Cornell v. Bank of America, N.A. (In re Pellerin)

2015 BNH 001, 529 B.R. 801, 2015 Bankr. LEXIS 469
CourtUnited States Bankruptcy Court, D. New Hampshire
DecidedFebruary 13, 2015
DocketBk. No. 12-13805-BAH; Adv. No. 14-1039-JMD
StatusPublished
Cited by2 cases

This text of 2015 BNH 001 (Cornell v. Bank of America, N.A. (In re Pellerin)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornell v. Bank of America, N.A. (In re Pellerin), 2015 BNH 001, 529 B.R. 801, 2015 Bankr. LEXIS 469 (N.H. 2015).

Opinion

MEMORANDUM OPINION

J. Michael Deasy, Bankruptcy Judge

I. INTRODUCTION

On February 3, 2015 the Court heard arguments on the Plaintiffs Motion for Summary Judgment filed by Mark P. Cornell, the chapter 7 trustee (the “Trustee”) (Doc. No. 35) (the “Trustee SJM”) and the Defendant’s Motion for Summary Judgment filed by The Bank of New York Mellon Trust Company, N.A. (“BONY”) (Doc. No. 34) (the “BONY SJM”). In order to prevail on a motion for summary judgment, the moving party must show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The summary judgment records reveal no disputed material facts. The legal issue in both motions is whether the acknowledgment attached to a mortgage is sufficiently defective to render the mortgage avoidable by the Trustee pursuant to 11 U.S.C. § 544(a) and preservable for the benefit of the bankruptcy estate pursuant to 11 U.S.C. § 551. After the hearing, the Court took both motions under advisement.

This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and Local Rule 77.4(a) of the United States District Court for the District of New Hampshire. This is a core proceeding in accordance with 28 U.S.C. § 157(b).

II. FACTS

The Debtors own real estate in Deny, New Hampshire, and executed a mortgage (the “Mortgage”) encumbering that real estate in favor of Bank of America, N.A., one of the named defendants in this action. The Mortgage was later assigned to BONY, another named defendant and one of the parties seeking summary judgment, who currently holds the Mortgage on the property.1 The Mortgage contains an acknowledgment which immediately follows the signature page of the Mortgage as page 15 (the “Acknowledgment”). The Acknowledgment reads as follows:

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[803]*803The Mortgage signature page does not include any date of execution. However, page 1 of the Mortgage contains a date of October 24, 2003, a month and day consistent with the Acknowledgment. The Mortgage was recorded in Rockingham County Registry of Deeds on October 30, 2003, at Book 4183, Page 1779. The Mortgage was assigned to BONY by an assignment dated March 4, 2013, and recorded in Rockingham County Registry of Deeds at Book 5416, Page 2985.

Despite the text of the Acknowledgment that indicates it was taken in the State of New Hampshire, BONY’s summary judgment record includes affidavits from each of the Debtors stating that the Mortgage was signed and acknowledged in the State of Massachusetts. The Trustee does not dispute those statements.

III. DISCUSSION

In New Hampshire, in order to be valid, a mortgage must be executed, acknowledged and recorded at length in the appropriate registry of deeds. NH RSA 477:1, 3-a, and 7. In the Trustee SJM, the Trustee contends that the Acknowledgment is defective and, therefore, the Mortgage is defective and not properly recorded. He cites Amoskeag Bank v. Chagnon, 133 N.H. 11, 14-16, 572 A.2d 1153 (1990), in support of his position. The Trustee argues that the Acknowledgment is defective because it does not contain (1) the name of the person(s) acknowledging the document; (2) the county where the acknowledgment was taken; and (3) the title of the officer taking the acknowledgment. The Trustee contends that under New Hampshire law an improperly recorded mortgage does not provide constructive notice to, or place on inquiry notice, a judicial lien creditor such as the Trustee under § 544(a)(1) of the Bankruptcy Code. Id.

In the BONY SJM, BONY contends that there is no dispute that the Mortgage was actually signed and acknowledged by the Debtors before a notary public and that the Mortgage was subsequently recorded, placing the entire world, including the Trustee on constructive notice of BONY’s security interest in the mortgaged property. BONY argues that the form of the Acknowledgment complies with applicable law, and that to the extent any minor defects exist, they do not render the Acknowledgment defective because the Acknowledgment substantially satisfies all applicable requirements.

The form and substance for a proper acknowledgment are governed by applicable state law. At the time the Mortgage was executed, an acknowledgment taken in the State of New Hampshire had to comply with New Hampshire’s version of the Uniform Acknowledgment Act, NH RSA 456 (the “UAA”), while an acknowledgment taken outside of the State of New Hampshire had to comply with the Uniform Recognition of Acknowledgments Act, NH RSA 456-A (the “URAA”). For purposes of both motions, the undisputed facts are that the Mortgage was executed in the State of Massachusetts even though the Acknowledgment indicates it was executed in the State of New Hampshire. Whether this discrepancy renders the Acknowledgment defective was not directly addressed by the parties. At best it is a minor defect, and at worst it is a false representation both by the persons acknowledging the instrument and by the officer taking their oaths. Because the parties do not dispute that portion of the summary judgment record indicating that the Mortgage was executed and acknowledged in the State of Massachusetts, the URAA apples to the Acknowledgment in question.

[804]*804The URAA provides that acknowledgments performed outside the State of New Hampshire for use in New Hampshire have the same effect as if performed by a notary public within the state if:

1. The acknowledgment is taken by a notary public, or other person, authorized to perform notarial acts in the place where the act is performed. NH RSA 456-A: 1.
2. The acknowledgment contains the signature and title of the person performing the act, which constitute prima facie evidence that the person has the designated title and that the signature is genuine. NH RSA 456-A:2.
3. The person taking the acknowledgment certifies that (a) the person acknowledging appeared before him and acknowledged he executed the instrument; and (b) the person acknowledging was known to the person taking the acknowledgment or that such person had satisfactory evidence that the person acknowledging the instrument was the person described in and who executed the instrument. NH RSA 456-A:3.

The URAA provides statutory short forms for acknowledgments but does not preclude the use of other forms. NH RSA 456-A:6. However, the acknowledgment must comply with the laws and regulations of the State of New Hampshire, or of the place where the acknowledgment is taken. NH RSA 456-A:4.

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Bluebook (online)
2015 BNH 001, 529 B.R. 801, 2015 Bankr. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornell-v-bank-of-america-na-in-re-pellerin-nhb-2015.