Bankruptcy - Mortgage - Acknowledgement - Defect.

Byline: Tom Egan

Where a mortgage was recorded containing an acknowledgement that omitted the names of the borrowers, a subsequent affidavit from an attorney served to correct that defect.

"This is an appeal from a ruling of a United States Bankruptcy Judge for the District of Massachusetts. In an adversary proceeding, the bankruptcy court granted summary judgment in favor of the trustee of the bankrupt estate, allowing the trustee to avoid Bank of America's mortgage. The issue presented is whether an attorney's affidavit, later recorded with the registry of deeds, can cure a material defect in the acknowledgment to a mortgage that existed at the time the mortgage itself was recorded. The court ruled that under Massachusetts law the defect in the acknowledgement was not cured by the subsequently recorded affidavit. ...

"The parties are in agreement as to the underlying facts. In 1999 the debtor and his wife ('the Pereiras') purchased a property in New Bedford, Massachusetts. In December 2005, the Pereiras granted Bank of America a mortgage on the property. On the mortgage the Pereiras were identified as 'Borrowers' and they initialed the bottom of each unsigned page and executed the document, which was witnessed by Attorney Raymond J. Quintin. The acknowledgment jurat at the end of the mortgage document, however, omitted the names of the Pereiras.

"In an attempt to rectify the omission, Attorney Quintin recorded an affidavit with the Registry in January 2012, six months prior to the commencement of the bankruptcy case. In the affidavit, Attorney Quintin certified that he witnessed the Pereiras' signatures on the mortgage, that they provided him with satisfactory evidence of their identity, and that they acknowledged that they had signed the mortgage voluntarily. ...

"The bank relies on Massachusetts General Laws ch. 183, s.5B, which provides: 'Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are...

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