William Drown v. National City Bank , 433 F. App'x 367 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0504n.06
No. 10-3009
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jul 20, 2011
SHIRLEY A. INGERSOLL ) LEONARD GREEN, Clerk
)
Debtor )
)
---------------------------------------------------------------- )
) ON APPEAL FROM THE
WILLIAM TODD DROWN, ) BANKRUPTCY APPELLATE
) PANEL
Plaintiff-Appellant, )
)
v. ) OPINION
)
NATIONAL CITY BANK, )
)
Defendant-Appellee. )
BEFORE: ROGERS and McKEAGUE, Circuit Judges; DONALD, District Judge.*
Per Curiam. In this case, the Trustee seeks to avoid the Debtor’s mortgage, arguing that the
certificate of acknowledgment was invalid because it stated that the Debtor and her husband
personally appeared and signed the mortgage when, in fact, only the Debtor appeared and signed for
herself and, by virtue of a valid power of attorney, her husband. The bankruptcy court and
Bankruptcy Appellate Panel found that the certificate of acknowledgment was valid. We affirm.
*
The Honorable Bernice B. Donald, United States District Judge for the Western District of
Tennessee, sitting by designation.
No. 10-3009
In re: Ingersoll
The facts of this case are undisputed and we briefly summarize them here. On February 4,
2005, Dallas M. Ingersoll (“Mr. Ingersoll”) executed a valid general power of attorney appointing
his wife, Shirley A. Ingersoll (“Mrs. Ingersoll”) as his attorney-in-fact for all business, financial and
legal matters. That same day, Mrs. Ingersoll executed an open-end mortgage on real property that
was owned jointly by the Ingersolls with the right of survivorship. Mrs. Ingersoll signed for herself
and, next to her husband’s name, she signed: “Dallas M. Ingersoll Husband by Shirley A. Ingersoll
P.O.A.” Directly following these signatures was a notarized certificate of acknowledgment, which
included the following:
BEFORE ME a Notary Public . . . personally appeared the above named Shirley A.
Ingersoll and Dallas M. Ingersoll who acknowledge that they did sign the
foregoing instrument, and that the same is their free act and deed.
Mr. Ingersoll did not actually personally appear before the notary. Shortly thereafter, Mr. Ingersoll
passed away. On October 31, 2007, Mrs. Ingersoll filed a voluntary Chapter 7 bankruptcy petition.
William Todd Drown (“Trustee”), the Trustee, commenced an adversary proceeding pursuant to 11
U.S.C. § 544(a)(3)—which provides that a trustee has the same rights that a bona fide purchaser for
value would enjoy under state law—seeking to avoid the mortgage, which is held by Defendant
National City Bank (“National City”).
Ohio law provides that a defective instrument does not provide notice and is not binding on
a subsequent bona fide purchaser. See Citizens Nat’l Bank in Zanesville v. Denison, 133 N.E.2d 329,
333 (Ohio 1956); Ohio Rev. Code § 5301.25(A). For a mortgage to be properly executed under Ohio
law, (1) the mortgage must be signed by the mortgagor; (2) the signing must be acknowledged before
a notary public; and (3) the notary must subscribe his or her name to the certificate of
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No. 10-3009
In re: Ingersoll
acknowledgment. See Ohio Rev. Code § 5301.01(A). Ohio law imposes two additional
requirements in the case of a mortgage made by virtue of a power of attorney. First the mortgage
“made by virtue of a power of attorney, must contain the name of the . . . mortgagor . . .” Ohio Rev.
Code § 1337.02. Second, prior to the recording of the mortgage, there must be a power of attorney
recorded in the office of the county recorder of the county in which the real property is located. See
Ohio Rev. Code § 1337.04. If the statutory requirements are met, a mortgage “made by virtue of a
power of attorney . . . shall . . . mortgage . . . the interest of such . . . mortgagor . . . as fully as if such
mortgage . . . were executed by such . . . mortgagor . . . in person.” Ohio Rev. Code § 1337.02.
The Trustee contends that the mortgage was rendered defective as to Mr. Ingersoll’s one-half
interest by virtue of the certificate of acknowledgment, which he alleges was invalid for at least one
of two reasons: (1) the acknowledgment did not disclose that Mrs. Ingersoll appeared as power of
attorney for Mr. Ingersoll, or (2) the certificate of acknowledgment’s statement that Mr. Ingersoll
personally appeared before the notary was false. The bankruptcy court disagreed, in a thorough
opinion, finding that the certificate of acknowledgment was valid under Ohio law. First, the court
concluded that because Mrs. Ingersoll undisputedly had complete authority under Ohio law to
mortgage Mr. Ingersoll’s one-half interest in the property, “her signature was the only one that
needed to be acknowledged, and her acknowledgment was the only one that needed to be certified.”
Drown v. National City Bank (In re Ingersoll), 403 B.R. 505, 510–11 (Bankr. S.D. Ohio 2009).
Next, the bankruptcy court consulted Ohio statutory and case law and found no requirement that the
certificate of acknowledgment disclose that an individual acknowledged as a power of attorney.
Moreover, the court recognized that Ohio courts have applied a doctrine of substantial compliance
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No. 10-3009
In re: Ingersoll
to find mortgages valid and enforceable when the acknowledgment certificate contains errors. Id.
at 511– 13 (noting that under this doctrine one Ohio court held that a mortgage was valid when the
certificate of acknowledgment stated that the mortgagors signed the mortgage when, in fact, the
mortgage was signed by someone else pursuant to a power of attorney). Indeed, the bankruptcy court
found that, because there was no legal requirement that Mr. Ingersoll appear or sign himself, the fact
that the acknowledgment suggested that he had personally appeared was surplusage that does not
affect the validity of the acknowledgment. Id. at 512. Further, the bankruptcy court distinguished
this case from cases where the acknowledgment was deemed defective because statutorily-required
information was omitted, and from a case in another jurisdiction with substantially similar facts, on
the basis that Ohio courts have taken a contrary view to the importance of inconsistencies between
the acknowledgment and the mortgage. Id. at 512–13. The Bankruptcy Appellate Panel affirmed
on the basis of the bankruptcy court opinion. Drown v. National City Bank (In re Ingersoll), 420
B.R. 414 (B.A.P. 6th Cir. 2009).
National City did not submit a brief in this case. We have conducted de novo review of the
record, the Trustee’s arguments and the relevant law. After doing so, we find ourselves in agreement
with the bankruptcy court’s well-reasoned application of Ohio law, and we think that any additional
analysis would be unnecessarily duplicative. Accordingly, we AFFIRM the decision of the court
below.
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