On this 6th day of April 2007, before me personally appeared to me known to be the person (or persons) described in and who executed the foregoing instrument, and acknowledged that he/she/they executed the same as his/her/their free act and deed.The problem is that big blank space following the word "appeared." I immediately recalled a blog post I wrote back in the summer of 2009 after the bankruptcy court issued a decision called In re Giroux. In that case, the Bankruptcy Court held that the absence of the name of the person whose signature was being acknowledged in the acknowledgement clause invalidated the acknowledgement. With no acknowledgement, the mortgage should not have been recorded by the registry of deeds. The bankruptcy trustee, therefore, was allowed to set aside the mortgage making the lender just another unsecured creditor of the debtor.
In today's conversation, I quickly revised my opinion to "if the Bankruptcy Court is used as precedent, then the mortgage is invalid" because neither the Massachusetts Appeals Court nor the SJC have ruled on this issue. Even so, based on the bankruptcy court decision back in 2009, I had advised the staff here at the registry to reject any document on which they noticed a name missing from the acknowledgement clause. I'm not sure how many documents they have rejected on that grounds, but that's our rule here.
The reason the lawyer called me today was that he had been retained to write an opinion letter on the validity of the mortgage bearing the acknowledgement reproduced above. His research disclosed that other bankruptcy court decisions have ratified the holding of Giroux and one even reached a US District Court which confirmed the "missing name equals invalid acknowledgement" rule, but he knew of no Massachusetts case law on the topic. He did say that he has found many documents already on record that lack the name of the party whose acknowledgment is purportedly being taken, so if that is fatal to the validity of the document, there are many problem documents lurking out there.