Gregory v. Ocwen Fed Bank

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 29, 2004
• Docket: 03-5626
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 2 In re Biggs No. 03-5626 Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0250P (6th Cir.) _________________ File Name: 04a0250p.06 COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Frank H. Reeves, HIX & GRAY, Nashville, Tennessee, for Appellant. Jeanne Burton Gregory, GIBSON, FOR THE SIXTH CIRCUIT GREGORY & GWYN, Nashville, Tennessee, for Appellee. _________________ ON BRIEF: Thomas W. Lawless, WILSON & ASSOCIATES, Nashville, Tennessee, for Appellant. Jeanne In re: RICHARD GLENN BIGGS X Burton Gregory, GIBSON, GREGORY & GWYN, Nashville, and KATHY JEAN BIGGS, a/k/a - Tennessee, for Appellee. KATHY JEAN MELTON, - - No. 03-5626 _________________ Debtors. - ________________________ > OPINION , _________________ - JEANNE BURTON GREGORY , - SUTTON, Circuit Judge. In this bankruptcy case, Ocwen Trustee, - Federal Bank claims that a deed of trust is valid against Plaintiff-Appellee, - subsequent purchasers of the property, even though the - required acknowledgment omits the names of the individuals - purporting to acknowledge their signatures on the deed. The v. - bankruptcy and district courts each held that a deed of trust - omitting this information was invalid under Tennessee law, OCWEN FEDERAL BANK, - and so do we. We affirm. Defendant-Appellant. - - I. N Appeal from the United States District Court On November 6, 1997, Richard and Kathy Biggs (the for the Middle District of Tennessee at Nashville. “debtors”) executed a deed of trust on their Tennessee home, No. 02-00904—Aleta A. Trauger, District Judge. securing a $65,000 loan and naming Seacoast Equities, Inc. as the beneficiary. The deed of trust consisted of four pages Argued: June 16, 2004 and contained the following partially completed, standard acknowledgment form on the last page: Decided and Filed: July 29, 2004

Before: SILER, DAUGHTREY, and SUTTON, Circuit Judges.

1 No. 03-5626 In re Biggs 3 4 In re Biggs No. 03-5626

STATE OF TENNESSEE County ss: Davidson before the notary.” Bankr. Ct. Order Avoiding Lien. Ocwen appealed the decision to the district court, which affirmed. On this 6 day of November 1997, before me “The omission of the names in the acknowledgment,” the personally appeared district court determined, “cannot be viewed . . . as [a] harmless or minor deviation[] from the standard form [blank] language set out in the statutes. It is at the core of what an acknowledgment is meant to do.” D. Ct. Op. at 5. to me known to be the person(s) described in and who executed the foregoing instrument, and who II. acknowledged the execution of the same to be [blank] free act and deed. Witness my hand and official seal. In reviewing a bankruptcy decision appealed to the district court, “[w]e accord no deference to the district court’s My Commission Expires: Indefinite decision [and] review de novo the bankruptcy court’s conclusions of law.” In re Kenneth Allen Knight Trust, 303 (illegible signature and notary seal) F.3d 671, 676 (6th Cir. 2002). Notary Public A. JA 24 (emphasis added to handwritten words). On January 12, 1998, Seacoast Equities recorded the deed of Commonly referred to as the “strong-arm clause,” section trust, then sold its interest in the deed to Ocwen Federal Bank. 544(a) of the Bankruptcy Code allows the trustee to “avoid any transfer of property of the debtor or any obligation On April 9, 2001, the debtors filed a bankruptcy petition incurred by the debtor that is voidable by . . . a bona fide under Chapter 7, after which the bankruptcy court assigned purchaser of real property . . . from the debtor, against whom Jeanne Burton Gregory to be the trustee. As trustee, Gregory applicable law permits such transfer to be perfected, that obtained the rights of “a bona fide purchaser of real property obtains the status of a bona fide purchaser and has perfected . . . from the debtor [who] has perfected such transfer at the such transfer at the time of the commencement of the case, time of the commencement of the case, whether or not such whether or not such a purchaser exists.” 11 U.S.C. § 544(a). a purchaser exists.” 11 U.S.C. § 544(a)(3). Believing that the More simply, the trustee hypothetically purchases the debtor’s acknowledgment was defective and that her status as a bona property at the commencement of the bankruptcy case, then fide purchaser gave her a superior interest in the debtors’ determines whether it is subject to any valid prior interests. home under Tennessee law, Gregory filed a complaint in the Here, then, the question is whether Ocwen’s deed of trust bankruptcy court to avoid the deed of trust held by Ocwen. amounts to a valid prior interest. The parties moved for summary judgment, and the To be valid under Tennessee law, a deed of trust must be bankruptcy court granted Gregory’s motion. In the absence registered and acknowledged: of the debtors’ names, the bankruptcy court reasoned, the acknowledgment was “not in substantial compliance [with Any of such instruments [including deeds of trust] not so Tennessee law] and that in order for a notarization to be . . . acknowledged and registered, or noted for effective, it must include the names of the people who appear registration, shall be null and void as to existing or No. 03-5626 In re Biggs 5 6 In re Biggs No. 03-5626

subsequent creditors of, or bona fide purchasers from, the Any certificate clearly evidencing intent to authenticate, makers without notice. acknowledge or verify a document shall constitute a valid certificate of acknowledgment for purposes of this Tenn. Code Ann. § 66-26-103 (emphasis added). “[A]n chapter and for any other purpose for which such acknowledgment . . . is the formal statement of the person certificate may be used under the law. It is the legislative signing the document that his [or her] signature was freely intent that no specific form or wording be required in done.” In re Marsh, 12 S.W.3d 449, 453 (Tenn. 2000) such certificate and that the ownership of property, or the (quotation omitted). determination of any other right or obligation, shall not be affected by the inclusion or omission of any specific To facilitate real-estate transactions, the Tennessee words. legislature has provided statutory forms that fulfill the acknowledgment requirement, and all of the forms require the Tenn. Code Ann. § 66-22-114(b) (emphasis added). We notary to include the names of the individuals acknowledging consider each savings statute in turn. their signatures. See Tenn. Code Ann. §§ 66-22-107 (individuals), -108 (corporations and partnerships), & -114 B. (agency relationships). While adherence to the statutory forms guarantees that an acknowledgment will be treated as Two recent decisions by the Tennessee Supreme Court, In valid, the Tennessee legislature has said that “no specific re Marsh, 12 S.W.3d 449 (Tenn. 2000), and In re Crim, 81 form or wording [is] required in such certificate and [] the S.W.3d 764 (Tenn. 2002), point the way in explaining why ownership of property, or the determination of any other right Ocwen fails to satisfy the “substantial compliance” test. In re or obligation, shall not be affected by the inclusion or Marsh involved a missing notary seal on an acknowledgment omission of any specific words.” Id. § 66-22-114(b). On top to a deed of trust. In holding that the missing seal rendered of this general relaxation of the acknowledgment requirement, the deed of trust void against subsequent purchasers of the Tennessee specifically forgives defective acknowledgments property, the court explained the significance of that in either “substance” or “intent” comply with the acknowledgments. An acknowledgment “authenticates the requirement. The first statute, the “substantial compliance” due execution of a document and is the formal statement of savings statute, reads: the person signing the document that his [or her] signature was freely done,” and “aids in ensuring that the instrument The unintentional omission by the clerk or other officer was not fraudulently executed.” In re Marsh, 12 S.W.3d at of any words in a certificate of an acknowledgment, or 453 (quotation omitted). A missing notary seal, the court probate of any deed or other instrument, shall in nowise concluded, “is more substantial than the simple omission of vitiate the validity of such deed, but the same shall be statutory language or the use of a different, yet equivalent good and valid to all intents and purposes, if the word . . . . [A] seal is either affixed or not affixed; this substance of the authentication required by law is in the requirement is not subject to substantial-compliance certificate. analysis.” Id. at 454. Id. § 66-26-113; see also In re Akins, 87 S.W.3d 488, 492 In re Crim emphasized the importance of identifying the (Tenn. 2002) (emphasis added). The second statute, the parties who acknowledge the deed. Using a power of “intent” savings statute, reads: attorney, a wife attempted to sign a deed of trust on behalf of No. 03-5626 In re Biggs 7 8 In re Biggs No. 03-5626

her husband, but the notary used an acknowledgment form instrument,” In re Crim, 81 S.W.3d at 768, and for that reason saying that both the husband and wife personally appeared alone the acknowledgment fails substantially to comply with before him and acknowledged their signatures. 81 S.W.3d at Tennessee law. The “substantial compliance” test “addresses 766. Building on In re Marsh, the court held that “the the unintentional omission of words by the officer taking an discrepancy in this case between the certificate of acknowledgment,” In re Akins, 87 S.W.3d at 493 (emphasis acknowledgment and the signatures on the deed of trust lends added), not the unintentional omission of the names of the uncertainty about the legal effectiveness of the instrument.” acknowledging individuals. Id. at 768; see also In re Marsh, 12 S.W.3d at 453 (“A creditor or purchaser who examines a deed of trust should be Ocwen’s arguments to the contrary do not hold. In re able to assume that if it contains an acknowledgment . . . then Akins, for example, did not involve the omission of names it has been properly authenticated and is valid, that is, free from the acknowledgment. It involved a failure by the notary from apparent forgery or fraud.”). “Substantial-compliance to indicate that she was personally familiar with the analysis is not proper” in a setting like this one, the court individual acknowledging the signature. This omission was reasoned, because “the notary failed to use the prescribed not fatal, the Tennessee Supreme Court held, because the statutory form of acknowledgment, with the result that the word “unmarried” next to the individual’s name in the certificate of acknowledgment contains false statements and acknowledgment indicated that the notary had some indicates a lack of compliance [with Tennessee law].” In re familiarity with the grantor. 87 S.W.3d at 495. That In re Crim, 81 S.W.3d at 769–70. Akins says Tennessee has “relaxed the requirements regarding the extent of a notary’s knowledge of the identity of an As In re Marsh and In re Crim indicate and as earlier individual” acknowledging a signature, id. at 494, does not decisions confirm, the authentication of a deed of trust is not mean that Tennessee has relaxed the requirement that the a purposeless formality. The procedure serves to verify the name of the individual appear on the acknowledgment. This identity of the individual signing the instrument and to further step, in our view, would not relax the acknowledgment establish a fraud-free system for recording the ownership of requirement but remove it altogether. real property—a necessary prerequisite to any free market. See Figuers v. Fly, 193 S.W. 117, 120 (Tenn. 1917) (“A Chronology alone makes In re Grable, 8 B.R. 363 (Bankr. certificate of acknowledgment is an act which must in the E.D. Tenn. 1980), a suspect basis for reversal. The case nature of things be relied on with confidence” by buyers and predates several recent decisions by the Tennessee Supreme sellers.). In this instance, the integrity of the acknowledgment Court on this topic, including In re Marsh and In re Crim. is placed in doubt because it omits the most important Even if that were not the case, however, we would not follow information on the acknowledgment form: who, if anyone, is the trail marked by the decision. In holding that the omission doing the acknowledging? Failing to name the individuals of names from the acknowledgment was not fatal to the deed who signed the deed of trust bears directly on the ability of a of trust, the court relied on the fact that the acknowledgment subsequent purchaser of real property to verify that the mentioned “the within named bargainor[s]” and indicated that instrument was signed by the true property owners. Without “they” executed the deed of trust. Id. at 365–66. The deed of it, a purchaser is left to wonder who appeared before the trust in turn described the debtors, the court held, and that notary, if indeed anyone appeared before the notary, to sufficed to establish that the notary adequately identified the acknowledge their signatures. In this sense, the missing individuals acknowledging their signatures. Id. at 366. names “lend[] uncertainty about the legal effectiveness of the Similarly, Ocwen argues, the form-printed phrase in this No. 03-5626 In re Biggs 9 10 In re Biggs No. 03-5626

acknowledgment—“to me known to be the person(s) Ocwen’s argument. As the Tennessee Supreme Court described in and who executed the foregoing recognized in In re Marsh, the failure to affix a notary seal instrument”—adequately identifies the debtors as the people renders the acknowledgment invalid, even when the parties do whose names can be found on the deed of trust and excuses not dispute the notary’s authority, 12 S.W.3d at 451 n.2, and the failure to include their names on the acknowledgment. even though “[t]he acts of a notary public are [] presumed to be performed correctly,” id. at 453. The presumption applies, In re Grable, however, misapprehends the role of an in short, when notaries perform the core functions of their job, acknowledgment. To permit the names in the deed of trust to not when they fail to perform them. satisfy the names-in-the-acknowledgment requirement is to eliminate the acknowledgment requirement. No one doubts C. that the names of the individuals on the deed of trust are the names of the individuals who should appear on the Ocwen fares no better under the “intent” test. For many of acknowledgment. The very point of the acknowledgment is the same reasons that it cannot satisfy the “substantial to have their signatures confirmed in the presence of a notary. compliance” test, it fails to satisfy this one as well. When notaries, however, merely take pre-printed forms and purport to notarize them without stating whose signatures The “intent” test looks to “the intent of the person signing they have notarized and who, if anyone, appeared before a document to properly acknowledge his or her signature.” In them, they not only undermine the Tennessee legislature’s re Akins, 87 S.W.3d at 493 (emphasis added). As In re Akins salutary purpose in creating statutorily-approved forms but indicates, the statute “requires only that a certificate of also fail to accomplish the signal reason for having an acknowledgment clearly evidence the signer’s intent to acknowledgment in the first place. Under Ocwen’s reading authenticate, acknowledge or verify a document,” and the of Tennessee law, a notary merely could notarize a acknowledgment in that case “clearly show[ed] Ronald L. statutorily-approved form—without filling in a single blank Akins’ intent to acknowledge his signature on the deed of space—and that alone would suffice to satisfy the trust.” Id. at 495 (emphasis added; quotations omitted). The requirement. Far from being a finicky exaltation of form over intent at issue, then, goes to the person or persons named in substance, the requirement that the grantors’ names appear on the acknowledgment. Because the notary in this instance the acknowledgment is essential to giving the named no one in the certificate of acknowledgment and we acknowledgment statute the modest substance that the cannot determine who, if anyone, intended to acknowledge Tennessee legislature thought it deserved. the signatures on the deed of trust, Ocwen cannot satisfy this test. Nor does it change matters that this pre-printed form not only has a notary’s signature on it but a date as well. That Conceding that “naming [the individuals] in the date no more establishes that the debtors truthfully and acknowledgment is a sufficient—indeed, the best—means of willfully signed the deed of trust than it establishes the date identifying the signers,” Appellant Br. at 12, Ocwen repeats that a real-estate fraud occurred. its argument that the phrase “the person(s) described in and who executed the foregoing instrument” adequately The “presumption that a sworn public official has acted establishes the debtors’ intent to acknowledge their lawfully,” Manis v. Farmers Bank of Sullivan County, 98 signatures. Other than In re Grable, however, Ocwen offers S.W.2d 313, 314 (Tenn. 1936), also does not advance no case support for this argument, and in this setting the No. 03-5626 In re Biggs 11 12 In re Biggs No. 03-5626

argument has even less to recommend it than it does in the certification. Therefore, the district court was correct in “substantial compliance” setting. Words from a pre-printed finding that the acknowledgment failed to comport with form, even words purporting to incorporate a document that Kentucky law.”). the debtors have signed (namely, the deed of trust), do not establish an intent to acknowledge their signatures when their III. names nowhere appear on the acknowledgment. For the foregoing reasons, we affirm. No more persuasive is Ocwen’s reference to signature guarantees for investment securities under the Uniform Commercial Code. See Tenn. Code Ann. § 47-8-306 (describing the warranties made by “a person who guarantees a signature” under various circumstances involving investment securities). Relying on the fact statement of an unpublished Texas Court of Appeals case, Holmes v. Nationsbank of Texas, N.A., No. 05-95-00525-CV, 1996 WL 479640, at *2 (Tex. Ct. App. Aug. 15, 1996), a less than formidable invocation of precedent, Ocwen claims that it is “customary” to omit the name of the person signing the document and merely stamp “signature guaranteed” beneath the signature. But Ocwen offers no explanation why this practice under the Uniform Commercial Code, if indeed it exists, has any bearing on acknowledgment requirements. The Tennessee legislature addresses real estate transfers and investment securities in separate statutory provisions, which not surprisingly contain separate requirements. Compare Tenn. Code Ann. § 66-22-107 (prescribing the statutory acknowledgment form for “natural persons acting in their own right,” which includes a blank space for the person’s name) with Tenn. Code Ann. § 47-8-306 (describing various warranties for signature guarantees but failing to provide a statutory form). And the Tennessee Supreme Court has never looked to the requirements of Tennessee Code § 47-8-306 in determining the requirements of an acknowledgment. At all events, if we were to look to decisions involving other States’ requirements in this and other areas, we would look to a recent holding from this Court involving Kentucky law and acknowledgments. See In re Vance, No. 02-6537, 2004 WL 771484, at *2 (6th Cir. Apr. 8, 2004) (per curiam) (“The notary failed to include [the individuals’ names] in the