National City Mortgage v. Gordon (In re Bennett)

Summarized by Gaston Loomis , McElroy, Deutsch, Mulvaney & Carpenter LLP
12 years 9 months ago

Citation:

National City Mortgage v. Gordon (In re Bennett), No. 12-13239 (11th Cir. May 29, 2013)

Tag(s):

Ruling:

On appeal, the Eleventh Circuit looked to Georgia law and found that a rider could not cure the defects involving attestation. The Eleventh Circuit also held that Georgia law dictated that a rider could not put a bona fide purchaser on inquiry notice of a mortgage company's lien in the absence of an adequate description of the property. Here, the property was not adequately described in the rider and so there was no inquiry notice provided by the rider. The Eleventh Circuit affirmed the opinions of the lower courts.

Procedural context:

Appeal from the District Court which had affirmed the holding of the Bankruptcy Court. The appeal involved the impact of a rider attached to the mortgage which was entitled "waiver of borrower's rights". In issuing its opinion, the Elevent Circuit predominently relied on precedent established by the Georgia Supreme Court.

Facts:

Prior to filing bankruptcy, the Debtor took out a mortgage from Wells Fargo. The attestation page of the security deed failed to contain the signature of "one additional witness" as required by Georgia statute. Thus, after filing bankruptcy, the Trustee successfully avoided Wells Fargo's lien as it had been improperty recorded. Wells Fargo appealed to the District Court.

Judge(s):

Circuit Judges Carnes, Wilson and Anderson

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