In re Perry (Ch. 7 Case No. 16-40207, Adv. No. 16-04005)
The issue in the case was whether a security deed executed by a husband-debtor in favor of Wells Fargo was avoidable under 11 U.S.C. § 544(a)(3). The Trustee argued that the Security Deed was patently defective due to the lack of an attesting official witness, which is required by O.C.G.A. § 44-14-33 for recordation of a security deed. The Trustee alleged that the “Attestation Page” only contains the signatures of the borrower and an unofficial witness and the notary public’s signature and seal on the following page under the term “Acknowledgment” do not satisfy the requirements for proper attestation of a security deed. Wells Fargo argued that O.C.G.A. § 44-2-18 provides for the curing of defects in security deeds through an affidavit and the signature of the official witness on the Affidavit accompanying the Waiver recorded with the Security Deed cured any such defect. Following the Eleventh Circuit opinion of Gordon v. Terrace Mortgage Co. (In re Kim), 571 F.3d 1342 (11th Cir. 2009), the Court agreed with Wells Fargo and determined that the Trustee may not avoid the security deed.