Wednesday, June 17, 2009

Bankruptcy decision invalidates mortgage

A recent decision by the United States Bankruptcy Court for Massachusetts dealt with the sufficiency of the acknowledgement of a mortgage. The case is In re Giroux, a May of 2009 decision and the alleged defect occured when the notary public failed to insert the borrower’s name into the notary clause (”Then personally appeared ______________ and acknowledged the foregoing to be his free act and deed”). The court held that even though the notary signed the notary clause which was located on the same page as the borrower’s signature, the absence of the borrower’s name in the middle of the clause invalidated the acknowledgement. Consequently, according to the court, the registry of deeds should not have recorded the document. Since the mortgage was therefore void, the lender was left as an unsecured creditor of the bankruptcy estate.

Ironically, the court cited the Massachusetts Deed Indexing Standards as support for its holding. The intent of the Indexing Standards was to be fairly liberal about what constitutes a sufficient acknowledgement, so the holding in this decision was certainly unexpected. Over the coming days, we’ll read the decision more closely, as well as the cases and statutes cited, to see whether it will alter our own standards for accepting documents for recording.