Hardesty v. CitiFinancial, Inc. (In re Roberts)

Summarized by James Bailey , Butler Snow LLP
15 years 5 days ago

Citation:

Sixth Circuit Court of Appeals Case No. 09-4448 Opinion Mar. 1, 2011

Tag(s):

6th Circuit

Ruling:

In consolidated appeals from the Sixth Circuit Bankruptcy Appellate Panel, Court of Appeals affirmed decisions of bankruptcy court denying bankruptcy trustees' request to avoid debtors' mortgages due to allegedly defective acknowledgments.The Court of Appeals has designated the opinion as "Not Recommended for Full-Text Publication."

Procedural context:

Trustees in unrelated cases sought to avoid mortgages due to allegedly defective acknowlegements. The bankrutpcy court denied the trustees' requests. The Sixth Circuit Bankruptcy Appellate Panel summarily affirmed the bankruptcy court's decisions. The trustees appealed to the 6th Circuit.

Facts:

The disagreement in this case centers around whether the phrase "executed before me" int he acknowledgements to the mortgages is the substantial equivalent of the phrase "acknowledged before me" reequired by Ohio Rev. Code Ann. § 5301.01(A). First, the Court analyzed Ohio Rev. Code Ann. §147.55 which provides a statutory short form acknowledgement. The Court noted that the language of this section itself "does not preclude the use of other forms." Further, the Court noted that Ohio Rev. Code Ann. §147.54 provides that "[t]he form of a certificate of acknowledgement ...shall be accepted in this state if...[t]he cetificate contains the words 'acknowledged before me,' or their substantial equivalent." Second, the Court evaluated the provisions of Ohio Rev. Code Ann. §147.541 and the four elements of the definition of the phrase "acknowledeged before me." The Court found that the bankruptcy court had carefully analyzed the language of the certificates in the mortgages and reasonably concluded that "the Trustee ha[d] not carried his burden of proving the avoidability of the Mortgage."

Judge(s):

Martha Craig Daughtrey, Eric L. Clay, Helene N. White

ABI Membership is required to access the full summary. Please Sign In using your ABI Member credentials. Not a Member yet? Join ABI now - it is absolutely worth it!