- BAP No. MS 13-012
- Bankruptcy court decision granting summary judgment against the plaintiff/trustee was reversed and the matter remanded for entry of orders consistent with the opinion.
- Procedural context:
- The plaintiff chapter 7 trustee appealed from an order granting summary judgment to the defendant mortgagee bank in an adversary proceeding to avoid the mortgage pursuant to §544(a).
- The chapter 7 trustee commenced an adversary proceeding against Wells Fargo Bank. He alleged that the notarization of the mortgage given by the debtors to Wells Fargo was materially defective such that it should not have been recorded and thus even if recorded, was ineffective to provide notice, as a matter of law. The bankruptcy court was not persuaded that the defect (consisting of ambiguous language in the notarization) was so material as to support the trustee's cause of action, which was to avoid the mortgage pursuant to §544(a). The BAP agreed with the bankruptcy court as to two of the trustee's three arguments. On the third, however, the BAP agreed with the trustee that the ambiguous language failed to express unequivocally that the execution of the Mortgage was the mortgagors "free act and deed", as required by the Massachusetts statute. Thus the bankruptcy court erred in granting summary judgment to the defendant.
- Haines, Deasy, and Godoy (author)
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3289 in the system
5 Being Processed