SCHUMACHER v. GLEASON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, John C. Schumacher, claiming to still own a certain home and real property in the town of Clinton, brought this Superior Court action for slander of title and related claims against the defendant Michael Gleason, who had purchased the property from the foreclosing mortgagee, U.S. Bank National Association (U.S. Bank),³ in 2015. As relevant here, Schumacher alleged that an assignment in U.S. Bank's chain of title was void by reason of being undated, thus invalidating U.S. Bank's foreclosure and subsequent sale to Gleason. On Gleason's motion for summary judgment, a judge dismissed the complaint, concluding that Schumacher's voidness claim was barred by an earlier judgment in a related Housing Court summary process action.⁴ Schumacher now appeals, arguing that neither claim nor issue preclusion is applicable here, and that the undated assignment was void.⁵ We affirm, albeit on a ground different from that relied upon by the judge.⁶

We need not and do not decide whether either claim preclusion or issue preclusion forecloses Schumacher's voidness claim,⁷ because we conclude that in any event the claim fails on the merits. Schumacher's claim is based on the fact that when the holder of his 2004 mortgage (Union Federal Bank of Indianapolis) assigned that mortgage to U.S. Bank's predecessor in interest (Mortgage Electronic Registration System, or MERS), both the assignment and the notarization thereof were dated the “18th day of October” but did not specify any year. It is undisputed that the assignment accurately listed the date of Schumacher's original mortgage as May 24, 2004, and that the assignment itself was recorded on March 30, 2006. This gives rise to an inference that the assignment was executed on October 18 of either 2004 or 2005. Schumacher nevertheless contends that the failure to specify the year rendered the assignment void.

Schumacher has not cited any authority that supports his argument. He primarily relies upon In re Kelley, 498 B.R. 392 (1st Cir. BAP 2013), where a bankruptcy appellate panel, applying Massachusetts law, considered whether flaws in the notarization of a mortgage rendered the mortgage voidable by a bankruptcy trustee. Id. at 397. In Kelley, the notarized acknowledgment's failure unequivocally to express that the execution of the mortgage was the free act and deed of the mortgagors was held to render the acknowledgment materially defective and thus voidable.⁸ Id. at 400-401. In contrast, the notary's failure to fill in a blank to specify what evidence of identification the mortgagors had presented to the notary did not, standing alone, render the acknowledgment materially defective or voidable. Id. at 400.

Kelley thus does not establish that every omission from a notarized acknowledgment renders a conveyance voidable, let alone void. Nor do we find anything in Kelley, or the authorities it relies upon, suggesting that the failure to specify a year when stating the date of an acknowledgment (or of the conveyance itself) is so critical to the integrity of our real property transfer recording system as to render the conveyance void -- at least in circumstances like those here, where the conveyance was plainly executed and acknowledged within an identifiable window of time prior to being recorded. That the omission of a stated year might render the conveyance voidable by one of the parties thereto is insufficient to render it void. Cf. Bank of New York Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503 (2014) (where mortgage assignment was executed by mortgage's then record holder, recited that person signing on behalf of holder was vice-president of that company, and included attestation that signatory personally appeared and executed document before notary public, it satisfied G. L. c. 184, § 54B, “was ‘otherwise effective to pass legal title’ and cannot be shown to be void”).

Finally, we note that the statutes relevant to notarization have been amended, albeit after the execution of the assignment at issue here. Under current law, “[a] notary public shall not affix an official signature or seal on a notarial certificate that is incomplete,” G. L. c. 222, § 16 (e), and “shall not notarize a signature on a blank or incomplete document,” with an exception not relevant here. G. L. c. 222, § 16 (g). But the “failure of a document ․ to comply with the requirements set forth in sections 8 to 23, inclusive, shall not have any effect on the validity of the underlying document or the recording of the underlying document.”⁹ G. L. c. 222, § 20 (b) (i).

Judgment affirmed.

FOOTNOTES

3.   As trustee for Bear Stearns Asset Backed Securities Trust 2004-AC4.

4.   That earlier judgment was affirmed in U.S. Bank Nat'l Ass'n. v. Schumacher, 467 Mass. 421 (2014), and the Housing Court's denial of Schumacher's subsequent motion for relief from judgment was affirmed in U.S. Bank Nat'l Ass'n. v. Schumacher, 88 Mass. App. Ct. 1116 (2015).

5.   Having held Schumacher's claims precluded, the judge declared that two affidavits Schumacher had recorded at the relevant registry of deeds to assert his continuing ownership of the property were void and of no effect. On appeal, Schumacher makes no separate argument that the judge erred in doing so. Also, although Schumacher's complaint had asserted separate claims regarding certain previously submerged portions of the property, the judge rejected those claims on the merits, and on appeal Schumacher makes no argument that this was error. We therefore do not address these issues further.

6.   We acknowledge the amicus briefs filed by Grace Ross and Sara McKee.

7.   See Duross v. Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833, 837-841 & n.12 (2020) (notwithstanding G. L. c. 239, § 7, summary process judgment could give rise to issue preclusion; noting possible question whether such judgment could give rise to claim preclusion).

8.   Kelley relied upon McOuatt v. McOuatt, 320 Mass. 410 (1946), where that court held that, absent any evidence that a grantor had acknowledged a conveyance to be his free act and deed, the conveyance had not been “duly acknowledged” as then required by statute, and was without effect. Id. at 414-415. See Bank of America, N.A. v. Casey, 474 Mass. 556, 560-561 (2016).

9.   This clause applies “[e]xcept as may be required by the office of the state secretary for the issuance of an apostille and provided the form of acknowledgement, jurat, signature witnessing or copy certification otherwise is substantially similar in legal meaning and effect to the texts of the several forms set forth in this chapter or in the appendix to chapter 183.” G. L. c. 222, § 20 (b).