Bank of America, N.A. v. Casey

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SJC-11943
BANK OF AMERICA, N.A. vs. DEBORA A. CASEY, trustee.1
February 11, 2016. - June 16, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Mortgage, Validity. Real Property, Mortgage.
Certification of questions of law to the Supreme Judicial
Court by the United States Court of Appeals for the First
Circuit.
Adam C. Ponte for the defendant.
Mark B. Johnson for the plaintiff.
Lawrence P. Heffernan & Danielle Andrews Long, for The
Abstract Club & another, amici curiae, submitted a brief.
BOTSFORD, J. We consider two questions certified to this
court by the United States Court of Appeals for the First
Circuit (First Circuit).2 The questions, which arise in
1
Of the bankruptcy estate of Alvaro M. Pereira.
2
Supreme Judicial Court Rule 1:03, as appearing in 382
Mass. 700 (1981), provides in relevant part: "This court may
answer questions of law certified to it by . . . a Court of
2
connection with a bankruptcy proceeding, concern the power and
effect of an affidavit of an attorney executed pursuant to G. L.
c. 183, § 5B, in relation to a mortgage containing a defective
certificate of acknowledgment. The two questions ask:
"1. May an affidavit executed and recorded pursuant
to [G. L. c.] 183, § 5B, attesting to the proper
acknowledgment of a recorded mortgage containing a
Certificate of Acknowledgment that omits the name of the
mortgagor, correct what the parties say is a material
defect in the Certificate of Acknowledgment of that
mortgage?
"2. May an affidavit executed and recorded pursuant
to [G. L. c.] 183, § 5B, attesting to the proper
acknowledgment of a recorded mortgage containing a
Certificate of Acknowledgment that omits the name of the
mortgagor, provide constructive notice of the existence of
the mortgage to a bona fide purchaser, either independently
or in combination with the mortgage?"
For the reasons that follow, we answer both questions yes, in
certain circumstances.3
1. Background.4 By quitclaim deed dated September 29,
1999, Alvaro and Lisa Pereira (collectively, Pereiras) acquired
title to the property located at 107 Colonial Drive in New
Appeals of the United States . . . when requested by the
certifying court if there are involved in any proceeding before
it questions of law of this State which may be determinative of
the cause then pending in the certifying court and as to which
it appears to the certifying court there is no controlling
precedent in the decisions of this court."
3
We acknowledge the amicus brief submitted by The Abstract
Club and the Real Estate Bar Association for Massachusetts,
Inc., in support of Bank of America, N.A. (bank).
4
The facts are taken from the record on appeal and are
undisputed.
3
Bedford (property). On October 1, 1999, the deed was recorded
with the Southern Bristol County registry of deeds (registry).
On December 27, 2005, the Pereiras refinanced the property,
granting to Bank of America, N.A. (bank), a mortgage in the
principal amount of $240,000. The Pereiras individually
initialed the bottom of each page of the mortgage agreement
except the signature page, on which the full signature of each
appears. Attorney Raymond J. Quintin also signed this page, as
witness to the Pereiras' execution of the mortgage. The
mortgage agreement contains a certificate of acknowledgment
(acknowledgment) on a separate page. The Pereiras individually
initialed the acknowledgment page at the bottom, but the
acknowledgment itself is blank in the space designated for the
names of the persons appearing before the notary public, and the
Pereiras' names do not appear elsewhere on the page.5 Quintin
5
The certificate of acknowledgment (acknowledgment) is a
preprinted page of the mortgage agreement, and provides as
follows:
"COMMONWEALTH OF MASSACHUSETTS Bristol County, ss.
"On this 27 day of December, 2005, before me, the
undersigned notary public, personally appeared
"[BLANK]
"through satisfactory evidence of identification, which
was/were MA Driver's Lic, proved to me to be the person(s)
whose name(s) is/are signed on the preceding document, and
acknowledged to me that he/she/they signed it voluntarily
for its stated purpose.
4
notarized the acknowledgment, affixing his signature and his
notary public seal.6 The mortgage agreement, with the
acknowledgment included, was recorded in the registry on
December 28, 2005.
On January 19, 2012, Quintin caused to be recorded in the
registry an affidavit titled "Attorney's Affidavit, M.G.L.
Ch. 183, Sec. 5B" (attorney's affidavit) that was dated
January 11, 2012. The attorney's affidavit states in relevant
part:
"I, Raymond J. Quintin, do under oath depose and say
that I am a practicing [a]ttorney . . . ; that I have
personal knowledge of the facts stated herein; that they
are relevant to the title to land in the property described
herein; and that this affidavit will be of benefit to
clarify the chain of title; and do hereby under oath depose
and say as follows:
"1. On December 27, 2005, I witnessed the execution
of a [m]ortgage from Lisa M. Pereira and Alvaro M. Pereira
to Bank of America, N.A. in the original principal amount
of $240,000.00, for the property located at 107 Colonial
Drive, New Bedford . . . . I subsequently recorded this
mortgage at the [registry] on December 28, 2005, in Book
7940, Page 14.
"My Commission Expires: July 10, 2009
"/s/ Raymond J. Quintin
"Notary Public, Raymond J. Quintin"
Words above that appear to be typed onto the preprinted page are
identified by emphasis.
6
See note 5, supra.
5
"2. Through inadvertence, the names of the parties
executing this mortgage, Lisa M. Pereira and Alvaro M.
Pereira, were omitted from the notary clause.
"3. I hereby certify that I witnessed their
signatures on said mortgage, that they provided
satisfactory evidence of their identity to me, and that
they acknowledged that they signed said mortgage
voluntarily.
"Signed under the pains and penalties of perjury this
11th day of January, 2012.
"/s/ Raymond J. Quintin
"Raymond J. Quintin"7
Approximately six months later, in July, 2012, Alvaro
Pereira (debtor) filed a voluntary petition in the United States
Bankruptcy Court for the District of Massachusetts, Eastern
Division (Bankruptcy Court), seeking bankruptcy relief pursuant
to Chapter 7 of the United States Bankruptcy Code, 11 U.S.C.
§§ 301 et seq. (2012) (Chapter 7). In September, 2012, Debora
Casey, the Chapter 7 trustee (trustee), filed an adversary
complaint in the bankruptcy action, seeking to avoid the 2005
mortgage granted by the Pereiras to the bank on the ground that
the mortgage contained a material defect, namely, the omission
of the mortgagors' names from the acknowledgment. On April 16,
2013, the bank filed a motion for summary judgment, arguing that
any material defect in the mortgage was cured by Quintin's
attorney's affidavit. The trustee opposed the motion, and after
a hearing, a judge in the Bankruptcy Court granted summary
7
The affidavit is notarized by a notary public identified
as Sara B. O'Leary.
6
judgment to the trustee, concluding that the material defect in
the mortgage -- the incomplete acknowledgment -- was not cured,
and could not be cured, by the attorney's affidavit. Ruling on
the bank's appeal, a judge in the United States District Court
for the District of Massachusetts (District Court) reversed and
granted summary judgment to the bank, based on the judge's
determination that Quintin's attorney's affidavit did clarify
the chain of title and in substance cured the material defect in
the mortgage created by the absence of the mortgagors' names
from the acknowledgment. Bank of Am., N.A. v. Casey, 517 B.R. 1
(D. Mass. 2014). The trustee appealed to the First Circuit,
which concluded that a proper resolution of the appeal turned on
undecided issues of Massachusetts law and accordingly certified
to this court the two questions previously set out.
2. Discussion. The starting point for both of the First
Circuit's questions is that a recorded mortgage, like the
Pereiras,' that omits the names of the mortgagors from the
mortgage's certificate of acknowledgment contains a material
defect. Both questions then focus on whether and, if so, how an
attorney's affidavit prepared pursuant to G. L. c. 183, § 5B
(§ 5B), may affect the material defect and the recording of the
mortgage.8 Before turning to the questions, it is useful to
8
General Laws c. 183, § 5B (§ 5B), provides in relevant
part:
7
summarize certain principles relating to deeds and mortgages
that provide context for the questions.
Under Massachusetts law,
"[t]itle to real estate may be transferred by a deed which
has not been acknowledged or which contains a certificate
showing a defective acknowledgement, and the deed is good
against the grantor and his heirs and those having actual
notice, G. L. (Ter. Ed.) c. 183, § 4 . . . ; but the
grantor must acknowledge that he has executed the
instrument as his free act and deed, and a certificate
reciting that the grantor appeared before the officer
making the certificate and made such acknowledgment must be
attached to the instrument in order to entitle it to be
recorded, G. L. (Ter. Ed.) c. 183, § 29; . . . so that
notice of the conveyance shall be given to all the
world. . . . The certificate of acknowledgment furnishes
formal proof of the authenticity of the execution of the
instrument when presented for recording" (citations
omitted).
McOuatt v. McOuatt, 320 Mass. 410, 413 (1946). Although
mortgages are not specifically mentioned in G. L. c. 183, § 4,9
"[A]n affidavit made by a person claiming to have
personal knowledge of the facts therein stated and
containing a certificate by an attorney at law that the
facts stated in the affidavit are relevant to the title to
certain land and will be of benefit and assistance in
clarifying the chain of title may be filed for record and
shall be recorded in the registry of deeds where the land
or any part thereof lies."
9
General Laws c. 183, § 4, provides in relevant part:
"A conveyance of an estate in fee simple, fee tail or
for life, or a lease for more than seven years from the
making thereof, or an assignment of rents or profits from
an estate or lease, shall not be valid as against any
person, except the grantor or lessor, his heirs and
devisees and persons having actual notice of it, unless it
8
referenced in the quoted passage from McOuatt, that statute
applies to mortgages, and requires that a mortgage be recorded
in the appropriate registry of deeds in order to provide
effective notice to anyone beyond the parties to the mortgage
transaction and those with actual notice of it. See Tramontozzi
v. D'Amicis, 344 Mass. 514, 517 (1962). In other words, unless
a mortgage is recorded, it does not provide constructive notice
of its existence.
General Laws c. 183, § 29, also referenced in the quoted
passage from McOuatt, provides:
"No deed shall be recorded unless a certificate of its
acknowledgement or of the proof of its due execution, made
as hereinafter provided, is endorsed upon or annexed to it,
and such certificate shall be recorded at length with the
deed to which it relates . . . ."10
. . . is recorded in the registry of deeds for the county
or district in which the land to which it relates lies."
10
The bank acknowledges that, as Tramontozzi v. D'Amicis,
344 Mass. 514, 517 (1962), states, a mortgage must be recorded
to provide constructive notice, but argues that G. L. c. 183,
§ 29, applies only to "deeds" and not to mortgages. The bank is
incorrect. Although § 29 expressly refers only to the recording
of a deed, under Massachusetts law the effect of a mortgage is
to transfer legal title of the mortgage property from the
mortgagor to the mortgage holder, and in that sense a mortgage
is a document of title transfer that operates as a deed. See,
e.g., Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 575-576
(2012), and cases cited. Accordingly, in order to be properly
recorded, a mortgage must have endorsed upon or annexed to it a
certificate of acknowledgment pursuant to § 29.
9
The acknowledgment required for proper recording of a mortgage
by § 29 need not take any one specific form. See G. L. c. 183,
§ 42.
The reason for requiring a certificate of acknowledgment to
be appended to a deed as a condition of the deed's proper
recording is most fundamentally to ensure that public notice of
the transfer of title to the land, appearing in the registry's
record, is accurate. See Pidge v. Tyler, 4 Mass. 541, 543, 545-
546 (1808). See also McOuatt, 320 Mass. at 414-415. This
reason applies with equal force to mortgages. See In re Giroux,
U.S. Bankr. Ct., No. 08-14708-JWF, slip op. at 12-16 (D. Mass.
May 21, 2009), aff'd, U.S. Dist. Ct., No. 09-CV-10988-PBS (D.
Mass. Nov. 17, 2009).
a. Question 1. The first question asks whether an
attorney's affidavit like Quintin's, executed and recorded
pursuant to § 5B and attesting to the proper acknowledgment of a
recorded mortgage that, as originally executed and recorded,
omitted the name of the mortgagor from the acknowledgment and
thereby contained a material defect, may correct that omission
and thereby the material defect. The trustee argues that the
answer to this question must be no. Although she does not
dispute the veracity of any of the facts averred in Quintin's
attorney's affidavit -- i.e., she does not question that
Quintin, in fact, did witness the Pereiras' voluntary execution
10
of the mortgage agreement with the bank on December 27, 2005 --
she contends that the affidavit nonetheless does not and legally
cannot cure the defect reflected in the acknowledgment. She
advances three reasons in support of her position that we next
discuss; we disagree with each of them.
i. "Functus officio."11 The trustee argues that the
doctrine or principle of "functus officio" prohibits a public
official, including a notary public such as Quintin, from
unilaterally recording what essentially constitutes a formal
reacknowledgment of the mortgage agreement without the assent of
the mortgagors, here the Pereiras.12 Functus officio is a
common-law principle that has been referenced in our cases since
at least the early Nineteenth Century. In those early cases,
the term appeared to signify that because of identified actions
taken by one or more relevant parties, a particular pleading
(e.g., a writ) or document with legal significance (e.g., a note
or mortgage) was of no further legal effect and could not be the
11
The bank argues that the trustee waived any argument
concerning the principle of "functus officio" by failing to
raise it in the earlier proceedings in this case. Waiver in
this instance is a matter for the United States Court of Appeals
for the First Circuit (First Circuit) to decide; to answer the
First Circuit's questions, we consider here the trustee's
functus officio argument.
12
"Functus officio" is defined as "without further
authority or legal competence because the duties and functions
of the original commission have been fully accomplished."
Black's Law Dictionary 787 (10th ed. 2014).
11
basis of any subsequent legal action. See, e.g., Kidder v.
Browne, 9 Cush. 400, 401-402 (1852) (writ filed by plaintiff
after statutory deadline for filing was functus officio);
Claflin v. Godfrey, 21 Pick. 1, 8-9 (1838) (where note or
mortgage was paid off, it was functus officio, i.e., no longer
operative); Clark v. Lyman, 10 Pick. 45, 47-48 (1830)
(attachment of property with altered writ of attachment in
violation of statute was functus officio). Currently, the
principle appears to be used primarily, if not exclusively, in
relation to arbitration awards and the power of an arbitrator.13
In this context, functus officio has been defined as meaning
"that an arbitrator is without power to modify his final award
except where the controlling statute or the parties authorize
modification." Ciampa v. Chubb Group of Ins. Cos., 26 Mass.
App. Ct. 941, 941 (1988). See Connecticut Valley Sanitary Waste
Disposal v. Zielinski, 436 Mass. 263, 268 (2002). Cf. Eastern
Seaboard Constr. Co. v. Gray Constr., Inc., 553 F.3d 1, 4 & n.2
(1st Cir. 2008) (Federal Arbitration Act).
We conclude that the principle of functus officio does not
apply here for two reasons. First, as just suggested, it is
13
Our research has not uncovered any case since 1926 in
which a Massachusetts appellate court has applied the principle
of functus officio outside the arbitration context. See
Kalbritan v. Isidor, 255 Mass. 494, 497-498 (1926) (execution
issued in "poor debtor" proceeding was functus officio where it
failed to show that time required by statute was allowed).
12
doubtful the principle continues to be recognized outside the
arbitration context.14 Second, § 5B, by its terms (see note 8,
supra), appears to contemplate that an attorney's affidavit
prepared and recorded in accordance with the requirements of
that statute, by "clarifying" the chain of title, will
necessarily alter at least in some respect that chain of title
as it is reflected in the documents previously recorded. In
other words, when its requirements are met, § 5B effectively
supersedes any continuing common-law functus officio principle
in this arena. See, e.g., Coburn v. Palmer, 10 Cush. 273, 275
(1852) ("the common law remains in force in all the cases in
which the statutes have not altered it").
ii. Curative provisions and effect of § 5B affidavit. The
trustee argues the following: the omission of the mortgagor's
name in the acknowledgment is a material defect that renders
invalid the recording of the mortgage to which the
acknowledgment is affixed; a § 5B attorney's affidavit like
Quintin's in this case is insufficient to correct such a defect
14
There is some question whether the functus officio
principle continues to operate even within the arbitration
context. See Eastern Seaboard Constr. Co. v. Gray Constr.,
Inc., 553 F.3d 1, 4 (1st Cir. 2008), citing and quoting Glass,
Molders, Pottery, Plastics, & Allied Workers Int'l Union, AFL-
CIO, CLC, Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 846
(7th Cir. 1995) (functus officio doctrine is "riddled with
exceptions . . . [and] is hanging on by its fingernails").
13
because G. L. c. 184, § 24,15 prescribes the sole means of curing
a defect in an acknowledgment; relief under § 24 was not pursued
here, and therefore, the recording of the Pereiras' mortgage
remained legally defective at the time the debtor filed his
Chapter 7 petition; and accordingly, the trustee, through the
exercise of her statutory "strong-arm" powers, see 11 U.S.C.
§ 544(a)(3) (2012),16 was entitled to avoid the mortgage for the
15
General Laws c. 184, § 24, as amended by St. 1964,
c. 311, § 1, provides in relevant part:
"When any owner of land the title to which is not
registered, or of any interest in such land, signs an
instrument in writing conveying or purporting to convey his
land or interest . . . and the instrument, whether or not
entitled to record, is recorded, and indexed, in the
registry of deeds . . . , and a period of ten years elapses
after the instrument is accepted for record, and the
instrument or the record thereof because of defect,
irregularity or omission fails to comply in any respect
with any requirement of law relating to . . . the validity
of . . . [a] certificate of acknowledgment . . . , such
instrument and the record thereof shall notwithstanding any
or all of such defects, irregularities and omissions, be
effective for all purposes to the same extent as though the
instrument and the record thereof had originally not been
subject to the defect, irregularity or omission, unless
within said period of ten years a proceeding is commenced
on account of the defect, irregularity or omission, and
notice thereof is duly recorded in said registry of deeds
and indexed and noted on the margin thereof under the name
of the signer of the instrument and, in the event of such
proceeding, unless relief is thereby in due course
granted."
16
Title 11 U.S.C. § 544(a)(3) (2012) provides:
"(a) The trustee shall have, as of the commencement of
the case, and without regard to any knowledge of the
trustee or of any creditor, the rights and powers of, or
14
benefit of the bankruptcy estate because the mortgage did not
represent a perfected security interest held by the bank.
We disagree with the premise of the trustee's argument that
§ 24 provides the sole means by which to cure a defect in an
acknowledgment of a mortgage; rather, as the Federal District
Court judge concluded, § 24 in effect creates a statute of
repose to protect the chain of title to real property from
attenuated challenges. The ten-year period stated in § 24
simply allows those individuals whose rights have been affected
by the purported conveyance to commence a proceeding to
vindicate their rights, but once ten years have elapsed, the
rights of those parties to challenge the validity of the
conveyance are lost. See Opinion of the Justices, 360 Mass.
894, 899 (1971) (describing § 24 as "curative legislation
providing for saving periods during which existing rights can be
preserved"). See also Nett v. Bellucci, 437 Mass. 630, 639
(2002) ("The purpose of a statute of repose is to give
particular types of defendants the benefit of a date certain on
may avoid any transfer of property of the debtor or any
obligation incurred by the debtor that is voidable by --
". . .
"(3) a bona fide purchaser of real property, other
than fixtures, from the debtor, against whom applicable law
permits such transfer to be perfected, that obtains the
status of a bona fide purchaser and has perfected such
transfer at the time of the commencement of the case,
whether or not such a purchaser exists."
15
which their liability for past conduct will definitively come to
an end"). Nothing in the language of § 24 states or implies
that it defines the exclusive permissible method of curing any
and all defects that may exist in an acknowledgment. Indeed,
the Legislature has enacted statutes in addition to § 24 that
provide solutions to certain types of problems relating to
acknowledgments; in this regard, see G. L. c. 183, §§ 36, 37.17
We consider § 5B to be another example of such a statute,
providing a method to correct certain types of errors that may
affect the validity of an acknowledgment that accompanies or is
annexed to a recorded deed or mortgage.
The question then becomes, what types of errors relating to
a defective acknowledgment may properly be corrected with an
attorney's affidavit prepared and recorded under § 5B. The
answer derives from the text of § 5B, and in particular, the
requirements that (1) facts contained in the affidavit must be
based on the personal knowledge of the affiant; and (2) the
affidavit include a certification by an attorney that the facts
stated are both relevant to the title of specifically identified
property and "will be of benefit and assistance in clarifying
17
General Laws c. 183, § 36, provides a method for curing a
grantor's refusal to acknowledge his or her deed by permitting a
subscribing witness to testify that the deed was duly executed;
G. L. c. 183, § 37, provides that where a grantor refuses to
acknowledge his or her deed, due execution may be shown by
proving the handwriting of the grantor and of a subscribing
witness.
16
the chain of title." The Legislature's choice of the word
"clarifying"18 suggests that the attorney's affidavit must be
limited to facts that explain what actually occurred, and are
not inconsistent with the substantive facts contained in the
original document.19 See Allen v. Allen, 86 Mass. App. Ct. 295,
299-300, 305-308 (2014) (facially proper acknowledgment,
reflecting grantor signed deed in presence of notary, deemed
invalid where evidence established grantor in fact did not
execute deed in notary's presence on date stated in deed).
Here, the undisputed facts indicate that the § 5B
attorney's affidavit recorded by Quintin was sufficient to
correct or cure the defect in the acknowledgment and, in turn,
the recording of the mortgage given by the Pereiras to the bank.
18
To "clarify" means "to free (the mind or understanding)
of confusion, doubt, or uncertainty"; "to explain clearly: make
understandable"; or "to make less complex or less ambiguous."
Webster's Third New International Dictionary 415 (1993).
19
In two recent cases, this court has approved the use of
an attorney's affidavit to clarify compliance with statutory
requirements relating to mortgages that appear in the chain of
title. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 244
(2015) (in connection with mortgage foreclosure proceeding,
mortgage holder may record attorney's affidavit to demonstrate
compliance with notice provisions of paragraph 22 of standard
mortgage); Eaton, 462 Mass. at 589 n.28 (mortgage holder may use
attorney's affidavit to establish it held note or was agent of
note holder at time of foreclosure sale). These decisions serve
to illustrate the point we make here, which is that § 5B permits
attorney's affidavits to explain a set of existing facts
relevant to the chain of title where the facts had not been
stated explicitly in the property record, whether through
inadvertent omission or mistake or because no document
previously called for them.
17
The defect in the acknowledgment was the omission of the names
of the mortgagors; Quintin's attorney's affidavit supplies the
missing information and confirms that all the steps necessary to
acknowledge the mortgage properly were taken, namely, that the
mortgagors, Lisa M. Pereira and Alvaro Pereira, personally
appeared before the affiant, Quintin; that Quintin confirmed
their identities; that he witnessed them execute the mortgage
agreement; and that they did so voluntarily. The affidavit also
attests that the omission of the mortgagors' names was
inadvertent, and, finally, references the book and page number
of the previously recorded mortgage -- a step that enables the
two documents to be connected, thereby effectuating the intended
clarification of the chain of title.
iii. Illegally recorded mortgage. Finally, the trustee
argues that because the defect in the certificate of
acknowledgment precluded the mortgage to which it was annexed
from being legally recorded, see G. L. c. 183, § 29, the
mortgage did not and could not enter the chain of title relating
to the property. As a consequence, she claims, nothing exists
on record to be "clarified" by an attorney's affidavit recorded
pursuant to § 5B. See In re Mbazira, U.S. Bankr. Ct., No. 13-
16586-WCH (D. Mass. Mar. 31, 2015) ("[I]f a [mortgage] is
improvidently recorded due to a defective acknowledgement, the
court must honor [G. L. c. 183, § 29,] by adopting a fiction
18
that the [mortgage] is unrecorded and outside the chain of
title"). We disagree. As indicated previously, we have
accepted the premise on which the First Circuit's questions are
based, namely, that the omission of the names of the mortgagors
in an acknowledgment is a material defect. It follows that
under G. L. c. 183, § 29, the defect should operate to preclude
the legal recording of the mortgage. For the reasons previously
discussed, however, an attorney's affidavit filed and recorded
pursuant to § 5B that supplies the omitted names of the
mortgagors, explains the circumstances of the omission, and
confirms that in fact the affiant did witness the voluntary
execution of the mortgage by the mortgagors on the date stated
operates to cure the original defect in the acknowledgment. The
curing of the defect in the acknowledgment also cures the defect
in the original recording of the mortgage, and the mortgage
thereafter is properly considered within the mortgage property's
chain of title.20
20
General Laws c. 183, § 29, requires that a certificate of
acknowledgment be "endorsed upon or annexed to" the recorded
mortgage (emphasis added). It could be argued that even where
an attorney's affidavit supplies necessary information that was
omitted inadvertently from the original acknowledgment, it
cannot cure that original defect because the attorney's
affidavit, recorded at some time after the original
acknowledgment was recorded, is by definition not "endorsed upon
or annexed to" the mortgage itself. We agree with the Federal
District Court judge, however, that where, as here, the
attorney's affidavit explicitly references the book and page
numbers where the mortgage and original acknowledgment were
19
b. Question 2. The second question asks whether an
attorney's affidavit, attesting to the proper acknowledgment of
a previously recorded mortgage accompanied by an acknowledgment
that omitted the name of the mortgagor, may provide constructive
notice to a bona fide purchaser of the existence of the
mortgage, by itself or in combination with the mortgage.
We answer as follows. As applied to the chain of title to
real property, constructive notice arises by operation of law
under G. L. c. 183, § 4, in any case where the mortgage is
properly recorded.21 See Allen, 86 Mass. App. Ct. at 298-300,
and cases cited. See also Tramontozzi, 344 Mass. at 517.22 If a
deed or mortgage is recorded without an acknowledgment, it is
recorded, the affidavit is properly deemed "annexed" to the
mortgage.
21
"Constructive notice" is defined as "[n]otice arising by
presumption of law from the existence of facts and circumstances
that a party had a duty to take notice of, such as a registered
deed or a pending lawsuit; notice presumed by law to have been
acquired by a person and thus imputed to that person." Black's
Law Dictionary 1227 (10th ed. 2014).
22
Cf. In re Ryan, 851 F.2d 502, 506-507 (1st Cir. 1988),
quoting Tiffany's Law of Real Property § 1284, at 50 (B. Jones
ed. 1939) ("It would seem that one might properly be said to
have actual notice when he has information in regard to a fact,
or information as to circumstances an investigation of which
would lead him to information of such fact, while he might be
said to have constructive notice when he is charged with notice
by a statute or rule of law, irrespective of any information
which he might have, actual notice thus involving a mental
operation on the person sought to be charged, and constructive
notice being independent of any mental operation on his part"
[emphasis in original]).
20
not properly recorded, see G. L. c. 183, § 29, and does not
provide constructive notice. See, e.g., Graves v. Graves, 6
Gray 391, 392-393 (1856) ("But the instrument of defeasance, not
being acknowledged, was improvidently admitted to registration,
and the record does not operate as constructive notice of the
execution of the assignment of the equity of redemption, as
against an attaching creditor of the equity; and therefore the
title of the attaching creditor, though subsequent in time,
takes precedence of the assignment"). See also McOuatt, 320
Mass. at 413-414. Similarly, a mortgage recorded with an
acknowledgment that contains a material defect is not properly
recorded and does not provide constructive notice of the
mortgage. See id. at 415 (where lack of proof that grantor in
fact acknowledged conveyance of property to his wife as his free
act and deed, deed was not properly acknowledged; although deed
with acknowledgement was recorded, no effect could be given to
it). See also Allen, 86 Mass. App. Ct. at 299-300 (although
deed was accompanied by facially correct acknowledgement, where
proper acknowledgement never actually occurred, deed not
entitled to be recorded).
As our answer to the first question indicates, where, as
here, the attorney's affidavit complies with the formal
requirements of § 5B, attests to facts that clarify the chain of
title by supplying information omitted from the originally
21
recorded acknowledgement, and references the previously recorded
mortgage, the affidavit -- not by itself but in combination with
that mortgage -- provides legally adequate constructive notice
to a bona fide purchaser or, here, a trustee in bankruptcy.
This is so because the prior recording of the mortgage has been
remedied and is deemed proper through the curative effect of the
affidavit.23
3. Conclusion. We respond to the certified questions as
follows.
An attorney's affidavit filed pursuant to G. L. c. 183,
§ 5B, attesting to the proper acknowledgment of a recorded
mortgage that has annexed to it an acknowledgment that omitted
the mortgagors' names, in certain circumstances (such as those
23
It is important to note that even though a § 5B affidavit
purportedly correcting a defect in a mortgage acknowledgement,
in combination with the original mortgage, may provide
constructive notice of the mortgage to a trustee in bankruptcy
or a bona fide purchaser more generally, the trustee or bona
fide purchaser may still challenge -- as the trustee here has
done -- the validity of the acknowledgement, and thereby the
existence of constructive notice. See McOuatt v. McOuatt, 320
Mass. 410, 413 (1946) ("The certificate of acknowledgment
furnishes formal proof of the authenticity of the execution of
the instrument when presented for recording. The certificate of
acknowledgment is of evidentiary character, and the taking of
the acknowledgment has always been regarded in this Commonwealth
as a ministerial and not as a judicial act and the recitals
contained in the certificate may be contradicted"). If the
challenge were successful, the uncorrected defect in the
original acknowledgement would signify that the mortgage was not
entitled to be recorded and, therefore, no constructive notice
of the mortgage would exist. See id. at 415; Allen v. Allen, 86
Mass. App. Ct. 295, 299-300 (2014).
22
present in this case) may cure the defect in the acknowledgment
and, in turn, effectuate a proper recording of the mortgage.
Second, in a case in which the § 5B attorney's affidavit does
cure the defect in the acknowledgment, the attorney's affidavit,
considered in combination with the originally recorded mortgage,
provides constructive notice of the existence of the mortgage to
a bona fide purchaser; in a case where the attorney's affidavit
does not cure the material defect in the acknowledgment, the
affidavit, whether alone or in combination with the mortgage,
does not provide constructive notice.
The Reporter of Decisions is directed to furnish attested
copies of this opinion to the clerk of this court. The clerk in
turn will transmit one copy, under the seal of the court, to the
clerk of the United States Court of Appeals for the First
Circuit, as the answer to the questions certified, and will also
transmit a copy to each party.