McClatchey v. GMAC Mortgage, LLC (In re Lacy), 483 B.R. 126 (Bankr. S.D. Ohio 2012) -
Lacy is one more in a long list of cases where an Ohio mortgage was attacked based on defects in execution. Although the Ohio statute requires only "substantial compliance" with the statutory execution requirements, mortgages are sometimes avoided based on seemingly trivial technical defects.
The debtor, Mr. Lacy, had executed a valid power of attorney appointing Ms. Iacuzzo as his attorney-in-fact to execute documents in connection with the acquisition and financing of a property. Using the power of attorney, Ms. Iacuzzo executed a mortgage on behalf of Mr. Lacy.
The first page of the mortgage included the following:
"Borrower" is CHARLES L. LACY , UNMARRIED
The signature block included the following:
- BORROWER - CHARLES L. LACY, BY, GINA MARIE IACUZZO HIS ATTORNEY IN FACT - DATE -
The acknowledgment stated that it was acknowledged before the notary by:
CHARLES L. LACY , U [The court noted that this appeared to be copied from the first page, where "U" was the first letter of "Unmarried."]
Since it was Ms. Iacuzzo, not Mr. Lacy, that appeared before the notary, the acknowledgement was incorrect.
The Ohio statute requires that (1) the mortgagor must sign the mortgage, (2) the signature must be acknowledged before a notary public or other authorized public official, and (3) the notary must certify the acknowledgment. With respect to certification, the notary is supposed to certify that the person acknowledging (a)...
