IN RE ANDREW A. DEMORE; MAUREEN A. DEMORE, Debtors,
DONALD LASSMAN, CHAPTER 7 TRUSTEE OF THE BANKRUPTCY ESTATES OF ANDREW A. DEMORE AND MAUREEN A. DEMORE, Defendant, Appellee. HSBC BANK USA, N.A., Plaintiff, Appellee,
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
G. DeGiacomo, with whom Taruna Garg and Murtha Cullina LLP
was on brief, for appellant.
A. Manekas, with whom Bernkopf Goodman LLP was on brief, for
Torruella, Lipez, and Barron, Circuit Judges.
BARRON, Circuit Judge.
case concerns an appeal from a consolidated adversary action
in bankruptcy. The action was brought by Donald Lassman, the
appellant, who is the trustee for the estates of two
bankruptcy petitioners, Andrew and Maureen DeMore. In
bringing the adversary action that this appeal concerns,
Lassman sought, pursuant to 11 U.S.C. § 544(a)(3), to
"avoid" a mortgage on a parcel of land in
Massachusetts that the DeMores had purportedly granted to the
predecessor in interest to HSBC Bank, USA, N.A.
("HSBC"), which is the appellee.
the Bankruptcy Court granted summary judgment to Lassman. The
Bankruptcy Court did so on the ground that what is known
under Massachusetts law as the certificate of acknowledgement
for the mortgage at issue is "materially defective"
because the certificate failed to make clear that the
DeMores, as grantors of that mortgage, executed that mortgage
as their free act and deed. But, when HSBC appealed that
ruling to the District Court, the District Court reversed on
the ground that the certificate of acknowledgement is not
materially defective because it did make clear that the
DeMores had executed the mortgage as their free act and deed.
Because we agree with the District Court, we affirm its order
reversing summary judgment for Lassman.
underlying dispute concerns a mortgage purportedly granted by
the DeMores to HSBC Mortgage Corporation ("HSBC
Mortgage"), the predecessor in interest to HSBC, on a
parcel of property that is owned by the DeMores. We start by
recounting the uncontested facts that are critical to the
resolution of this dispute.
1994, the DeMores acquired a parcel of land in North
Attleboro, Massachusetts. This property is what is known in
Massachusetts as "registered land, " which is a
type of land for which the Massachusetts Land Court maintains
a certificate of title, and to which chapter 185 of the
Massachusetts General Laws applies.
April 2004, the DeMores each executed a power of attorney to
John G. Molloy. Those powers of attorney authorized Molloy to
grant a mortgage on the property to HSBC Mortgage.
that month, Molloy granted a promissory note and mortgage on
that property to HSBC Mortgage on behalf of the DeMores.
Several days later, the note and the mortgage were registered
on the certificate of title for the property in the Northern
Bristol County Registry of Deeds of the Massachusetts Land
to the mortgage document was a certificate of acknowledgment.
A certificate of acknowledgment is a notarized document that
is signed by an officer entitled to take acknowledgments
(often a notary public) and that attests that "the
grantor appeared before the officer making the certificate
and made such acknowledgment." Bank of Am.,
N.A. v. Casey, 52 N.E.3d 1030, 1035
(Mass. 2016) (quoting McOuatt v.
McOuatt, 69 N.E.2d 806, 809 (Mass. 1946)). The
certificate of acknowledgment in this case reads as follows:
On this 27th day of April, 2004, before me, the
undersigned notary public[, ] personally appeared Andrew
DeMore and Maureen DeMore by their attorney-in-fact, John G.
Molloy[, ] under Power of Attorney recorded herewith
proved to me through satisfactory evidence of identification,
which were drivers licenses to be the person whose
name is signed on the proceeding attached document, and
acknowledged to me that he/she signed it voluntarily and for
its stated purpose.
/s/ Melissa L. Henderson Melissa L. Henderson, Notary Public
My Commission Expires 8/27/10
requirement to record a mortgage with a certificate of
acknowledgment comes from chapter 183, section 29 of the
Massachusetts General Laws. That section states, in relevant
part, that "[n]o deed shall be recorded unless a
certificate of its acknowledgment . . . is endorsed upon or
annexed to it . . . ." Mass. Gen. Laws ch. 183, §
29. It is clear that, ...