COMMONWEALTH OF MASSACHUSETTS SUPREME ...

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

No. SJC-11943

BANK OF AMERICA, N.A. Defendant-Appellee

v.

~~ ~ -~--~-~ -~---~-~-~----------

DEBORA A. CASEY, CHAPTER 7 TRUSTEE OF ALVARO M. PEREIRA Plaintiff-Appellant

CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT (NO. 14-2115)

AMICUS CURIAE BRIEF OF THE ABSTRACT CLUB AND THE REAL ESTATE BAR ASSOCIATION FOR

MASSACHUSETTS, INC. IN SUPPORT OF THE DEFENDANT-APPELLEE

Lawrence P. Heffernan lheffernan®rc.com

BBO #228660 Danielle Andrews Long

dlong®rc.com BBO #646981

Robinson + Cole LLP One Boston Place, 25th Floor

Boston, MA 02108 Main (617) 557-5900 Fax (617) 557-5999

Table of Contents

Table of Authorities . iii

Statement of Interest of the Amicus Curiae 1

Statement of the Issues Presented for Review . 1

Statement of the Case . 2

Statement of the Facts 2

Summary of Argument . 2

Argument . 4

I. An affidavit executed and recorded pursuant to G.L. c. 183 1 § 5B 1 attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor 1 can be used to clarify that proper acknowledgment of that mortgage occurred/ thereby correcting the previously recorded Certificate of Acknowledgment. . 4

A. The obvious and practical purpose of a G.L. c. 183 1 § SB Affidavit is to remedy inadvertent mistakes 1 such as omission of a mortgagor 1 S name on a Certificate of Acknowledgment/ so that title can pass and litigation can be avoided. . 4

B. Precluding an Attorney 1 s Affidavit from remedying inadvertent mistakes in Certificates of Acknowledgment when the actual acknowledgment of the instrument is not contested is contrary to the purpose of acknowledgment law. . 9

II. 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, provides constructive notice of the existence of the mortgage to a bona fide purchaser, thereby preventing a Bankruptcy Trustee from avoiding the mortgage. . 14

Conclusion . 18

Certification 20

Addendum . 21

ll

Table of Authorities

Cases: Page:

Athanasiou v. Town of Westhampton, 2015 Mass. LCR LEXIS 58 (Mass. Land Ct. 2015) ....... 5

Bank of Am., N.A. v. Casey, 517 B.R. 1 ( D . Mass . 2 0 14 ) . . . . . . . . . . . 7 , 9 , 13

Bevilacqua v . Rodriguez, 460 Mass. 762 (2011) 14

Brackett v. Pitcher, 296 Mass. 295 (1936)

Citibank, N.A. v. Gonick, 86 Mass. App. Ct. 1117 (2014) (2014 Mass. App. Unpub. LEXIS 1110) . . . . . . . . . . . . .

Commonwealth Electric Co. v. Department of Public Utilities, 397 Mass. 361 (1986)

Cubellis v. Mello Constr., Inc., 4 LCR 223 (Mass. Land Ct. 1996)

Eaton v. Fannie Mae, 462 Mass. 569 (2012)

12

5

16

. 5

14

Goodman v. Telfer, 230 Mass. 157 (1918). 12

Gordon v. Gordon, 8 Mass. App. Ct. 860 (1979) 10

Mortgage Electronic Registration Systems, Inc. et al. v. Warren E. Agin, Trustee, 2009 U.S. Dist. LEXIS 106872(D. Mass. Nov. 17, 2009). 14

Queler v. Skowron, 438 Mass. 304 (2002) 11

US Bank National Association v. Ibanez, 458 Mass. 637 (2011) . . . . . 14

Warren E. Agin, Trustee v. Mortgage Electronic Registration Systems, Inc. et al. (In re Giroux), 2009 Bankr. LEXIS 3429 (Bankr. D. Mass May 21, 2009)

111

Statutes/Rules:

Mass. Gen. Laws c. 183, § 5B (2015) 4, 5

Mass. Gen. Laws c. 183, § 29 (2015) 9

Mass. Gen. Laws c. 183, § 30 (2015) 9

Mass. Gen. Laws c. 184, § 24 (2015) 6

11 u.s.c.s. § 544 (2015). . . 14, 15

Other Authorities:

Revised Executive Order No. 455 (04-04). . . . 10, 11

lV

Statement of Interest of the Amicus Curiae

The Amici Curiae submitting this brief ("Amici 11)

are the Real Estate Bar Association for Massachusetts,

Inc. ("REBA11, formerly known as the Massachusetts

Conveyancers Association) and The Abstract Club. REBA

is the largest specialty bar in the Commonwealth. It

is a non-profit corporation that has been in existence

for over 100 years and has more than 2,000 members who

practice real estate law in cities and towns

throughout the Commonwealth. The Abstract Club is a

voluntary association of experienced lawyers who

practice in the area of real estate law. It has been

in existence for over 125 years and is limited by its

bylaws to 100 members. REBA and The Abstract Club

both work toward the improvement of real estate law

and practice through educational programs. REBA also

promulgates title standards, practice standards,

ethical standards, and real estate forms.

Statement of the Issue Presented for Review

The United States Court of Appeals for the First

Circuit has certified the following questions to the

Massachusetts Supreme Judicial Court:

1. May an affidavit executed and recorded

pursuant to G.L. c 183, § 5B, attesting to the proper

1

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, § SB, 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?

Statement of the Case

The Amici rely upon, and incorporate by

reference, the Statement of the Case set forth in the

Brief of the Defendant-Appellee.

Statement of the Facts

The Amici rely upon, and incorporate by

reference, the Statement of the Facts set forth in the

Brief of the Defendant-Appellee.

Summary of Argument

An Attorney's Affidavit can be properly used to

correct a previously recorded defective Certificate of

2

Acknowledgment. The obvious and practical purpose of

this Affidavit is to remedy inadvertent mistakes such

as the one presented so that title can pass and

litigation can be avoided. Requiring a lender to go

through the process of re-recording a mortgage, filing

a lawsuit, or waiting ten years to remedy such a

mistake (and when a borrower can go bankrupt at any

time) is illogical and puts the lender at a tremendous

risk when the error easily be remedied by the

recording.of an Attorney's Affidavit. (Pages 4-9.)

Not allowing an Attorney's Affidavit to correct a

defective Certificate of Acknowledgment under the

circumstances presented is contrary to the purpose of

acknowledgment law. The error at issue arose with the

form of the Certificate of Acknowledgment, not the

actual acknowledgment of the mortgage by the

mortgagor. It was the intent of the mortgagor to

grant a mortgage. The purpose of an acknowledgment to

a deed or mortgage is to protect the integrity of the

document being signed and recorded. Such a purpose

would not be compromised by allowing an Attorney's

Affidavit to correct a Certificate of Acknowledgement

by simply clarifying that the actual acknowledgment

properly took place. (Pages 9-14.)

3

A properly recorded Attorney's Affidavit that

contains sufficient information to put a bona fide

purchaser on notice that a mortgage exists can legally

provide constructive notice, and does so in this

instance. Such a finding is not contrary to existing

law. The Agin case, infra, is distinguishable from

this case both legally and factually as no curative

measures were taken in Agin to correct the defective

Certificate of Acknowledgment. To hold that an

Attorney's Affidavit in the instant case cannot

provide constructive notice would be inconsistent with

Massachusetts law and would negate the purpose and

practicality behind the Attorney's Affidavit. (Pages

14-18.)

Argument

I. 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, can be used to clarify that proper acknowledgment of that mortgage occurred, thereby correcting the previously recorded Certificate of Acknowledgment.

A. The obvious and practical purpose of a G.L. c. 183, § 5B Affidavit is to remedy inadvertent mistakes, such as omission of a mortgagor's name on a Certificate of Acknowledgment, so that title can pass and litigation can be avoided.

G.L. c. 183, § 5B states as follows:

4

§ SB. Certain Affidavits Relating to Land Titles; Certificate of Relevancy; Recording.

Subject to section 15 of chapter 184, an affidavit made by a person claiming to have knowledge of 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.

G.L. ch. 183, § SB (emphasis added) The "Attorney's

Affidavit" as it is so known has been a useful tool in

Massachusetts real estate practice since its statutory

enactment. See e.g. Citibank, N.A. v. Gonick, 86

Mass. App. Ct. 1117 (2014) (2014 Mass. App. Unpub.

LEXIS 1110, at *3-4) (using Attorney's Affidavit to

correct wrong date and entity name in several

pertinent foreclosure documents); Athanasiou v. Town

of Westhampton, 2015 Mass. LCR LEXIS 58 (Mass. Land

Ct. 2015) (using Attorney's Affidavit to confirm the

allegations in a release deed and attach and record

certain probate documents to support said

allegations); Cubellis v. Mello Constr., Inc., 4 LCR

223, 225 (Mass. Land Ct. 1996) (acknowledging that an

Attorney's Affidavit could have been used to provide

5

notice of an attachment when owner's name was

misspelled on attachment and attachment therefore was

not in chain of title) .

The Attorney's Affidavit is essential and

beneficial to the Massachusetts' land recording

system. It is time-consuming, expensive, and simply

not practical for a lender and borrower to go through

a re-recording process when a situation such as the

one at bar arises. If re-recording is not or cannot

be done, particularly in situations where re-recording

may affect lien priority, then without the use of an

Attorneys' Affidavit, there is simply no other method

to correct an inadvertent mistake in a Certificate of

Acknowledgment except litigation or waiting ten years.

See G.L. c. 184, § 24 (establishing a statute of

repose for challenging certain title instruments) .

In light of the obvious impracticalities of the

only two options under G.L. c. 184, § 24 for

clarifying title to land, imposition of severe

limitations on the use of an Attorneys' Affidavit with

respect to Certificates of Acknowledgment will have

dire consequences for the conveyancing and lending

industries, particularly when title has been called

6

into question by confusion or inadvertent mistake. 1

Case law is admittedly sparse in interpreting the

purpose and scope of Attorney's Affidavits, and non

existent with respect to acknowledgments, but it is

clear that the purpose of the Attorney's Affidavit is

to clarify and explain title so that title can pass

without the need to undertake the time, burden, and

expense of re-recording or litigating every unclear or

confusing chain of title.

The instant case calls into question whether an

Attorney's Affidavit can be used to correct a

defective Certificate of Acknowledgment affixed to a

mortgage where the mortgagor's name was omitted in

1 The Amici agree with the lower Court's analysis of

the purpose of G.L. c. 184, § 24. Bank of Am., N.A.

v. Casey, 517 B.R. 1, 4 (D. Mass. 2014). The District

Court stated that "[t]he trustee misunderstands the

purpose of § 24 to be the prescription of a method for

curing defects in instruments of title. It is rather

properly understood as a statute of repose. As its

primary clause states, whatever the defect, after ten

years it has no further significance, and the document

is to be regarded as free of it." Id.

7

- ----------------------------------

order to clarify title to property so that the Trustee

cannot avoid the mortgage. It is unrefuted that the

mortgagor acknowledged the mortgage. There are no

allegations of fraud or improper conduct by the

parties to the mortgage transaction. The dispute lies

with the form of the Certificate of the Acknowledgment

itself, not with the actual acknowledgment by the

mortgagor. The Attorney's Affidavit in this case was

not used to change title or alter the status of title

after the fact. The mortgagor, Pereira, granted a

mortgage to the bank. He signed the mortgage and he

acknowledged the mortgage as his free act and deed.

An Attorney's Affidavit was the only proper and

practical mechanism available to correct a defective

Certificate of Acknowledgment in this case. Requiring

a lender to go through the process of re-recording a

mortgage (which would require cooperation by the

borrower and could affect the mortgage's priority),

filing a lawsuit, or waiting ten years when these

circumstances arise (and when a borrower can go

bankrupt at any time) is illogical and puts the lender

at a tremendous risk. As pointed out by the District

Court below, if this Court determines that an

Attorney's Affidavit was not effective to correct the

8

----------------------------------------------

subject defect, then, even if this defect were

discovered fifteen minutes after the mortgagor left

the Registry of Deeds, there would be no means to fix

the error short of going through the process of re-

recording the mortgage, litigating, or waiting it out

for ten years. Casey, 517 B.R. at *5.

B. Precluding an Attorney's Affidavit from remedying inadvertent mistakes in Certificates of Acknowledgment when the actual acknowledgment of the instrument is not contested is contrary to the purpose of acknowledgment law.

G.L. c. 183, § 29 states that "[n]o deed shall be

recorded unless a certificate of its acknowledgment 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." Additionally, G.L. c. 183, § 30

states as follows:

[t]he acknowledgment of a deed or other written instrument required to be acknowledged shall be by one or more of the grantors or by the attorney executing it. The officer before whom the acknowledgment is made shall endorse upon or annex to the instrument a certificate thereof. Such acknowledgment may be made: (a) [i]f within the commonwealth, before a justice of the peace or notary public,,,"

9

The purpose of an acknowledgment to a deed or mortgage

is to protect the integrity of the document being

signed and recorded. The acknowledgement "furnishes

formal proof of the authenticity of the execution of

the instrument when presented for recording." Gordon

v. Gordon, 8 Mass. App. Ct. 860, 862 (1979).

Former Massachusetts Governor Mitt Romney issued

an Executive Order setting forth the standards of

conduct for Notaries Public ("Executive Order") to

protect the integrity of acknowledged documents. This

Executive Order took effect on May 15, 2004. Revised

Executive Order No. 455 (04-04), a copy of which is

included in the addendum to this brief. The Executive

Order defines "Acknowledgement" as follows:

"Acknowledgment" shall mean a notarial act in which an individual, at a single time and place:

(a) appears in person before the notary public and presents a document;

{b) is identified by the notary public through satisfactory evidence of identity; and

(c) indicates to the notary public that the signature on the document was voluntarily affixed by the individual for the purposes stated within the document and, if applicable, that the individual had authority to sign in a particular representative capacity.

10

Revised Executive Order No. 455 (04-04).

These standards were met in the instant case.

There is no dispute that the mortgagor, Periera,

appeared in person before the notary and presented the

mortgage. There is no dispute that the mortgagor was

properly identified by the notary. There is no

dispute that the mortgagor indicated to the notary

that his signature was voluntary. The issue at hand

arises with the form of the Certificate of

Acknowledgment, not the actual acknowledgment of the

mortgage by the mortgagor.

Pereira intended to grant a mortgage to the bank

and the bank intended to accept the mortgage.

Precluding the use of an Attorney's Affidavit to

correct a simple error in a Certificate of

Acknowledgment would elevate form over substance.

Such a rigid conclusion does not serve the purpose of

acknowledgement law, and is not consistent with

Massachusetts law and practice and with the intent of

the parties to the subject mortgage. See e.g., Queler

v. Skowron, 438 Mass. 304, 311 (2002) (recognizing

that "[d]eeds should be construed as to give effect to

the intent of the parties, unless inconsistent with

some law or repugnant to the terms of the grant ... The

11

intent of the parties is gleaned from the words used,

interpreted in the light of the material circumstances

and pertinent facts known to them at the time the deed

was executed"); Goodman v. Telfer, 230 Mass. 157, 159

(1918) (emphasizing that a conveyance of land should

be construed so as to vest the title in accordance

with the intention of the parties if such

interpretation is not contrary to established

principals of law); Brackett v. Pitcher, 296 Mass.

295, 297 (1936) (stating that when construing a deed,

it is the court's duty "to ascertain the intent of the

parties from the language used in light of the

surrounding circumstances").

Based upon the uncontroverted evidence contained

in the record, it is obvious that the mortgagor

executed the mortgage as his free act and deed and

that such execution was duly acknowledged by a notary

public. It was the intent of mortgagor to grant a

mortgage on the Property to the bank. As articulated

by the District Court below, it would serve "no useful

purpose" for this Court to take a "hyper-technical

approach" and not allow the use of an Attorney's

Affidavit to correct an inadvertent mistake in the

physical Certificate of Acknowledgment to clarify

12

title to the Property when there is no dispute that

the mortgage itself was properly acknowledged by the

mortgagor. Bank of Am., N.A., 517 B.R. at *4.

Indeed, purpose of requiring acknowledgment of

a mortgage is to ensure the accuracy and integrity of

the registry of deeds." Id. Such a purpose would not

be compromised by allowing an Attorney's Affidavit to

correct a Certificate of Acknowledgement by simply

clarifying that the actual acknowledgment properly

took place. On the other hand, failing to allow such

a correction would put lenders at a tremendous risk

and discredit the accuracy of the registry of deeds,

as shown by this action. Such a dilemma can easily be

avoided by the use of an Attorney's Affidavit.

Massachusetts law supports a finding that an

Attorney's Affidavit, recorded pursuant to G.L. c.

183, § 5B can be used to correct a Certificate of

Acknowledgment affixed to a mortgage that omits the

name of the mortgagor in order to clarify title to

property. To hold otherwise would undeniably result

in placing an inordinate amount of risk and liability

on the lending, and consequently conveyancing and

title insurance, industries, adding further disruption

and unreliability to a land recording system that has

13

been subjected to upheaval and scrutiny over the last

several years. See e.g. US Bank National Association

v. Ibanez, 458 Mass. 637 (2011); Bevilacqua v .

Rodriguez, 460 Mass. 762 (2011); Eaton v. Fannie

Mae, 462 Mass. 569 (2012).

II. An affidavit executed and recorded pursuant to G.L. c. 183, § SB, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, provides constructive notice of the existence of the mortgage to a bona fide purchaser, thereby preventing a Bankruptcy Trustee from avoiding the mortgage.

Plaintiff-Appellant Trustee relies primarily upon

a decision by the United States District Court

affirming a Massachusetts Bankruptcy Court decision

that held that an improperly acknowledged mortgage

under Massachusetts state law does not provide

constructive notice to subsequent purchasers or

creditors, thereby making the mortgage subject to

avoidance by the Bankruptcy Trustee under 11 U.S.C.S.

§ 544. See Mortgage Electronic Registration Systems,

Inc. et al. v. Warren E. Agin, Trustee, 2009 U.S.

Dist. LEXIS 106872(D. Mass. Nov. 17, 2009) (affirming

Warren E. Agin, Trustee v. Mortgage Electronic

Registration Systems, Inc. et al. (In re Giroux), 2009

Bankr. LEXIS 3429 (Bankr. D. Mass May 21, 2009)).

14

Relying upon the Agin decisions, the Trustee argues

that, because the Attorney's Affidavit cannot correct

a defective acknowledgement, the mortgage remains

invalid because it is not properly recorded, and there

is no constructive notice of the mortgage regardless

of the recording of an Attorney's Affidavit after-the

fact.

In Agin, the debtor granted a mortgage on the

property to MERS. The mortgage was signed by the

debtor and witnessed. The mortgage contained an

acknowledgment by a notary public on the same page as

the signature of the debtor and the witness and

immediately below those signatures. The

acknowledgment was signed and dated by the notary

public. The notary public, however, did not fill in

the name of specific individual signing the mortgage

in the acknowledgment. The debtor filed for

bankruptcy and the Trustee sought to avoid the

mortgage under 11 U.S.C.S. § 544. Agin, Trustee, 2009

u.s. Dist. LEXIS 106872, at *1-3. The District Court

upheld the Bankruptcy's decision that allowed the

Trustee to avoid the mortgage. Id. at *6. In

reaching its decision, the Bankruptcy Court focused on

the issue of notice. The Bankruptcy Court reasoned

15

that a mortgage improperly acknowledged cannot provide

constructive notice to a bona fide purchaser;

therefore, the Trustee, who stood in the shoes of a

bona fide purchaser, could avoid the mortgage pursuant

to his strong arm powers. Agin, Trustee, 2009 Bankr.

LEXIS 3429, at *32-34, 37-88.

This Court is not bound in its interpretation of

Massachusetts law, "by decisions of other tribunals,

except by decisions of the Supreme Court of the United

States relying on the Federal Constitution."

Commonwealth Electric Co. v. Department of Public

Utilities, 397 Mass. 361, 373 (1986). Nonetheless,

the Agin case is distinguishable from the instant case

both legally and factually. One of the key components

in the Bankruptcy Court's decision in Agin was that

the trustee did not have constructive notice. An

Attorney's Affidavit was not recorded in Agin. No

attempt was made whatsoever to correct the defective

certificate of acknowledgement in Agin at any point in

time. Notably, in affirming the Bankruptcy Court's

decision in Agin, the District Court specifically

pointed out that there "[was] no evidence that the

material defect in the acknowledgment at issue in this

16

case was ever cured before or after recording." Agin,

2009 U.S. Dist. LEXIS 106872, at *6.

There is no doubt that an Attorney's Affidavit is

a curative remedy. The purpose of the Attorney's

Affidavit in this action was to cure the defect in the

Certificate of Acknowledgement, thereby clarifying

title to the Property. For the reasons explained

supra, the Attorney's Affidavit can cure the error,

and the mortgage should thereby be considered

recordable, providing constructive notice to a bona

fide purchaser. Even if this Court does not want to

go that far in its reasoning, at the very least, the

Attorney's Affidavit alone provides constructive

notice of the existence of a mortgage. As long as the

Attorney's Affidavit contains sufficient information

to put a bona fide purchaser on notice that a mortgage

exists on the Property, which it does in this case,

any argument that the Trustee may avoid the mortgage

on the grounds that it does not have constructive

knowledge of that mortgage should fail.

A determination that a proper Attorney's

Affidavit referencing the subject mortgage, at the

bare minimum, can provide constructive knowledge of

the existence of a mortgage that is on record, even if

17

that mortgage's Certificate of Acknowledgement may be

defective, is consistent with existing Massachusetts

law which allows the Attorney's Affidavit to be

utilized substantively under a broad array of

circumstances. 2 To hold otherwise would defeat the

purpose and practicality behind the Attorney's

Affidavit, and would undoubtedly open the door to

further limits on this useful and practical curative

remedy.

Conclusion

For the foregoing reasons, the Amici urge that

this Court hold that an affidavit executed and

recorded pursuant to G.L. c 183, § SB, attesting to

the proper acknowledgment of a recorded mortgage

containing a Certificate of Acknowledgment that omits

the name of the mortgagor, is a proper mechanism to

correct a material defect in the Certificate of

Acknowledgment of that mortgage. The Amici further

urge this Court to hold that an affidavit executed and

2 The Brief of the Appellee Bank of America, N.A.

provides numerous examples of where an Attorney's

Affidavit has been used for a wide range of

substantive purposes. Appellee Brief, p. 19.

18

recorded pursuant to G.L. c 183 1 § 5B 1 attesting to

the proper acknowledgment of a recorded mortgage

containing a Certificate of Acknowledgment that omits

the name of the mortgagor/ provides constructive

notice of the existence of the mortgage to a bona fide

purchaser/ both independently and in combination with

the mortgage.

Date:

Respectfully submitted/ Amicus Curiae/ THE ABSTRACT CLUB AND THE REAL ESTATE BAR ASSOCIATION FOR MASSACHUSETTS, INC.,

Lawrence P. Heffernan 1 BBO #228660 (lhef ernan®rc.com)

One Boston Place Boston 1 MA 02108 (617) 557-5900

19

BBO #646981

Certification

I, Danielle Andrews Long, on behalf of the Amici, hereby certify that the AMICUS CURIAE BRIEF OF THE ABSTRACT CLUB AND THE REAL ESTATE BAR ASSOCIATION FOR MASSACHUSETTS, INC. IN SUPPORT OF THE DEFENDANTAPPELLEE complies with the Rules of Court that pertain to the filing of briefs, including, but not limited to, the Rules noted in R.A.P. 16(k).

Amicus Curiae, THE ABSTRACT CLUB AND THE REAL ESTATE BAR ASSOCIATION FOR MASSACHUSETTS, INC.,

ielle Andrews Lon (dlong®rc.com) Robinson & Cole LLP

One Boston Place Boston, MA 02108 (617) 557-5900

20

0 #228660

#646981

Addendum

21

2/2/2016 Get a Document - by Citation- ALM GL ch. 183, § 58

ALM GL ch. 183, § 58

Annotated Laws of Massachusetts Copyright© 2015 Matthew Bender & Company, Inc.,

a member of the LexisNexis Group All rights reserved.

*** Current through Act 127 of the 2015 Legislative Session ***

PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE I TITLE TO REAL PROPERTY

Chapter 183 Alienation of Land

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

ALM GL ch. 183, § SB (2015)

§ 58. Certain Affidavits Relating to Land Titles; Certificate of Relevancy; Recording.

Subject to section 15 of chapter 184, an 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.

HISTORY: 1966, 574 ; 2002, 496, § 1.

ADD 001

https://www.lexis.com/researctVretrieve?_m=e02ffb9fc231c51f80745b279b2a6270&csvc=lt&cform=byCitation&_fmtstr=FULL&docnum=1&_startdoc=1&wchp. .. 1/1

2/212016 Get a Document- by Citation- ALM GL ch.183, §29

ALM GL ch. 183, § 29






GO TO MASSACHUSEITS CODE ARCHIVE DIRECTORY

ALM GL ch. 183, § 29 (2015)

§ 29. Acknowledgment of Deed --Requirement Before Recording; Exception.

No deed shall be recorded unless a certificate of its acknowledgment 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; but this section shall not apply to conveyances from the United States.

ADD 002

HISTORY: CL 32, § 4; 1697, 21, § 1 ; 1783, 37, § 4 ; RS 1836, 59, § 22; GS 1860, 89, § 28; 1869, 167 ; PS 1882, 120, § 5; RL 1902, 127, § 7.

https://www.lexis.com/research/retrieve?_m=6fcc4dfcec667b46d8bb67a6346a5670&csvc=lt&cform=byCitation&_fmtstr=FULL&docnum=1&_startdoc=1&wch... 1/1

2/2/2016 Get a Document- by Citation- ALM Glch.183, § 30

ALM GL ch. 183, § 30







ALM GL ch. 183, § 30 (2015)

§ 30. Acknowledgment of Deed -- How Made.

ADD 003

The acknowledgment of a deed or other written instrument required to be acknowledged shall be by one or more of the grantors or by the attorney executing it. The officer before whom the acknowledgment is made shall endorse upon or annex to the instrument a certificate thereof. Such acknowledgment may be made--

(a) If within the commonwealth, before a justice of the peace or notary public.

(b) If without the commonwealth, In any state, territory, district or dependency of the United States, before a justice of the peace, notary public, magistrate or commissioner appointed therefor by the governor of this commonwealth, or, if a certificate of authority in the form prescribed by section thirty-three is attached thereto, before any other officer therein authorized to take acknowledgments of deeds.

(c) If without the United States or any dependency thereof, before a justice of the peace, notary, magistrate or commissioner as above provided, or before an ambassador, minister, consul, vice consul, charge d'affaires or consular officer or agent of the United States accredited to the country where the acknowledgment is made; if made before an ambassador or other official of the United States, it shall be certified by him under his seal of office.

HISTORY: 1783, 37, § 4 ; 1829, 125, § 1 ; RS 1836, 59, §§ 12, 13, 22; 1856, 253, § 1 ; GS 1860, 89, §§ 18, 19, 28; 1867, 250, § 1 ; 1875, 142 ; PS 1882, 120, § 6; 1894, 253, §§ 3, 4 1 6 ; 1895, 460 ; RL 1902, 127 1 §§ 8, 19, 22; 1902, 289 ; 1931, 394, § 186.

https://www .lexis.com/researchlretrieve? _m=fd3c2ff7058b77b031294b1a125153d3&csvc=lt&cform=byCitation&_fmtstr= FULL&docnum= 1 &_startdoc= 1&wchp... 1/1

2/2/2016 Get a Document- by Citation- ALM GL ch. 184, § 24

ALM GL ch. 184, § 24





Chapter 184 General Provisions Relative to Real Property


ALM GL ch. 184, § 24 (2015)

ADD 004

§ 24. Protection of Certain Titles Against Certain Defects in Deeds After Ten Years Following Recording.

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, or in any manner affecting or purporting to affect his title thereto, and the instrument, whether or not entitled to record, is recorded, and indexed, in the registry of deeds for the district wherein such land is situated, 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 seals, corporate or individual, to the validity of acknowledgment, to certificate of acknowledgment, witnesses, attestation, proof of execution, or time of execution, to recitals of consideration, residence, address, or date, to the authority of a person signing for a corporation who purports to be the president or treasurer or a principal officer of the corporation, 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.

HISTORY: 1956, 348, § 1 ; 1964, 311, § 1.

https://www.lexis.com/researchlretrieve?_m=190d16acd1d82242a1a28fbc1b2edfc0&csvc=lt&cform=byCitation&_fmtstr=FULL&docnum=1&_startdoc=1&wch... 1/1

2/2/2016 Get a Document- by Citation-11 USCS § 544

11 uses§ 544

UNITED STATES CODE SERVICE Copyright© 2015 Matthew Bender & Company, Inc.

a member of the LexisNexis Group (TM) All rights reserved.

*** Current through PL 114-114, approved 12/28/15, with gaps of PL's 114-94, 114-95, and 114-113 ***

TITLE 11. BANKRUPTCY CHAPTER 5. CREDITORS, THE DEBTOR, AND THE ESTATE

SUBCHAPTER III. THE ESTATE

Go to the United States Code Service Archive Directory

11 uses§ 544

§ 544. Trustee as lien creditor and as successor to certain creditors and purchasers

(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 may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by-

(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicie)l lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists;

(2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or

(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable Jaw 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.

(b) (1) Except as provided in paragraph (2), the trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title [11 uses § 502) or that is not allowable only under section 502(e) of this title [11 uses § S02(e)J.

{2) Paragraph {1) shall not apply to a transfer of a charitable contribution (as that term is defined in section 548(d)(3) [ 11 uses § 548(d)(3)]) that is not covered under section 548(a) (l)(B) [ 11 uses § 548(a)(1)(B)], by reason of section 548(a)(2) [ 11 uses § 548(a)(2)]. Any claim by any person to recover a transferred contribution described in the preceding sentence under Federal or State law in a Federal or State court shall be preempted by the commencement of the case.

+History:

(Nov. 6, 1978, P.L. 95-598, Title I, § 101, 92 Stat. 2596; July 10, 1984, P.L. 98-353, Title III, Subtitle H, § 459, 98 Stat. 377; June 19, 1998, P.L. 105-183, § 3(b), 112 Stat. 518.)

ADD 005

https:/lwww.lexis.com/researchlretrieve?_m=ee73e8675370dcfd2f53b434da3ea3d2&_fmtstr=FULL&docnum=1&wchp=dGLzVzB-zSkAW&_md5=fc2db7561b1... 1/1

By His Excellency

MITT ROMNEY GOVERNOR

REVISED EXECUTIVE ORDER NO. 455 (04-04)

STANDARDS OF CONDUCT FOR NOTARIES PUBLIC

WHEREAS, notaries public promote, serve, and protect the public interest by acting as independent witnesses in a variety of situations;

WHEREAS, notaries public currently lack specific guidance as to the nature and scope of their duties;

WHEREAS, it is important to foster ethical conduct among notaries public;

NOW, THEREFORE, I, Mitt Romney, Governor of the Commonwealth, by virtue of the authority vested in me as Supreme Executive Magistrate, Part 2, c. 2, §I, Art. I, do hereby order as follows:

Section 1: Applicability.

(a) This executive order shall apply to all notaries public, including notaries public who received their commission before the effective date of this executive order. These standards will be considered by the Governor in the selection, appointment, reappointment and removal of notaries public from their commissions.

(b) All notaries public shall comply with this Executive Order by May 15, 2004.

(c) Nothing in this Executive Order supercedes the provisions of any court rule, including court forms, Massachusetts General Law, including but not limited to, chapter 183, section 42 or the forms set forth in the appendix thereto, or chapter 192, section 2, any Federal statute, or any regulation adopted pursuant to a Massachusetts or Federal statute.

(d) The provisions of this Executive Order shall not apply to the Massachusetts National Guard or other Reserve Component Commands when conducting mobilization exercises and Soldier Readiness Processing.

ADD 006

Section 2: Definitions.

As used in this executive order and set forth in bold for ease of reference, the following words shall have the following meanings:

"Acknowledgment" shall mean a notarial act in which an individual, at a single time and place:


(b) is identified by the notary public through satisfactory evidence of identity; and

(c) indicates to the notary public that the signature on the document was voluntarily affixed by the individual for the purposes stated within the document and, if applicable, that the individual had authority to sign in a particular representative capacity.

"Affirmation" shall mean a notarial act, or part thereof, that is legally equivalent to an oath in which an individual, at a single time and place:

(a) appears in person before the notary public;


(c) makes a vow of truthfulness or fidelity under the pains and penalties of perjury without invoking a deity.

"Copy certification" shall mean a notarial act in which a notary public:

(a) is presented with a document;

(b) copies or supervises the copying of the document using a photographic or electronic copying process;

(c) compares the document to the copy; and

(d) determines that the copy is accurate and complete.

"Credible witness" means an honest, reliable, and impartial person who personally knows an individual appearing before a notary and takes an oath or affirmation from the notary to vouch for that individual's identity.

2

ADD 007

-------- --------------------------------

"Journal of notarial acts" or "journal" shall mean a permanently bound book that creates and preserves a chronological record of notarizations performed by a notary public.

"Jurat" means a notarial act in which an individual, at a single time and place:


(b) is identified by the notary public through satisfactory evidence of identity;

(c) signs the document in the presence of the notary public; and

(d) takes an oath or affirmation before the notary vouching for the truthfulness or accuracy of the signed document.

"Notarial act" and "notarization" shall mean any act that a notary public is empowered to perform under this executive order.

"Notary public" or "notary" shall mean any person commissioned to perform official acts pursuant to Article IV of the Articles of Amendment of the Massachusetts Constitution.

"Oath" shall mean a notarial act, or part thereof, which is legally equivalent to an affirmation, and in which an individual, at a single time and place:

(a) appears in person before the notary;

(b) is identified by the notary through satisfactory evidence of identity; and

(c) makes a vow of truthfulness or fidelity under the pains and penalties of perjury by invoking a deity.

"Official misconduct" shall mean:

(a) a notary's performance of any act prohibited, or failure to perform any act mandated, by this executive order, or by any other law, in connection with a notarial act; or

(b) a notary's performance of an official act in a manner found to be grossly negligent or against the public interest.

"Personal knowledge of identity" shall mean familiarity with an individual resulting from interactions with that individual over a period of time sufficient to ensure beyond doubt that the individual has the identity claimed.

3

ADD 008

"Principal" shall mean a person whose signature is notarized, or a person taking an oath or affirmation from the notary.

"Regular place of work or business" shall mean a place where one spends most of one's working or business hours.

"Satisfactory evidence of identity" shall mean identification of an individual based on at least one current document issued by a Federal or State government agency bearing the photographic image of the individual's face and signature; or on the oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary and who personally knows the individual; or identification of an individual based on the notary public's personal knowledge of the identity of the principal. For a person who is not a United States citizen, "satisfactory evidence of identity" shall mean identification of an individual based on a valid passport, or another government-issued document evidencing the individual's nationality or residence, that bears a photographic image of the individual's face and signature. For a person who is a Vermont or New Jersey resident, until January I, 2008, "satisfactory evidence of identity" may includeidentification of an individual based on a valid driver's license that does not contain a photograph that is presented along with other documentary proof of identity that ensures beyond question that the person has the identity claimed.

"Signature witnessing" shall mean a notarial act in which an individual, at a single time and place:



(c) signs the document in the presence of the notary public.

Section 3: Qualifications of Applicants.

(a) A person qualified for a notary public commission shall:

(I) be at least I8 years of age; and

(2) reside legally or conduct business on a regular basis within in Massachusetts.

(b) In the Governor's discretion, an application may be denied based on:

4

ADD 009

(1) submission of an official application containing a material misstatement or omission of fact;

(2) the applicant's felony conviction or misdemeanor conviction that resulted in a prison sentence;

(3) the applicant's conviction of a misdemeanor with probation or a fine, or conviction for drunk driving;

( 4) the applicant's admission of facts sufficient to warrant a finding of guilt of any crime;

(5) a finding or admission of liability against the applicant in a civil lawsuit based on the applicant's deceit;

(6) revocation, suspension, restriction, or denial of a notarial commission or professional license by this or any other state; or

(7) any other reasons that, within the Governor's discretion, would make the applicant unsuitable to hold the commission as a notary public.

Section 4: Duration of Commission.

As set forth in Article IV of the Articles of Amendment to the Constitution of the Commonwealth, a person commissioned as a notary public may perform notarial acts in any part of the commonwealth for a term of seven years, unless the commission is earlier revoked or the notary resigns.

Section 5: Scope and Description of Duties.

(a) A notary public may perform the following notarial acts:

(1) acknowledgments;

(2) oaths and affirmations;

(3) jurats;

(4) signature witnessings;

(5) copy certifications;

(6) issuance of summonses for witnesses as set forth in section l of chapter 233;

(7) issuance of subpoenas; and

5

ADD 010

(8) witness the opening of a bank safe, vault, or box as set forth in section 32 of chapter 167.

(b) In completing a notarial act, a notary shall sign his or her name exactly as it appears on the notary's commission.

(c) A notary shall keep an official notarial seal or stamp that is the exclusive property of the notary, which may not be used by any other person.

( 1) A notary public shall obtain a new seal or stamp if the notary public renews his or her commission, receives a new commission, or changes his or her name.

(2) The notarial seal or stamp shall include: the notary public's name exactly as indicated on the commission; the words "notary public," "Commonwealth of Massachusetts" or "Massachusetts", and "my commission expires on [commission expiration date]" or "commission expires on [commission expiration date]" or "commission expires [commission expiration date]"; and a facsimile of the great seal of the Commonwealth of Massachusetts.

(3) Each new notarial seal that uses ink shall, after the date of this Executive Order, use black ink.

( 4) A notary public may satisfy the requirements of this section by using a stamp and a seal that together include all of the information required by this section.

(d) A notary shall take the acknowledgment of the signature or mark of persons acknowledging for themselves or in any representative capacity by using substantially the following form:

On this __ day of , 20_, before me, the undersigned notary public, personally appeared (name of document signer), proved to me through satisfactory evidence of identification, which were ----------• to be the person whose name is signed on the · preceding or attached document, and acknowledged to me that (he) (she) signed it voluntarily for its stated purpose.

(as partner for -----• a partnership) (as for , a corporation) (as attorney in fact for , the principal) (as for , (a) (the)-------

--------(official signature and seal of notary)

(e) A notary shall use a jurat certificate in substantially the following form in notarizing a signature or mark on an affidavit or other sworn or affirmed written declaration:

6

ADD 011

On this __ day of , 20_, before me, the undersigned notary public, personally appeared (name of document signer), proved to me through satisfactory evidence of identification, which were ----------• to be the person who signed the preceding or attached document in my presence, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of (his) (her) knowledge and belief.

-------(official signature and seal of notary)

(f) A notary shall witness a signature in substantially the following form in notarizing a signature or mark to confirm that it was affixed in the notary's presence without administration of an oath or affirmation:

On this __ day of , 20_, before me, the undersigned notary public, personally appeared (name of document signer), proved to me through satisfactory evidence of identification, which were ----------• to be the person whose name is signed on the preceding or attached document in my presence.

--------(official signature and seal of notary)

(g) A notary shall certify a copy by using substantially the following form:

On this __ day of , 20_, I certify that the (preceding) (following) (attached) document is a true, exact, complete, and unaltered copy made by me of --------(description of the document), presented to me by

________ (official signature and seal of notary)

(h) A notary public may certify the affixation of a signature by mark on a document presented for notarization if:

( 1) the principal affixes the mark in the presence of the notary public and of 2 witnesses unaffected by the document; ·

(2) both witnesses sign their own names beside the mark;

(3) the notary writes below the mark: "Mark affixed by (name of signer by mark) in the presence of (names and addresses of witnesses) and undersigned notary pursuant to Executive Order No. 455; and

(4) the notary public notarizes the signature by mark through an acknowledgment, jurat, or signature witnessing.

7

ADD 012

(i) The notary public may sign the name of a principal who is physically unable to sign or make a mark on a document presented for notarization if:

( 1) the principal directs the notary to do so in the presence of 2 witnesses who are unaffected by the document;

(2) the principal does not have a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction requiring the notarial act;

(3) in the notary public's judgment, the principal is acting of his or her own free will;

(4) the notary public signs the principal's name in the presence of the principal and the witnesses;

(5) both witnesses sign their own names beside the signature;

(6) the notary public writes below the signature: "Signature affixed by notary public in the presence of (names and addresses of principal and 2 witnesses)"; and

(7) the notary public notarizes the signature through an acknowledgment, jurat, or signature witnessing.

(j) This section does not require a notary public to use the forms set forth above if the form of an acknowledgment, jurat, signature witnessing, or copy certification is required or allowed by the provisions of any court rule or court forms; a Massachusetts General Law, including but not limited to, chapter 183, section 42 or the forms set forth in the appendix thereto, or chapter 192, section 2; any Federal statute; or any regulation adopted pursuant to any such Massachusetts or Federal statute.

(k) This section does not require a notary public to use the forms set forth above if the form of acknowledgment, jurat, signature witnessing, or copy certification if a document contains an alternative form from another State if the document is to be filed or recorded in, or governed by the laws of, that other State.

(I) This section does not require a notary public to use the forms set forth above if the form of acknowledgment, jurat, signature witnessing, or copy certification appears on a printed form that contains an express prohibition against altering that form.

Section 6: Prohibited Acts.

(a) A notary public shall not perform a notarial act if:

(1) the principal is not in the notary's presence at the time of notarization;

8

ADD 013

(2) the principal is not identified by the notary through satisfactory evidence of identity;

(3) the principal has a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring the notarial act;

( 4) in the notary public's judgment, the principal is not acting of his or her own free will;

(5) the notary public is a party to or is named in the document that is to be notarized, except that a notary public may notarize a document if the notary public is named in the document for the sole purpose of receiving notices relating to the document and except that a notary public who is licensed as an attorney in the Commonwealth of Massachusetts and is named as an executor, trustee or in any fiduciary capacity in a document or employees of such attorney may perform notarial acts concerning such document;

(6) the notary public will receive as a direct result of the notarial act any commission, fee, advantage, right, title, interest, cash, property, or other consideration exceeding in value the fees set forth in section 41 of chapter 262 of the General Laws or has any financial interest in the subject matter of the document. For example, this section shall not preclude a notary public who is licensed as an attorney in the Commonwealth of Massachusetts or any employee of such attorney from notarial acts concerning any document where the attorney receives a legal fee for professional legal services rendered in connection with such document. ·

(7) the notary public is a spouse, domestic partner, parent, guardian, child, or sibling of the principal, including in-law, step, or half relatives, except where such persons witness a will or other legal document prepared by the notary public who is an attorney licensed in the Commonwealth of Massachusetts.

(b) A notary public shall not refuse to perform a notarial act solely based on the principal's race, advanced age, gender, sexual orientation, religion, national origin, health, disability, or status as a non-client or non-customer of the notary public or the notary public's employer.

(c) A notary public shall not influence a person either to enter into or avoid a transaction involving a notarial act by the notary public, except that the notary public may provide advise relating to that transaction if section 9(b) applies.

(d) A notary public shall not execute a certificate containing information known or believed by the notary public to be false.

9

ADD 014

(e) A notary public shall not affix an official signature or seal on a notarial certificate that is incomplete.

(f) A notary public shall not provide or send a signed or sealed notarial certificate to another person with the understanding that it will be completed or attached to a document outside of the notary public's presence.

(1) In connection with a commercial, non-consumer transaction, a notary public may deliver a signed, sealed, or signed and sealed notarial certificate to an attorney with the understanding that: (i) the attorney will attach the certificate to a document outside of the notary's presence; (ii) the attorney will hold such notarial certificate in escrow; and (iii) the attorney informs the notary public that the attorney will obtain the approval of the principal, or principals, involved before attaching the certificate to the document.

(g) A notary public shall not notarize a signature on a blank or incomplete document, except as provided in 6(f)(l) above

(h) A notary public shall not perform any official act with the intent to deceive or defraud.

(i) A notary public shall not claim to have powers, qualifications, rights, or privileges that the office of notary public does not provide, including the power to counsel on immigration matters.

(j) A notary public shall not use the term "notario" or "notario publico" or any equivalent non-English term in any business card, advertisement, notice, or sign.

Section 7: Limitations of Discretion.

A notary shall perform any notarial act described in this executive order for any person requesting such an act who tenders the fee set forth in section 41 of chapter 262 of the General Laws unless:

(a) the notary public knows or has good reason to believe that the notarial act or the associated transaction is unlawful;

(b) the principal has a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring the notarial act;

(c) the act is prohibited by this executive order or other applicable law; or

10

ADD 015

(d) the number of notarial acts requested practicably precludes completion of all acts at once, in which case the notary public shall arrange for later completion of the remaining acts.

Section 8: Underlying Document.

(a) A notary public has neither the duty nor the authority to investigate, ascertain, or attest to the lawfulness, propriety, accuracy, or truthfulness of a document or transaction involving a notarial act.

(b) Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification, or otherwise to comply with the requirements set forth in this Executive Order shall not have any effect on the validity of the underlying document.

(c) Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification set forth in this Executive Order should not be the basis of refusal to accept the document for filing, recordation, registration, or acceptance by a third party.

Section 9: Prohibition Against the Unauthorized Practice of Law.

(a) A non-attorney notary public shall not assist a non-attorney in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act, rendering legal advice, or otherwise engage in the practice of law.

(b) This section does not preclude a notary public who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field.

(c) A notary public who is not an attorney licensed to practice law in Massachusetts, or who is not directly supervised by an attorney, shall not conduct a real estate closing and shall not act as a real estate closing agent. A notary public who is employed by a lender may notarize a document in conjunction with the closing of his or her employer's real estate loans.

Section 10: Advertising Disclaimer Required.

A non-attorney notary public who advertises notarial services in a language other than English shall include in the advertisement, notice, letterhead, or sign the following, prominently displayed in the same language the statement: "I am not an attorney and have no authority to give advice on immigration or other legal matters."

11

ADD 016

Section 11: Official Journal.

(a) A notary shall keep, maintain, protect, and provide for lawful inspection a chronological official journal of notarial acts that is a permanently bound book with numbered pages, except as otherwise provided in this section.

(b) A notary public shall keep no more than one active journal at the same time.

(c) For every notarial act except for the issuance of summons or subpoenas, or the administration of an oral oath, the notary public shall record in the journal at the time of the notarization the following:

(I) the date and time of the notarial act, proceeding, or transaction;

(2) the type of notarial act;

(3) the type, title, or a description of the document, transaction, or proceeding. If multiple documents are signed by the same principal in the course of a transaction or during a single date (i.e. real estate closings, mortgage discharges, state laboratory drug analysis certificates, etc.), a single journal entry shall be sufficient;

( 4) the signature, printed name, and address of each principal and witness;

(a) If a principal or witness tells the notary that he or she is a battered person, the notary shall make a note in the journal that the person's address shall not to be subject to public inspection.

(5) description of the satisfactory evidence of identity of each person including:

(a) a notation of the type of identification document, the issuing agency, its serial or identification number, and its date of issuance or expiration;

or

(i) If the identification number on the document is the person's Social Security number, instead of including the number, write in the words "Social Security number" or the acronym "SSN";

(b) a notation if the notary identified the individual on the oath or affirmation of a credible witness or based on the notary's personal knowledge of the individual;

(6) the fee, if any, charged for the notarial act; and

12

ADD 017

------------------------------------

(7) the address where the notarization was performed.

(d) A notary public shall not record a Social Security or credit card number in the journal.

(e) A notary public shall record in the journal the circumstances for not completing a notarial act.

(f) A journal shall be recommended as the best practice, but not required, for a notary public who is an attorney licensed to practice law in the Commonwealth of Massachusetts or employed by such attorney. This Executive Order shaH not be construed in any way to impair or infringe in any way on the attorney-client privilege or the attorney work product doctrine.

Section 12: Inspection of the Official Journal.

(a) The journal may be examined without restriction by a Jaw enforcement officer in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the Governor's Office. Nothing in this section shall prevent a notary public from seeking appropriate judicial protective orders.

(b) A notary public shall safeguard the journal and all other notarial records and surrender or destroy them only by rule of law, by court order, or at the direction of the Governor's Office.

(c) When not in use, the journal shall be kept in a secure area under the exclusive control of the notary public, and shall not be used by any other notary nor surrendered to an employer upon termination of employment.

Section 13: Duties at the End of the Commission.

When a notary commission expires, is resigned, or is revoked, the notary shall:

(a) as soon as reasonably practicable, destroy or deface all notary seals and stamps so that they may not be used; and

(b) retain the notarial journal and records for seven years after the date of expiration, resignation, or revocation.

Section 14: Change of Name or Address.

Within I 0 days after the change of a notary public's residence, business, mailing address, or name, the notary shall send to the Office of the Secretary of State a signed notice of the change, giving both the old and new information.

13

ADD 018

Section 15: Revocation of Commission.

A notary public's commission may be revoked for official misconduct as defined by this Executive Order, or for other good cause, as determined by the Governor with the consent of the Governor's Council as set forth in Article XXXVII of the Articles of Amendments to the Massachusetts Constitution.

Given at the Executive Chamber in Boston this fourteenth day of May in the year our Lord two thousand four, and of the Independence of the United states of America two hundred and twenty seven.

MIIT ROMNEY, GOVERNOR

SECRETARY OF THE COMMONWEALTH WILLIAM FRANCIS GALVIN

GOD SAVE THE COMMONWEALTH OF MASSACHUSETTS

14

ADD 019

ADD 020

2/2/2016 Get a Document- by Citation- 86 Mass. App. Ct. 1117

1 oo:12:411 Switch Client I Preferences I Help I Sign Out

LCJ\IOj

Search Get a Document

FOCUSTM Terms

Get a Document

Service: Get by LEXSEE® Citation: 86 Mass. App. Ct. 1117

,f'select for FOCUS'M or Delivery

Shepard's®

leu! Advanced ...

86 Mass. App. Ct. 1117; 18 N.E.3d 1137; 2014 Mass. App. Unpub. LEXIS 1110, *

CmsANK, N.A., trustee, 1 vs. RrcHARD S. GoNJCK & another. 2

History Alerts

View Tutorial

1 Successor trustee to U.S. Bank, National Association as trustee under the Pooling and Servicing Agreement dated as of July 1, 2007 MASTR Adjustable Rate Mortgages Trust 2007-HF2 Mortgage

· Pass-Through Certificates, Series 2007-HF2.

2 Susan P. Gonick.

13-P-1560

APPEALS COURT OF MASSACHUSETTS

86 Mass. App. Ct. 1117; 18 N.E.3d 1137; 2014 Mass. App. Unpub. LEXIS 1110

October 30, 2014, Entered

NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL'S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.

PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

DISPOSITION: [*1] Judgment affirmed.

CORE TERMS: deed, foreclosure, foreclosing, incorrect, notice, summary judgment, scrivener's, mortgagee, misnomer, recorded, chain, entity, summary process, statutory power, foreclosure sale, public notice, personal knowledge, clarified, mortgage, invalid, cured

JUDGES: Grasso.,., Kantrowitz.,. & Meade..,, JJ.

OPINION

https://www .lexis.comlresearchlretrieve?cc=&pushme= 1&tmpFBSel=all&totaldocs= &taggedDocs=&toggleValue=&num DocsC hked=O&prefFBSei=O&delform... 1/3

ADD 021

2/2/2016 Get a Doctment- by Citation- 86 Mass. App. Ct. 1117

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal, the defendants Richard and Susan Gonick challenge the summary judgment in favor of plaintiff Citibank, N.A., as successor trustee (Citibank), and the denial of their motion to dismiss the complaint. 3 The Gonicks claim that Citibank failed to strictly comply with the statutory provisions governing the foreclosure sale of their former home. Following the sale, the Gonicks refused to vacate the property, and Citibank brought a summary process action. we affirm.

FOOTNOTES

3 Because the judge considered material outside the pleadings, the judge appears to have treated the Gonicks' motion to dismiss as a motion for summary judgment. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 824 (1974)i 0'8/enes v. Zoning Bd. of Appeals, 397 Mass. 555, 557, 492 N.E.2d 354 (1986). The Gonicks moved to dismiss, in part, on grounds that Citibank's incorrect name constituted a misnomer of a party under Mass.R.Civ.P. 12(b)(8), 365 Mass. 824 (1974). However, rule 12{b)(8) permits dismissal of a claim when a party is misnamed on a claim. Citibank's name appears correctly on its summary process complaint, therefore the Gonicks' contention under [*2] that rule was properly rejected.

The Gonicks base their appeal on what they call a misnomer in Citibank's name as trustee of a mortgage securities trust. Contained in the description of that trust is a certain pooling and services agreement dated July 1, 2007. Several pertinent documents, however, including the foreclosure deed and public notice, show this agreement as dated May 1, 2007, which is incorrect. Citibank concedes the May date is incorrect, but it claims that this amounts to a mere scrivener's error, which the foreclosing attorney appropriately cured by simultaneously recording an affidavit under G. L. c. 183, § 5B, as amended by St. 2002, c. 496, § 1. 4

FOOTNOTES

4 In pertinent part, § SB states:

"an 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."

Citibank obtained rights to the mortgage by assignment; that assignment reflects the correct [*3] July, 2007, date. However, the public notice and the foreclosure deed each showed the

incorrect May, 2007. The Gonicks claim that Citibank with the May date and Citibank with the July date are two different legal entities. 5 It follows, the Gonicks contend, that the Citibank which foreclosed (the "May" Citibank) lacked legal rights do so because it was not the entity (the "July" Citibank) which possessed the right to foreclose. We disagree.

FOOTNOTES

s The Gonicks also claim that the omission of the word "trustee" and a reference to the prior trustee, is of similar effect to the title of Citibank. We have not overlooked this claim, but we find nothing that requires discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).

https://www .lexis.comlresearctvretrieve?cc=&pushme= 1&tmpFBSel=all&totaldocs=&taggedDocs=&toggleValue=&num DocsChked=O&prefFBSei=O&delform... 2/3

ADD 022

212/2016 Get a Document- by Citation- 86 Mass. App. Ct. 1117

It is of course true that foreclosures in Massachusetts require "strict compliance" with the statutory power of sale under G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, and that when a foreclosing mortgagee fails to so comply, the resulting sale is "wholly void." U.S. Bank Nat/. Assn. v. Ibanez, 458 Mass. 637, 646-646, 941 N.E.2d 40 (2011). See Moore v. Dick, 187 Mass. 207, 211-212, 72 N.E. 967 (1905). But it takes·more than a minor scrivener's error to invalidate an otherwise valid foreclosure [*4] sale. The party seeking to sell under a statutory power of sale has the obligation to "state what property he proposes to sell, and who proposes to make the sale, and who advertises it for sale." Bottomly v. Kabachnick, 13 Mass. App. Ct. 480, 484, 434 N.E.2d 667 (1982). See generally Roche v. Farnsworth, 106 Mass. 509, 513 (1871). Minor errors in the foreclosing mortgagee's name are typically not fatal. See ibid. (insufficient notice where identity of foreclosing mortgagee completely missing).

The deviation in Citibank's name was a minor scrivener's error which does not render the sale or conveyance of the property invalid. 6 Compare SunTrust Mtg. Inc. v. Forsberg, 21 LCR 585, 2013 Mass. LCR LEXIS 159, 2013 WL 5783020, at *6 (Mass. Land Ct. 2013). One mistaken word in the lengthy title of Citibank as trustee cannot be compared to cases where the foreclosing bank's name was entirely omitted. See Roche, supra; Bottomly, supra. Consequently, the notice and foreclosure deed were valid. We need not resolve whether an affidavit filed under G. L. c. 183, § 5B, may cure a deed which is invalid, because the deed here is valid. The affidavit here merely clarified the chain of title as is the purpose of that statute. See Ford v. Lehman Capital, 2012 U.S. Dist. LEXIS 53551, at *15 (D. Mass. 2012) [*5] (section SB affidavit from attorney with personal knowledge of assignment cured a gap in chain of title where assignment was not recorded).

FOOTNOTES

6 Even where Citibank's name appeared with the wrong month, all other details of its name were sufficiently identified. Tellingly, the Gonicks do not allege that the error caused them any reasonable doubt as to the entity conducting foreclosure proceedings against them.

While there are undoubtedly circumstances where a misnomer could cause a party to be unaware or uncertain as to the identity of the foreclosing party, this is not such a case. Rather, we think the appearance of Citibank's name, even with the "May" misdesignation, was well within the "degree of clearness" required to comply with the notice requirements of G. L. c. 183, § 14. Roche, supra. See Bottom!y, supra. Despite the error, Citibank strictly complied with all requirements of legal notice, and the foreclosure deed (clarified by a simultaneously recorded c. 183, § SB, affidavit) was valid. Citibank was thus entitled to summary judgment and possession of the subject property.

Judgment affirmed.

By the Court (Grasso .... , Kantrowitz. & Meade .... , JJ.),

Entered: October 30, 2014.

Service: Get by LEXSEE® Citation: 86 Mass. App. Ct. 1117

View: Full Date(fime: Tuesday, February 2, 2016- 12:08 PM EST

.tfiM. 0 LexisNeXiS" About LexisNexis 1 Privacy Policy 1 Terms & Conditions 1 t:i:))ltiJ!1ltiJ y f":rnup™ W Copyright© 2016 LexisNexis, a division of Reed Elsevier

https://www .lexis.com/research/retrieve?cc=&pushme= 1&tmpFBSel=all&totaldocs=&taggedDocs=&toggleValue= &num DocsChked=O&prefFBSei=O&delform... 313

COMMONWEALTH OF MASSACHUSETTS SUPREME ...

Documents

Transcript of COMMONWEALTH OF MASSACHUSETTS SUPREME ...