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Bank of America, N.A. v. Casey (Lawyers Weekly No. 10-083-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11943   BANK OF AMERICA, N.A.  vs.  DEBORA A. CASEY, trustee.[1]        February 11, 2016. – June 16, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Mortgage, Validity.  Real Property, Mortgage.       Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit.     Adam C. Ponte for the defendant. Mark B. Johnson for the plaintiff. Lawrence P. Heffernan & Danielle Andrews Long, for The Abstract Club & another, amici curiae, submitted a brief.     BOTSFORD, J.  We consider two questions certified to this court by the United States Court of Appeals for the First Circuit (First Circuit).[2]  The questions, which arise in connection with a bankruptcy proceeding, concern the power and effect of an affidavit of an attorney executed pursuant to G. L. c. 183, § 5B, in relation to a mortgage containing a defective certificate of acknowledgment.  The two questions ask: “1.  May 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, 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, § 5B, 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?”   For the reasons that follow, we answer both questions yes, in certain circumstances.[3] 1.  Background.[4]  By quitclaim deed dated September 29, 1999, Alvaro and Lisa Pereira (collectively, Pereiras) acquired title to the property located at 107 Colonial Drive in New Bedford (property).  On October 1, 1999, the deed was recorded with the Southern Bristol County registry of deeds (registry).  On December 27, 2005, the Pereiras refinanced the property, granting to Bank of America, N.A. (bank), a mortgage in the principal amount of $ 240,000.  The Pereiras individually initialed the bottom of each page of the mortgage agreement except the signature page, on which the full signature of each appears.  Attorney Raymond J. Quintin also signed […]

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Posted by Massachusetts Legal Resources - June 16, 2016 at 4:41 pm

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