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IN RE CALA

Case No. 06-13361, Adversary Proceeding No. 07-1272 (Bankr. N.D. Ohio May. 6, 2008)
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IN RE CALA

5 Citing cases

  1. Bank of New York v. Sheeley (In re Sheeley)

    Case No. 08-32316 (Bankr. S.D. Ohio Apr. 2, 2012)   Cited 7 times
    In Sheeley, there was an enforceable prepetition mortgage against the debtors' property notwithstanding defects in the legal description of the property.

    However, a mortgage cannot be reformed if it will prejudice the rights of intervening bona fide purchasers. Wells Fargo Bank Minn. v. Mowery, 931 N.E.2d 1121, 1129 (Ohio Ct. App. 2010); Hardesty v. Huntington Nat'l Bank (In re Payne), 450 B.R. 711, 720 n. 9 (Bankr. S.D. Ohio 2011); Easter, 367 B.R. at 615 and Helbling v. Mortgage Elec. Registration Sys., Inc. (In re Cala), 2008 WL 2001761 (Bankr. N.D. Ohio May 6, 2008).

  2. In re Tim Phalen and Lorie Buxton

    445 B.R. 830 (Bankr. S.D. Ohio 2011)   Cited 15 times
    Applying the principles established in Smith's Lessee v. Hunt, 13 Ohio 260

    See also Logan v. Universal Credit 1 Union, Inc. (In re Bozman), 365 B.R. 824, 829–30 (Bankr.S.D.Ohio 2007) (holding that an improperly executed mortgage did not put trustee as bona fide purchaser on constructive notice),aff'd, 2007 WL 4246279 (S.D.Ohio Nov.28, 2007). Thus, “[o]nly properly executed mortgages take priority over a bona fide purchaser....” Kovacs v. First Union Home Equity Bank (In re Huffman), 408 F.3d 290, 293 (6th Cir.2005); see also Helbling v. Mortg. Elec. Registration Sys., Inc. (In re Cala), No. 07–1272, 2008 WL 2001761, at *3 (Bankr.N.D.Ohio May 6, 2008) (“Ohio law provides that ‘an improperly executed mortgage does not put a subsequent bona fide purchaser on constructive notice.’ ” (quoting Zaptocky, 250 F.3d at 1028)); In re Nowak, 104 Ohio St.3d 466, 820 N.E.2d 335, 338 (2004) (“Since only properly executed mortgages were entitled to be recorded, a mortgage [that was improperly executed], even though recorded, could not serve as constructive notice to a subsequent bona fide purchaser.”).

  3. In re Burns

    435 B.R. 503 (Bankr. S.D. Ohio 2010)   Cited 18 times
    Noting that the blank acknowledgment clause renders the mortgage invalid under Ohio law and the mortgage cannot be saved by the doctrine of substantial compliance

    Smith's Lessee has been applied by a number of bankruptcy courts in Ohio. See Terlecky v. Chase Home Finance, LLC (In re Sauer), 417 B.R. 523, 532 (Bankr.S.D.Ohio 2009); Hazlett v. Chase Home Fin., LLC (In re Nowak), 414 B.R. 269, 277 (Bankr.S.D.Ohio 2009); Rieser v. Fifth Third Mortg. Co. (In re Wahl), 407 B.R. 883, 888-89 (Bankr.S.D.Ohio 2009); Drown v. Countrywide Home Loans, Inc. (In re Peed), 403 B.R. 525, 531 (Bankr.S.D.Ohio 2009); Helbling v. Mortg. Elec. Registration Sys., Inc. (In re Cala), 2008 WL 2001761 (Bankr.N.D.Ohio May 6, 2008); and Field v. ABN AMRO Mortg. Group, Inc. (In re Wheeler), 2005 WL 4057841, 2005 Bankr.LEXIS 2912 (Bankr.S.D.Ohio July 21, 2005). Smith's Lessee was determined based upon earlier cases from Ohio and other jurisdictions.

  4. In re Sauer

    417 B.R. 523 (Bankr. S.D. Ohio 2009)   Cited 19 times
    Holding that because the notary's affidavit was "extrinsic to the Mortgage, it cannot be considered competent evidence of proper acknowledgment or certification under controlling Ohio law."

    In Ohio, "[o]nly properly executed mortgages take priority over a bona fide purchaser ...." Kovacs v. First Union Home Equity Bank (In re Huffman), 408 F.3d 290, 293 (6th Cir. 2005); see also Helbling v. Mortgage Elec. Registration Sys., Inc. (In re Cala), 2008 WL 2001761 at *3 (Bankr.N.D.Ohio May 6, 2008) ("Ohio law provides that `an improperly executed mortgage does not put a subsequent bona fide purchaser on constructive notice.'" (quoting Zaptocky, 250 F.3d at 1028)).

  5. Drown v. Countrywide Home Loans, Inc. (In re Peed)

    403 B.R. 525 (Bankr. S.D. Ohio 2009)   Cited 19 times
    Applying Ohio law

    In Ohio, "[o]nly properly executed mortgages take priority over a bona fide purchaser. . . ." Kovacs v. First Union Home Equity Bank (In re Huffman), 408 F.3d 290, 293 (6th Cir. 2005); see also Helbling v. Mortgage Elec. Registration Sys., Inc. (In re Cala), 2008 WL 2001761 at *3 (Bankr. N.D. Ohio May 6, 2008) ("Ohio law provides that `an improperly executed mortgage does not put a subsequent bona fide purchaser on constructive notice.'" (quoting Simon v. Chase Manhattan Bank (In re Zaptocky), 250 F.3d 1020, 1028 (6th Cir. 2001))).