Williams v. JPMorgan Chase Bank, N.A.

422 B.R. 185, 62 Collier Bankr. Cas. 2d 1932, 2009 Bankr. LEXIS 4088
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedDecember 21, 2009
DocketBankruptcy No. 1:08-bk-71338; Adversary No. 1:08-ap-07153
StatusPublished
Cited by2 cases

This text of 422 B.R. 185 (Williams v. JPMorgan Chase Bank, N.A.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. JPMorgan Chase Bank, N.A., 422 B.R. 185, 62 Collier Bankr. Cas. 2d 1932, 2009 Bankr. LEXIS 4088 (Ark. 2009).

Opinion

AMENDED MEMORANDUM OPINION

JAMES G. MIXON, Bankruptcy Judge.

On April 4, 2008, Mary Stewart (Debtor) filed a voluntary petition for relief under the provisions of Chapter 7 of the United States Bankruptcy Code. On September 11, 2008, the Trustee (Plaintiff) filed an adversary proceeding against JPMorgan Chase Bank, N.A. (Defendant) to avoid the mortgage lien and for turnover. The Defendant filed a response and a pre-trial brief. A hearing was held on August 25, 2009, after which the matter was taken under advisement. The Plaintiff and Defendant each filed post-trial briefs. The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E) & (K). The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

I.

FACTS

On February 17, 2006, the Debtor borrowed $105,661.00 from the Defendant and executed and delivered a promissory note payable to the Defendant. On the same day, the Debtor granted a mortgage lien to the Defendant to secure the note. The first page of the mortgage is attached as Exhibit A. It states that the borrower is “Mary Stewart, A Single Woman.” An acknowledgment followed the mortgage’s signature page. The acknowledgment did not contain the Debtor’s name. Rather, there is simply a blank space. The pronoun “he” is also inserted in the acknowledgment. A copy of the acknowledgment is attached as Exhibit B. The mortgage was recorded in the office of Ouachita County Circuit Clerk on February 23, 2006.

II.

ARGUMENT

The Plaintiff argues that pursuant to Arkansas Code Annotated §§ 16-47-106 & [188]*18816-47-101, the acknowledgment is defective on its face and, therefore, the mortgage lien is unperfected and should be avoided pursuant to the Trustee’s avoiding powers granted by 11 U.S.C. § 544(a) and § 550(a) of the Bankruptcy Code. The Plaintiff also asks for reasonable attorney fees pursuant to Arkansas Code Annotated § 16-22-308.

The Defendant argues that the lien is properly perfected because the acknowledgment is in substantial compliance with Arkansas law. In the alternative, the Defendant argues that Arkansas Code Annotated § 18-28-208 validates any defects and/or that the Defendant has an equitable lien on the property and is entitled to reformation of the mortgage.

III.

PERFECTION

Pursuant to 11 U.S.C. § 544(a) a trustee can avoid most pre-petition liens unless the liens were perfected under state law prior to the date the petition was filed. Shuster v. Doane (In re Shuster), 784 F.2d 883, 884 (8th Cir.1986); Hawkins v. First Nat’l. Bank (In re Bearhouse), 99 B.R. 926, 927 (Bankr.W.D.Ark.1989). In Arkansas, a mortgage lien is perfected by recording the mortgage in the office of the circuit clerk of the county where the land is located. Ark.Code Ann. §§ 18-40-101 & 18^40-102 (Michie 2003). In order for a mortgage to be recorded, the mortgage must contain an acknowledgment that complies with applicable state law. Ark. Code Ann. § 16-47-101 (Michie 2003); In re Bearhouse, 99 B.R. at 927. An instrument that is not properly acknowledged does not operate as constructive notice to third parties. Cumberland Building & Loan Ass’n. v. Sparks, 111 F. 647, 650 (8th Cir.1901); In re Bearhouse, 99 B.R. at 927(citations omitted). ‘An acknowledgment is a formal declaration or admission before an authorized public officer by a person who has executed an instrument that such instrument is his act and deed.’ ” In re Bearhouse, 99 B.R. at 927 (quoting Pardo v. Creamer, 228 Ark. 746, 751, 310 S.W.2d 218, 221 (1958)). A proper acknowledgment for a deed or instrument affecting real property is taken by the grantor appearing in person before the notary stating that he or she executed the deed or instrument. Ark.Code Ann. § 16-47-106(a)(Michie 2003); Jones v. Owen, No. 08-1436, 2009 WL 3400685, — S.W.3d -(2009).

An acknowledgment need not literally adhere to the statutory requirements, rather it will be sufficient if it substantially complies with the Arkansas statutes. In re Bearhouse, 99 B.R. at 927 (citing Bank of Hampton v. Wright, 35 F.2d 321, 322 (8th Cir.1929)). Courts will sustain a certificate of acknowledgment whenever it is possible to do so. 1 Am. Jur.2d Acknowledgments § 31 (citing Carpenter v. Dexter, 8 Wall. 513, 75 U.S. 513, 19 L.Ed. 426 (1869); In re Atlantic Smokeless Coal Co., 103 F.Supp. 348 (S.D.W.Va.1952)). The certificate and the instrument that it relates to may be read together in order to determine whether the certificate complies with the statute in question. 1 Am.Jur.2d Acknowledgments § 31.

In Bearhouse, this Court found an improperly acknowledged mortgage that is regular on its face will operate as constructive notice to third parties. In re Bear-house, 99 B.R. at 927. The Eighth Circuit Bankruptcy Appellate Panel, citing to Bearhouse, stated that “[w]hen an instrument is defective and the defect is apparent, either by reference to the acknowledgment alone or to the instrument as a whole, the instrument does not provide constructive notice to third parties under [189]*189Arkansas law.” Williams v. Wells Fargo Financial Mississippi 2, Inc. (In re Rick’s Auto Outlet of Monticello, LLC), 327 B.R. 650, 653 (8th Cir. BAP 2005). The Bankruptcy Appellate Panel found that the instrument in question did not provide constructive notice because the party signing only identified themselves as signing individually and not as members of their LLC. In re Rick’s Auto Outlet of Monticello, LLC, 327 B.R. at 653. The court found, looking to the instrument as a whole, it was not clear that the signors were signing in their corporate capacity. See In re Rick’s Auto Outlet of Monticello, LLC, 327 B.R. 650.

Some courts have found that an acknowledgment with a blank appearing where the name should be will not render the acknowledgment ineffective if the name could be easily ascertained from the document as a whole. Morton v. Resolution Trust Corp., 918 F.Supp. 985, 992 (S.D.Miss.1995); Farm Bureau Finance Co., Inc. v. Carney, 100 Idaho 745, 750, 605 P.2d 509, 514 (1980)(citing O’Banion v. Morris Plan Indus. Bank, 201 Okla. 256, 204 P.2d 872 (1949); Gardner v. Inc. City of McAlester, 198 Okla. 547, 179 P.2d 894 (1946); Coates v. Smith, 81 Or. 556, 160 P. 517 (1916)). See also Estate of Dykes v. Estate of Williams,

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Related

Caine v. First State Bank (In re Caine)
462 B.R. 688 (W.D. Arkansas, 2011)
In Re Stewart
422 B.R. 185 (W.D. Arkansas, 2009)

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Bluebook (online)
422 B.R. 185, 62 Collier Bankr. Cas. 2d 1932, 2009 Bankr. LEXIS 4088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-jpmorgan-chase-bank-na-arwb-2009.