Sensenich v. Bank of America, N.A. , 356 F. App'x 512 ( 2009 )

09-2305-bk
Sensenich v. Bank of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16th day of December, two thousand and nine.
PRESENT:
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
Circuit Judges,
P. KEVIN CASTEL,
District Judge.*
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JAN M. SENSENICH , Chapter 13 Standing Trustee,
Plaintiff-Appellant,
v. No. 09-2305-bk
BANK OF AMERICA , N.A.,
*
The Honorable P. Kevin Castel, of the United States District Court for the Southern
District of New York, sitting by designation.
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Defendant-Appellee.**
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FOR PLAINTIFF-APPELLANT: JAN M. SENSENICH , pro se, Norwich, VT.
FOR DEFENDANT-APPELLEE: DAVID N. DUNN , Potter Stewart, Jr. Law Offices, P.C.,
Brattleboro, VT.
Appeal from a May 1, 2009 order of the United States District Court for the District of
Vermont (William K. Sessions, III, Chief Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-appellant Jan M. Sensenich (“Sensenich”) is the trustee of the Chapter 13 bankruptcy
estate of Nicholas W. Stanzione and Regina C. Stanzione (the “Stanziones”). Sensenich, in his capacity
as trustee, brought this adversary proceeding in the United States Bankruptcy Court for the District of
Vermont claiming that the mortgage of defendant-appellee Bank of America, N.A., against the
Stanziones’ home was invalid because the mortgage deed was “improperly . . . acknowledged” under
Vermont law. Lakeview Farm, Inc. v. Enman, 689 A.2d 1089, 1093 (Vt. 1997); see 27 V.S.A. § 341(a). The
Bankruptcy Court granted Bank of America’s motion for summary judgment, and Sensenich appealed
to the United States District Court for the District of Vermont. The District Court affirmed.
Sensenich now appeals to this Court. We affirm.
Sensenich claims that the acknowledgment form attached to the mortgage deed is invalid
because the Stanziones’ names were not written in the appropriate blank space on the acknowledgment
form. It is “perfectly apparent upon the face” of the acknowledgment form that the omission of the
Stanziones’ names was a “clerical error.” Wood v. Cochrane, 39 Vt. 544, 548 (1866). If the
acknowledgment form makes reference to another instrument, such as the mortgage deed, the other
instrument may be examined to “correct such error by construction.” Id. at 548-49.
The notarized acknowledgment form describes the individuals acknowledging their signatures
as the “signer(s) and sealer(s) of the foregoing written instrument.” Because the Stanziones are plainly
the signers of the “foregoing written instrument”—that is, the mortgage deed—the acknowledgment
“show[s] . . . with . . . certainty” that the Stanziones are the individuals described by the
acknowledgment form. See Richmond v. Woodard, 32 Vt. 833, 838 (1860). Therefore, the
acknowledgment form “should be construed the same as though the name[s] of” the Stanziones “had
been originally inserted” in the correct part of the form. Id. at 838. As a result, the mortgage deed was
validly acknowledged, and summary judgment for Bank of America was proper.
**
The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.
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CONCLUSION
For the foregoing reasons, the May 1, 2009 order of the District Court is AFFIRMED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
By _______________________________
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