Hardesty v. Mortgage Electronic Registration Systems, Inc. (In re Boothe), 510 B.R. 154 (Bankr. S.D. Ohio 2013) -
A chapter 7 trustee successfully sought to avoid a mortgage using his "strong arm" powers on the basis that the mortgage was not properly acknowledged. Once again a mortgagee paid dearly for sloppy execution of a document.
Under applicable state law (Ohio), to be properly executed (1) a mortgage must be signed by the mortgagor, (2) the signature must be acknowledged before a notary public, (3) the notary public must certify the acknowledgment, and (4) the notary public must sign the certificate of acknowledgment. This case involves the requirement for certification by the notary public.
The mortgage was signed by the two individual debtors (David and Rebecca Sue Boothe). The acknowledgment stated:
Before me, a notary public in and for the above County, personally appeared the above named MORTGAGOR who acknowledged that (he-she-they) did sign the foregoing instrument, and that the same is (his-her-their) free act and deed.
The court noted that the pronouns were not circled or otherwise designated by the notary. The...
