In Re: Bryan Scott Bennett, Nattional City Mortgage v. Neil C. Gordon ( 2013 )

Case: 12-13239 Date Filed: 05/29/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13239
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-03230-HTW
Bkcy No. 06-bkc-75213-CRM
In Re: BRYAN SCOTT BENNETT,
Debtor,
__________________________________________________________________
NATIONAL CITY MORTGAGE,
Plaintiff - Appellant,
versus
NEIL C. GORDON,
Chapter 7 Trustee for the Estate of Bryan Scott Bennett,
Defendant - Appellee.
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Appeals from the United States District Court
for the Northern District of Georgia
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(May 29, 2013)
Case: 12-13239 Date Filed: 05/29/2013 Page: 2 of 4
Before CARNES, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Bryan Scott Bennett gave National City Mortgage Company a security deed
on the property at 325 Shelley Lane, Locust Grove, Henry County, Georgia to
secure a loan. The deed was recorded with the Clerk of the Superior Court of
Henry County on October 15, 2001, but while the attestation page of the security
deed contained the signature of “an officer,” it did not contain the signature of “one
additional witness,” as required by Georgia Code § 44-14-33. Five years later,
Bennett declared bankruptcy. The Trustee contends that it can avoid the lien on
the Locust Grove property because the security deed was not properly recorded
due to the missing signature. The bankruptcy court granted the Trustee summary
judgment on that issue, and the district court affirmed. National City appeals,
arguing that the signature of one additional witness on the “waiver of borrower’s
rights,” which was attached to, filed with, and incorporated by reference1 into the
security deed, cures the filing defect in the security deed.
This case is controlled by the Georgia Supreme Court’s answer to our
certified questions in Wells Fargo Bank, N.A. v. Gordon, – S.E.2d –, 292 Ga. 474(Ga. 2013). In that case, the Court held that a deed’s incorporation of a rider that
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The district court held that the waiver was not incorporated into the security deed
because the deed incorporated all “riders” but the waiver was not a rider. We do not address that
argument because even if the waiver was properly incorporated, it does not cure the deed’s filing
defect.
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contained the attestations required by Georgia Code § 44-14-33 did not cure the
deed’s lack of the additional witness’s signature. 292 Ga. at 477. Therefore,
National City’s contention that the security deed in this case was properly filed is
incorrect.
National City also contends that the recordation of the waiver provides
inquiry notice of the rest of the security deed. That argument is foreclosed by
Wells Fargo. The Court held that the attested rider in Wells Fargo did not put a
bona fide purchaser on inquiry notice. Id. at 478. The Court explained: “In this
case, while the waiver identifies the lender and grantors . . . , it only generically
references a security deed and fails to identify or describe the property purportedly
to be conveyed or encumbered by the referenced security deed. In the total
absence of identification or description of the property subject to the security deed,
the waiver itself would not place a bona fide purchaser on notice that he should
make further inquiry.” 292 Ga. at 477–78.
The only question that remains for us to decide, then, is whether the waiver
in this case contains a sufficient description of the property encumbered by the
security deed. The waiver identifies the borrower, the lender, and the loan amount
and states that the loan is “secured by property located in land lot(s) 101, 2nd
district, Henry County, Georgia.” According to an assertion in the Trustee’s brief,
which National City has not disputed, land lot 101 in the 2nd District does not
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Case: 12-13239 Date Filed: 05/29/2013 Page: 4 of 4
identify just one address; it encompasses parts of at least three neighborhoods.
Accordingly, the description is “manifestly too meager, imperfect, or uncertain to
serve as adequate means of identification” and therefore does not provide inquiry
notice of the security deed. See id. at 477.
AFFIRMED.
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