The United States Court of Appeals for the Eleventh Circuit has certified the following questions to this Court:
1. Whether a security deed that lacks the signature of an unofficial witness should be considered “duly filed, recorded, and indexed” as required by OCGA § 44-14-33, such that a subsequent hypothetical bona fide purchaser would have constructive notice when the deed incorporates the covenants, terms, and provisions of a rider that contains the attestations required by OCGA § 44-14-33 and said rider is filed, recorded, and indexed with the security deed?
2. If the answer to question one (1) is in the negative, whether such a situation would nonetheless put a subsequent hypothetical bona fide purchaser on inquiry notice?
For the reasons that follow below, we answer both certified questions in the negative.
The underlying facts are undisputed. In 2006, debtor Denise Codrington executed a security deed with appellant Wells Fargo that was recorded with the Clerk of the Superior Court of Fulton County on October 13, 2006. Paragraph 23 of the security deed provides: “[i]f one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants of each such rider shall be incorporated into . . . this Security Instrument as if the rider(s) were a part of this Security Instrumént.” The security deed specifically identifies the “ARM Rider” as being incorporated therein. The last page of the eight-page security deed was signed by the debtor, the co-debtor (Alvina Codrington), and a notary, but the signature line for an “Unofficial Witness” was left blank. Contemporaneously recorded with the security deed were the following: “Exhibit A” containing a description of the property, the “Adjustable Rate Rider,” the “Planned Unit Development Rider,” and the “Waiver of Borrower’s Rights” (hereinafter, “the waiver”).
In June 2008, the debtor filed for Chapter 7 bankruptcy. Appellee Neil C. Gordon, who is the Trustee for the debtor’s bankruptcy estate, commenced an adversary proceeding against Wells Fargo seeking to avoid Wells Fargo’s interest in the property pursuant to 11 USC § 544. Appellee asserted that because the security deed lacked the signature of an unofficial witness, it was not duly recorded and it did not provide constructive notice to a subsequent bona fide purchaser, rendering the security deed avoidable per 11 USC § 544. Wells Fargo moved for summary judgment, the bankruptcy court denied the motion, and the bankruptcy court entered judgment in favor of appellee. In re Codrington,
1. In order for a security deed to be in recordable form, it must be attested by an official witness and an unofficial witness. OCGA §§ 44-14-61 and 44-14-33. Specifically, OCGA § 44-14-33 provides that a security deed “must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of
Despite the facial defect in the security deed at issue, Wells Fargo urges that because the waiver was attested in accordance with OCGA § 44-14-33 and because the waiver was incorporated into the security deed by reference, the security deed was thereby properly attested and in recordable form. We disagree. While we are not bound by the United States bankruptcy courts’ interpretations of Georgia law, we nevertheless find In re Fleeman,
By attesting a document, an individual signifies that he has witnessed the execution of the particular document. Black’s Law Dictionary 117 (5th ed. 1979) (citations omitted). Thus the signature of [the unofficial witness], which appears on the adjustable rate rider, attests to the proper execution of that document only. Although the adjustable rate rider is incorporated into the terms of the deed to secure debt, the deed to secure debt itself remains improperly attested and ineligible for recordation.
Id. at 163.
We agree with the above analysis. As in Fleeman, the attestation of the waiver in this case cannot be substituted for the proper attestation of the security deed. Such a construct would be false and contrary to the purpose of attestation, namely for the witness to verify that the document in question has been executed by the signatories. Allowing a more lenient rule as Wells Fargo urges would likely lead to more complications than it would resolve for lenders, debtors, and subsequent purchasers alike. As we admonished in U. S. Bank N.A. v. Gordon, supra,
[A] purchaser of land in this state “is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.” [Cits.] . . . Although “it is essential that the description of the land in the conveyance should be reasonably certain and sufficient to enable subsequent purchasers to identify the premises intended to be conveyed; but while the description may be inaccurate, meager or erroneous, yet if it is expressed in such a manner or connected with such attendant circumstances as that a purchaser should be deemed to be put upon inquiry, if he fails to prosecute this inquiry he is chargeable with all the notice he might have obtained had he done so.” [Cit.]
Deljoo v. SunTrust Mortgage,
Certified questions answered.
Notes
See In re Codrington,
The page containing the waiver also contained a “Closing Attorney’s Affidavit” and a “Foreclosure Closing Disclosure.”
The bankruptcy court also determined that the affidavit of the unofficial witness was void because it was recorded after the bankruptcy petition had been filed in violation ofllUSC§362 (a) (5). Id.
SeeOCGA § 23-1-17, which defines “inquirynotice” as follows: “Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led.”