Agin v. South Point, Inc.

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UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
~~~~~~~~~~~~~~~~~~~~~~~~~~~
In re
DEBRA A. KURAK, Chapter 7
Debtor Case No. 08-13724-JNF
~~~~~~~~~~~~~~~~~~~~~~~~~~~
WARREN E. AGIN, CHAPTER 7
TRUSTEE,
Plaintiff
v. Adv. P. No. 08-1404
SOUTH POINT, INC.,
Defendant
~~~~~~~~~~~~~~~~~~~~~~~~~~~
MEMORANDUM
I. INTRODUCTION
The matters before the Court are the Motion for Summary Judgment filed by the
Plaintiff, the Chapter 7 Trustee (the “Trustee”) of the bankruptcy estate of Debra A. Kurak
(the “Debtor”), and the Defendant’s Opposition to the Motion. In his Motion, the Trustee
seeks a summary judgment with respect to his two-count complaint through which he
seeks a determination that the Defendant does not have a valid mortgage lien against the
Debtor’s interest in real property and that his strong-arm powers under 11 U.S.C. § 544 (a)
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preclude the Defendant from seeking reformation of the mortgage. The Court heard the
matters on June 2, 2009 and took the Motion for Summary Judgment under advisement.
The material facts necessary to determine the Motion and Opposition are not in
dispute. The issue presented is whether the alteration of the mortgage after its execution
by the Debtor divests the Defendant, South Point, Inc. (the “Defendant” or “South Point”)
of any mortgage interest in real property she jointly owns with a non-debtor. Resolution
of the issue requires a determination of the effect of a version of a mortgage which differs
from the one which was recorded by the Defendant’s predecessor and upon which the
Defendant relied in seeking relief from the automatic stay.
II. FACTS
On May 21, 2008, Debra A. Kurak (the “Debtor”) filed a voluntary Chapter 7
petition, together with her Schedules, Statement of Financial Affairs and other required
documents. Warren E. Agin is the duly appointed Chapter 7 Trustee.
On her petition, the Debtor listed her address as 37-39 Falmouth Street, Attleboro,
Massachusetts (the “property”). On Schedule A-Real Property, she listed an ownership
interest in that property, while noting that it was “subject to a lien in the amount of
$361,250.00 [for] which the Debtor has no contractual liability.” She stated that the
property was worth $330,000. On Schedule D-Creditors Holding Secured Claims, she listed
no claims secured by her interest in the property.
On May 30, 2008, before the first scheduled meeting of creditors, South Point, Inc.,
(“South Point”), “as serviced by Wilshire Credit Corporation (“Wilshire”)” [sic], filed a
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Despite the characterization as a “Certified True Copy,” this version of the1
mortgage was not the version that was ultimately recorded. The notation appears as
follows on the top of the mortgage:
“CERTIFIED TRUE COPY”
_________________________
Signature
Certified Copy of the Original
Sent for Recording
__________________________
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Motion for Relief from the Automatic Stay seeking to enforce its rights under a note and
mortgage encumbering the property. In its motion, South Point represented that, on
September 22, 2006, Manuel Lopes (“Lopes”) executed a note in favor of First Franklin, a
Division of National City Bank (“First Franklin”), in the original amount of $361,250 and
that the Debtor and Lopes simultaneously executed and delivered a mortgage to Mortgage
Electronic Registration Systems, Inc. (“MERS”), as nominee of First Franklin. According
to South Point, First Franklin recorded the mortgage in the Bristol County Registry of
Deeds, and it is the assignee of the note and mortgage. South Point further represented
that it is owed $389,719.72.
South Point attached to its Motion for Relief from the Automatic Stay a copy of a
mortgage which contained the notation “Certified True Copy.” That mortgage identifies1
Lopes, and Lopes only, as the “Borrower.” The term “Borrower” is defined on the first
page of the mortgage as “the mortgagor under this Security Instrument.” The Debtor
signed the twelfth page of the mortgage above both the word “Witness,” and the word
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“Borrower” crossed out with five typed x’s. The Trustee attached a copy of this version of
the mortgage to his Affidavit in Support of his Motion for Summary Judgment as Exhibit
C.
South Point subsequently produced a recorded mortgage in support of its Motion
for Relief from the Automatic Stay. That mortgage identifies both Lopes and the Debtor
as “Borrower” as follows: “‘Borrower’ is MANUEL LOPES & Debra Kurak.” On the
signature page, the mortgage contains both their signatures over the word “Borrower,”
defined in the same manner as set forth above (i.e., “the mortgagor under this Security
Instrument”). Their signatures appear under the following language: “BY SIGNING
BELOW, Borrower accepts and agrees to the terms and covenants in pages 1 through 12
of this Security Instrument and in any Rider Executed by Borrower and recorded with it.”
J. Daniel Lindley, Esq., as the attorney representing First Franklin, conducted the
closing on September 22, 2006 at which Lopes executed the note to First Franklin. The
closing occurred at the residence co-owned by Lopes and the Debtor. Both Lopes and the
Debtor signed the last page of the mortgage, which contained Lindley’s notarization,
although the record reflects that the Debtor’s capacity as signatory was as “Witness” in one
version and as “Borrower” in the recorded version of the mortgage.
Lindley, at his 2004 examination, testified that he took the mortgage to his office and
made copies for distribution. He stated that he made, or caused to be made, three copies
of the mortgage: one for Lopes (Exhibit D to the Trustee’s Motion for Summary Judgment),
one for his file (Exhibit F to the Trustee’s Motion for Summary Judgment), and one for First
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Handwritten insertions appear in italic.2
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Franklin. A copy of a mortgage produced by Lopes’s counsel and given to the Trustee,
which the Trustee attached to his Motion (Exhibit D), identifies Lopes as the only Borrower
on page one and does not contain a signature page. The first page of that mortgage is the
same as the mortgage that South Point initially attached to its Motion for Relief from the
Automatic Stay which contains the notation Certified True Copy at the top (Exhibit C to
the Trustee’s Affidavit in Support of His Motion for Summary Judgment). The version of
the mortgage attached as Exhibit F to the Trustee’s Motion is the same version upon which
South Point ultimately relied in seeking relief from the automatic stay and upon which it
relies in opposing the Trustee’s Motion, namely the recorded mortgage which identifies
both Lopes and the Debtor as Borrowers and contains both their signatures as Borrowers.
There is no question that the Debtor signed a mortgage and that Lindley notarized
her signature. Additionally, she and Lopes initialed each page of the mortgage, and
Lindley’s notarization appears as follows:
Commonwealth of Massachusetts, Bristol County ss:
On this 22nd day of September, 2006 , before me personally appeared
MANUEL LOPES and Debra Kurak
to me known to be the person (or persons) described in and who executed
the foregoing instrument and acknowledged that
he/she/they executed the same as his/her/their free act and deed.
/s/ J. Daniel Lindley
J. Daniel Lindley Notary Public
My commission expires 06/14/132
In addition to the definition of Borrower on page 1 of the mortgage, page 3 of the
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mortgage contains the following language:
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan,
and all renewals, extensions and modifications of the Note; and (ii) the
performance of Borrower’s covenants and agreements under this Security
Instrument and the Note. For this purpose, Borrower does hereby mortgage,
grant and convey to MERS (solely as nominee for Lender and Lender’s
successors and assigns) and to the successors and assigns of MERS, with
power of sale, the following described property . . . .
(emphasis supplied) (Exhibit F to the Trustee’s Motion for Summary Judgment and Exhibit
1 to the Affidavit of Richard C. Demerle, Esq. attached as Exhibit A to South Point’s
Memorandum in Support of Defendant’s Opposition to Plaintiff’s Motion for Summary
Judgment).
Lindley’s deposition testimony explains why multiple versions of the mortgage
exist. He testified as follows:
. . . Apparently - - I spoke to Lindsay [Lindley’s assistant], who has no
memory of this closing at all, but apparently when we faxed the executed
mortgage to the lender, the lender called back and asked that Debra Kurak’s
name be included on the front page of the mortgage. And I believe - - and
Lindsay thinks she may have done that. And that’s where that “and Debra
Kurak” came from on the front page.
He added:
. . . I noticed on page 12 someone had x’d out the word “borrower” and
typed in the word “witness.” That doesn’t appear on my documents or the
Registry of Deeds’ documents, so I can only figure that someone in the
lender’s office did that.
Now this exhibit doesn’t show the ampersand Debra Kurak on the first page
that the others do, so I’m - - it’s my opinion that this is a copy of the
mortgage as my paralegal faxed it to the lender. And, based on that the
lender instructed her to add the ampersand Debra Kurak.
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Later, someone seeing that Debra Kurak’s name was not on there struck out
the word “borrower” and put in the word “witness,” but she was - - I know
from having done closings that even though only one owner may be the
borrower, all owners have to sign the mortgage. Otherwise, nobody can
foreclose on it.
And that’s why I had Debra sign and initial all of the documents having to
do with the mortgage. She was signing in the capacity as a - - mortgagor, not
as a borrower, because she wasn’t on the loan but as a mortgagor.
Because the Debtor initialed every page of the mortgage and signed it as Borrower,
the Court accepts Lindley’s testimony that he or someone in his law office subsequently
added the Debtor’s name to the first page of the mortgage (“& Debra Kurak”) after he or
his employees had sent copies to both Lopes and First Franklin. The Court has insufficient
information to determine when or why the word “Borrower” was crossed out and replaced
with the word “Witness” on the copy with the notation “Certified True Copy.”
III. DISCUSSION
A. Summary Judgment Standard
The United States Court of Appeals for the First Circuit has stated:
It is apodictic that summary judgment should be bestowed only when no
genuine issue of material fact exists and the movant has successfully
demonstrated an entitlement to judgment as a matter of law. See Fed.R.Civ.P.
56(c). As to issues on which the movant, at trial, would be obliged to carry
the burden of proof, he initially must proffer materials of evidentiary or
quasi-evidentiary quality-say, affidavits or depositions-that support his
position. When the summary judgment record is complete, all reasonable
inferences from the facts must be drawn in the manner most favorable to the
nonmovant. This means, of course, that summary judgment is inappropriate
if inferences are necessary for the judgment and those inferences are not
mandated by the record. . . .
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.1994) (citations omitted,
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footnote omitted). In view of that standard, the Court finds that there are no genuine
issues of material fact and the Motion for Summary Judgment is ripe for resolution. The
question presented in this case requires a determination of a legal issue only, namely the
effect of the omission of the Debtor’s name on the first page of the mortgage at the time she
executed it where the “Borrower” is identified only as Manuel Lopes, but where the
Debtor initialed every page of the mortgage, signed it as Borrower, and Lindley notarized
her signature as her free act and deed. The question also can be posed in another way: Was
the alteration of the mortgage after execution to add the Debtor’s name a material
alteration in view of the Debtor’s signature as Borrower?
B. Positions of the Parties
The Trustee argues that because First Franklin’s attorney altered the mortgage by
adding her name after the Debtor executed it, South Point does not have a valid mortgage
against the Debtor’s interest in the property. He cites Malaguti v. Rosen, 262 Mass. 555
(1928), for the proposition that a mortgage deed is a form of contract. Extrapolating, he
contends that as with any contract, the terms of the mortgage must be determined by
looking at the “four corners” of the document, without recourse to extrinsic evidence. He
further argues that at the time the mortgage was executed, it was a mortgage deed from
Lopes to First Franklin, not a mortgage deed from Lopes and Kurak to First Franklin.
Thus, according to the Trustee, the mortgage did not grant a mortgage in Kurak’s interest
in the Falmouth Street property as a matter of law. Relying upon Smigliani v. Smigliani,
385 Mass. 84, 90-91 (1970), the Trustee adds that Lindley’s alteration of the mortgage to add
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In Smigliani, the court stated:3
[T]he legal principle on which we base our decision is well settled. As
heretofore noted, when the deed was delivered the plaintiff and his wife
were named therein as grantees. Before the instrument was recorded the
names of the plaintiff and his wife were erased and the name of the
corporation substituted. Further, there is no evidence that the substitution
of the grantee was made in the presence or with the authority of the
grantors. . . . In the case of Carr v. Frye, 225 Mass. 531, 114 N.E. 745, where
the grantee of land, having received a completed deed in his name, caused
his name to be erased as grantee and that of his wife substituted therefor
before the deed was recorded, this court stated, ‘The erasure of his name
and the insertion of the name of * * * (his wife) did not divest him of his
estate nor transfer it to her. It was his property and remained so, although
the record title was in her name. * * * ‘When a person has become the legal
owner of real estate, he cannot transfer it or part with his title, except in
some of the forms prescribed by law. The grantee may destroy his deed,
but not his estate.‘‘ Id. at 532-533, 114 N.E. at 745. Likewise, in the instant
case, the altered instrument was ineffective as a conveyance to the
corporation. It conveyed no title. Therefore the plaintiff has continued to
retain his undivided interest in the property.
358 Mass. at 90-91.
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the Debtor’s name to the first page was invalid and cannot change the scope of the
mortgage.3
The Trustee recognizes exceptions to the general rule in the event of a mutual
mistake that makes the mortgage ineffective to accomplish the parties’ intentions, a
circumstance that would permit the use of equity to reform the mortgage in order to
conform to the parties’ actual intentions. He also recognizes that where the grantor of a
deed is present and assents to the alteration, the grantor might be estopped from asserting
the invalidity of the deed. See Long v. Lowery, 43 Mass. 414, 418 (1923). He notes that
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neither circumstance exists in this case.
South Point maintains that the insertion of the Debtor’s name did not create after the
fact liability because she had signed the mortgage as Borrower and granted an interest in
the property as mortgagor.
C. Analysis
“Every deed presented for record shall contain or have endorsed upon it the full
name, residence and post office address of the grantee . . . .” Mass. Gen. Laws ch. 183, § 6.
“Massachusetts is a ‘title theory’ state in which a mortgagee is considered to have legal title
to the land, subject only to the mortgagor’s right to redemption on satisfaction of the
conditions of the mortgage.” Edward C. Mendler, Massachusetts Conveyancers’
Handbook with Forms (4 ed. 2008). In the instant case, the Debtor was not identified asth
a grantor of the mortgage until after she executed the mortgage to First Franklin. Although
the Court has been unable to find any modern cases that directly address whether the
insertion of the Debtor’s name after the execution of the mortgage constitutes a material
alteration, several early Massachusetts cases are instructive.
In Kendall v. Kendall, 94 Mass. 92 (1866), the plaintiff brought an action against the
defendant and his assignee to foreclose a mortgage. The mortgage on its face purported
to have been witnessed and to have been executed by the defendant’s deceased wife,
releasing her dower and homestead. The authenticity of the deceased wife’s signature was
not established and there was insufficient evidence for the court to determine who was
responsible for the alteration of the mortgage, although the defendants attempted to prove
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that the mortgage was fraudulently altered by the addition of the deceased spouse’s
signature after it was acknowledged and executed by the defendant and delivered to the
plaintiff. The court noted that the defendants relied upon the principal that such an
alteration “avoids the whole instrument, as well what was originally effective and binding
as that which has been superadded [sic] by the subsequent fraudulent alteration.” 94 Mass.
at 93. The court, however, rejected the defendants’ defense to the foreclosure action,
distinguishing between executory contracts and conveyances of real property. Because the
defendant’s spouse was deceased, her signature on the mortgage did not affect the rights
of the parties to it.
In Burns v. Lynde, 88 Mass. 305 (1863), the Supreme Judicial Court reached a
different conclusion. In that case, a married woman signed and sealed a blank form of a
deed and granted her spouse parol authority to insert her name into the deed so as to
convey her rights of dower and homestead in her husband’s land. After the instrument
had been completed in her absence, and signed and delivered by her husband, she
commenced an action in equity to compel the grantee to reconvey her estate in the
premises, although the grantee acted in good faith and provided services to her husband
and supplies to her family. The court framed the issue as follows:
The defendant offered to prove that when she signed it she authorized him
to fill it up as he did; and that after it was filled up, and the husband had
executed it, the defendant informed her of the facts, and she thereupon
verbally assented to what had been done, and agreed that it should be taken
to be her deed duly executed. This evidence was rejected; and the question
presented is, whether these facts, if proved, would have made the instrument
valid as her deed.
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The case cited by the defendant, Nourse v. Jennings, 180 Mass. 592 (1902), does4
not address the issues before the court. While the case deals with an agency question,
the Defendant did not and cannot contend that Lindley was an agent of the Debtor.
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The court answered the question in the negative. It concluded:
In the present case, there was no redelivery of the instrument after the blanks
were filled. All that the defendant offered to prove was, that he
communicated the facts to Mrs. Burns, and she assented to what he had
done, and consented that he might hold it as her deed. If the deed had been
present and exhibited to her at the time, and she had been made fully
acquainted with its contents by reading or otherwise, and had it under her
control, and had then consented that the defendant should take it as her
deed, it would have been legally delivered in a perfect state. But without the
presence of the deed, nothing equivalent to this could take place.
When the paper was delivered, it had no validity or meaning. The filling of
the blanks created the substantial parts of the instrument itself; as much so
as the signing or sealing. If such an act can be done under a parol agreement,
in the absence of the grantor, its effect must be to overthrow the doctrine that
an authority to make a deed must be given by deed. We do not think such a
change of the ancient common law has been made in this commonwealth, or
that the policy of our legislation favors it, or that sound policy would dictate
such a change. Our statutes, which provide for the conveyance of real estate
by deed, acknowledged and recorded, and for the acknowledgment and
recording of powers of attorney for making deeds, are evidently based on the
ancient doctrines of the common law respecting the execution of deeds; and
a valuable and important purpose which these doctrines still serve is, to
guard against mistakes which are likely to arise out of verbal arrangements,
from misunderstanding and defect of memory, even where there is no fraud.
Id. at 310-11. Courts in other jurisdictions have reached similar conclusions. See, e.g.,
Ethridge v. Tierone Bank, 226 S.W.3d 127 (Mo. 2007).4
The Court finds that the decision in Burns is compelling, although the case is
distinguishable from the instant case. In Burns, the plaintiff spouse was alleged to have
authorized the insertion of her name into the deed, while in the instant case, there is no
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evidence or even allegation that the Debtor authorized her name to be added to the first
page of the mortgage, identifying her as a Borrower. Thus, her name did not precede the
granting language utilized in the form of mortgage. Lindley, or someone in his office,
added her name to the mortgage without her authority and did not obtain and notarize her
signature on the mortgage after it was amended.
Based upon the undisputed facts, as well as the decision in Burns, the Court
concludes that the alteration of the mortgage by Lindley or one of his employees, was
material and voids the mortgage as to her interest in the property. Indeed, the lender
apparently concluded that the change was critical or it would not have requested the
alteration. While the decision is a close one, it is supported by public policy. The opinion
in Burns rested in part on public policy, and that policy is as important today as it was in
1863. The Supreme Judicial Court determined that titles to real estate should not be held
hostage to disputes over the parties’ intention. It stated:
[I]t is highly useful that a class of instruments should exist, to which persons
may resort with a feeling of confidence that they shall not be binding till they
are formally executed, and that when thus executed they shall not be liable
to be varied or controlled by parol evidence. The importance of these
formalities is greatly increased by the fact that parties are now made
competent witnesses. The convenience which men might occasionally find
in leaving blanks in sealed instruments to be filled after delivery, would be
but a slight compensation for the evils which would follow the abrogation
of the ancient rule of the common law.
Id. at 312.
Reference to general contract principles is warranted and supports reliance upon
Burns.
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Under the common law, the unauthorized material alteration of a written
instrument by a party thereto, or the holder of it, voids the instrument and
the person responsible for the alteration may not recover upon it as altered,
nor may anyone claiming through the altering party, even in accordance
with its original tenor. The basis of the common-law rule is that any material
alteration destroys the identity of the contract, and therefore, if a party to the
contract who has not consented to its alteration were to be held bound by it,
it would in effect impose a new contract to whose terms the party has never
agreed.
4 Am. Jr. 2d Alterations of Instruments § 24 (2009). With respect to mortgage deeds in
particular, as a general rule, until delivery of a deed or mortgage the grantor may make
alterations and insertions. See Herbert T. Tiffany and Basil Nones, Tiffany Real Property,
§ 989 (September 2008). “An alteration made, after delivery, by consent of all the parties
to the conveyance, is binding and effective if it is followed by a new delivery of the
instrument, insofar as no proprietary rights vested in the grantee by the conveyance as it
originally stood are divested by such alteration,”id. (footnotes omitted), but “[a]n alteration
made after the delivery of the conveyance is absolutely nugatory to divest property rights
vested in the grantee by the conveyance.” Id. Thus, for example, if the name of the grantee
is altered, the alteration will not divest the grantee of his title. Chessman v. Whittmore,
40 Mass. 231, 234 (Mass. 1839). See also 4 Am. Jr. 2d Alterations of Instruments § 27 (2009).
Finally, in a criticism of the decision in Kendall, commentators have stated:
An alteration in a mortgage instrument, made by the mortgagee after its
delivery, without the consent of the mortgagor, has been decided, in a
number of cases, to invalidate the mortgage, except where the change is
made with the mortgagor’s consent. . . . The correctness of the decisions that
an alteration invalidates the mortgage depends on the correctness of the
theory that the rights of one who has a mortgage lien are purely executory,
and this is perhaps open to question. The execution of the mortgage, even in
states where it does not pass the legal title to the land, vests in the mortgagee
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a lien, involving a power to effect the sale of the land, in case of default in the
obligation secured, and such lien and power cannot, it would seem, be
divested by a subsequent alteration of the mortgage. In any state, however,
in which a conveyance is, after alteration, inadmissible in evidence, the
mortgage would be subject to a like rule, so as to be practically nugatory as
a result of the alteration, although in theory the lien still exists.
Id. See also 30 Richard A. Lord, Williston on Contracts § 75:15 (4 ed. May 2009)(“[t]heth
general rule with respect to rights to collateral security is that a fraudulent or material
alteration of a mortgage by the mortgagee or its agent will destroy the lien created upon
the property described in the mortgage instrument.”).
The instant case is distinguishable from those cases in which a grantor signs and
seals a deed, leaving unfilled blanks and gives an agent authority to fill in the blanks.
Where an innocent grantee without knowledge accepts the deed or mortgage, courts have
held that the grantor is estopped to deny that the deed as delivered was his deed. See
Bretta v. Meltzer, 280 Mass. 573, 575-76 (1932). In the instant case, Lindley was not the
Debtor’s agent. Rather, he was the agent of First Franklin. While the Debtor executed the
signature page of the mortgage as Borrower, her signature cannot excuse a material
alteration in the mortgage, particularly where her name did not precede the granting
language in the mortgage. Additionally, the definition of the term “Borrower” as
“mortgagor under this Security Instrument” would not be evident without a close reading
of the mortgage. Thus, the Court determines that the mortgage is not valid with respect
to the estate’s interest in the property.
IV. CONCLUSION
In view of the foregoing, the Court shall enter an order granting the Trustee’s
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Motion for Summary Judgment.
By the Court,
Joan N. Feeney
United States Bankruptcy Judge
Dated: July 15, 2009
cc: Warren E. Agin, Esq., Richard C. Demerle, Esq., U.S. Trustee
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