
WMC counters with the argument that, despite the deficient certification, the Original Mortgage was always effective between WMC and the Debtor. Further, WMC contends, the addition of Ms. Gray’s name and the date of signing “neither abrogated the rights of any intervening third party, nor did it improperly increase or decrease the scope of the mortgage.” Motion of Defendant WMC Mortgage, LLC for Summary Judgment at 5 (“WMC Motion”) (Doc. 17); Reply at 2-3. According to WMC, “all that is required is that the acknowledgment be taken after the execution of the instrument, during the time the instrument is effective, and while the person taking the acknowledgment is authorized to do so.” WMC Motion at 4-5 (footnotes omitted). WMC contends that the Trustee cannot avoid the Re-Recorded Mortgage because it met each of the requirements for the proper execution of a mortgage and did so prior to the Petition Date.
Y. Legal Analysis
A. This Matter is Appropriate for Summary Judgment.
Under Fed.R.Civ.P. 56(c), made applicable in this adversary proceeding by Fed. R. Bankr.P. 7056, summary judgment is appropriate where “the pleadings, the dis
*274
covery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Novak v. MetroHealth Med. Ctr.,
Here, the parties agree, and the Court finds, that no genuine issue of material fact exists. Summary judgment, therefore, is appropriate.
B. The Trustee May Avoid Both Mortgages.
Applicable state law — here, the law of Ohio — governs the validity and priority of mortgages as against bankruptcy trustees seeking to avoid the mortgages in their capacities as hypothetical bona fide purchasers and judicial lien creditors.
See Kildow v. EMC Mortgage Corp. (In re Kildow),
To determine whether a mortgage governed by Ohio law is properly executed, the Court looks to Ohio Revised Code § 5301.01(A), which provides as follows:
A ... mortgage ... shall be signed by the ... mortgagor.... The signing shall be acknowledged by the ... mortgagor ... before a judge or clerk of a court of record in this state, or a county auditor, county engineer, notary public, or mayor, who shall certify the acknowl-edgement and subscribe the official’s name to the certificate of the acknowl-edgement.
Ohio Rev.Code Ann. § 5301.01(A) (West 2009).
6
Under this statute, four require
*275
ments must be met, two by the mortgagor and two by the presiding public official (in this case, a notary public): the mortgagor must sign the mortgage and acknowledge the signing before the notary public, and the notary public must certify the acknowledgment and subscribe his or her name to the certificate.
See Peed,
1. The Original Mortgage and the Requirement of Identification
The requirement of certification necessitates “some identification of the person whose signature is being acknowledged.”
Geygan v. World Savs. Bank (In re Nolan),
2. The Re-Recorded Mortgage and the Principle of Functus Oficio
The Re-Recorded Mortgage fails the certification requirement because Mr. Flax’s re-certification and re-recording without re-acknowledgment was of no effect. In so holding, the Court relies on the doctrine of
functus officio
and case law applying it.
Functus
means “having performed” and
officio
means “office.” Thus, the phrase
functus officio
means “ ‘having performed his or her office,’ which in turn means that the public officer is ‘without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.’ ”
State ex rel. Ohio Gen. Assembly v. Brunner,
Elliott v. Peirsol’s Lessee,
Had the clerk authority to alter the record of his certificate of the acknowledgment of the deed, at any time after the record was made? We are of opinion he had not.
We are of opinion he acted ministerially, and not judicially, in the matter.[ 7 ] Until his certificate of the acknowledgment ... was recorded, it was ... alterable at the pleasure of the officer. But the authority of the clerk to make and record a certificate of the acknowledgment of the deed, was functus officio, as soon as the record was made. By the exertion of his authority, the authority itself became exhausted. The act had become matter of record, fixed, permanent, and unalterable....
If a clerk may, after a deed, together with the acknowledgment or probate thereof have been committed to record, under colour of amendment, add any thing to the record of the acknowledgment, we can see no just reason why he may not also subtract from it.
Peirsol’s Lessee,
The Ohio Supreme Court was the next to apply the doctrine. In
Doe v. Dugan, 8
Ohio 87 (Ohio 1837), the sheriff of Hamilton County, Ohio had executed a sheriffs deed while still in office. However, he did not acknowledge the deed until after leaving office; the acknowledgment recited that it was by the
“late
sheriff.”
Dugan, 8
Ohio at 88. After the deed was recorded, the county recorder made a memorandum on the register regarding the deed, as follows: “This deed was drawn by the recorder, and executed in his presence by the sheriff. It was left in the office of the sheriff, subject to some arrangements with the grantee, but not delivered to him afterward; by an error entered on record, by the recorder, J.W. Browne.”
Dugan,
Given that the validity of a mortgage certification is governed by state law,
9
Du-
*277
gan
is controlling and requires the Court to conclude that the re-recording attempted here was invalid.
Peirsol’s Lessee,
which is highly persuasive, leads the Court to the same conclusion. Although the Court need rely on no other authority, it is worth noting that the vast majority of courts considering the issue likewise have held that an attempt by a notary public or other public official to correct a certification of acknowledgment after the document on which it appears has been recorded is void absent re-acknowledgment by the grantor.
See Griffith v. Ventress,
Although not relied upon by WMC, a minority of courts have held that a public official has the authority to correct a certificate of acknowledgment and cause the mortgage to be rerecorded — even without re-acknowledgment — so long as the rights
*278
of third parties have not intervened.
See Banks v. Shaw,
WMC has cited two decisions for the proposition that “Ohio law allows a defective mortgage to be corrected and re-recorded.” WMC Motion at 5 (citing
Indy-Mac Bank, FSB v. Bridges,
In Ohio, a “notary public is a public officer.”
State ex rel. Smith v. Johnson,
Ignoring the principle of jfunctus officio, WMC contends that a mode of argumentation and style of reasoning described by different Latin terminology — reductio ad absurdum — controls the outcome of this adversary proceeding:
*279 The Trustee has also offered no evidence or law to support his assertion that re-recording to correct the formalities of execution is prohibited by Ohio law when there are no intervening innocent third parties or bona fide purchasers and no material alteration. If the Trustee’s argument were taken to its reductio ad absurdum, then no deed or conveyance could ... ever be re-recorded to correct a recording defect as such act would be considered a ‘material alteration’ — hardly the intent of the Ohio legislature.
Reply at 3.
Reductio ad absurdum
is “Latin [for] ‘reduction to the absurd’ ” and is shorthand “[i]n logic [for] disproof of an argument by showing that it leads to a ridiculous conclusion.”
Black’s Law Dictionary
1305 (8th ed.2004). The
reductio ad ab-surdum
postulated by WMC is as follows: The Trustee’s argument is that Mr. Flax could not revise his certificate to include Ms. Gray’s name because of the “general rule of the law that the unauthorized material alteration of a written instrument by the holder, or with his consent, vitiates it as to non-consenting parties.”
Thompson v. Massie,
This
reductio ad absurdum
is unpersuasive for several reasons. First, the Court’s decision is not based on the material-alteration rule. As explained in
Huntington & McIntyre v. W.M. Finch & Co.,
Nor is the
reductio ad absurdum
suggested by WMC really absurd at all. A lender and notary public can always cause a defective document to be re-recorded with the cooperation of the mortgagor.
See McMullen,
Finally, rather than supporting its position, WMC’s appeal to the intent of the Ohio legislature also counsels in favor of the Court’s decision. The purpose of the statutory requirements for the acknowledgment and certification of mortgages and other real property instruments is not only to “prevent the perpetration of frauds on the grantors,” but also to “afford reasonable assurance to those who deal with or on the faith of such instruments that they are genuine and represent bona fide transactions.”
Amick v. Woodworth,
[The principles requiring re-acknowledgment] may work a hardship in some cases, but they afford a much safer protection to titles than to leave such an important interest to the voluntary action and uncertain memory of the officers authorized by statute to take acknowledgments and make the certificates.... If he can make a new certificate four years after the deed has been delivered and recorded, why not 20 years after, and, perhaps, after parties and witnesses have died?
Griffith, 8
So. at 315.
See also Peirsol’s Lessee,
VI. Conclusion
For the foregoing reasons, the Court GRANTS the Trustee’s motion for summary judgment and DENIES WMC’s motion for summary judgment. The Court will issue a separate judgment entry in accordance with this memorandum opinion.
IT IS SO ORDERED.
Notes
. WMC is the successor in interest to Defendant WMC Mortgage Corp.
.Section 544(a) of the Bankruptcy Code provides as follows:
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by—
(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists;
(2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or
(3)a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists. 11 U.S.C. § 544(a).
. WMC also holds a second mortgage against the Debtor's real property, which the Trustee has not sought to avoid.
. “Any transfer avoided under section ... 544 ... is preserved for the benefit of the estate but only with respect to property of the estate.” 11 U.S.C. § 551.
. Attached as Exhibit C to the Stipulations is a copy of a mortgage purported by the parties to be the Original Mortgage. The mortgage attached as Exhibit C, however, does not match the description of the Original Mortgage to which the parties have stipulated and does not match the description or copies of any mortgage attached to the Amended Complaint. Rather, the mortgage attached as Ex-hibil C to the Stipulations is a second mortgage held by WMC on the Property, which the Trustee has not sought to avoid. The Court, therefore, will base its analysis of the Original Mortgage on the copy attached as Exhibit 1 to the Amended Complaint, which matches the description of the Original Mortgage set forth in the Stipulations.
. The Ohio Revised Code sometimes uses the spelling acknowledgment and other times the *275 variant spelling acknowledgement. Both are correct, although acknowledgment is more commonly used in American English. In this opinion, the Court will use the spelling used in the original source when quoting a statute, but otherwise will use acknowledgment.
. Likewise, in Ohio, taking an acknowledgment is a ministerial, not a judicial, act.
See Collett v. Cogar,
. Under Ohio law as enunciated by the Ohio Supreme Court after
Dugan,
the sheriff's signing of the deed in the presence of the recorder would have constituted his acknowledgment.
See Wayne Bldg. & Loan Co. v. Hoover,
.Ohio law is controlling here — both on the question of whether the original mortgage was properly executed and the question of whether the re-certification and re-recording of the mortgage was of any legal effect.
See Butner,