In re Taylor (Ch. 7 Case No. 16-70218, Adv. No. 16-07006)

The issue before the Court was whether the Trustee could avoid the Bank’s security deed under 11 U.S.C. § 544(a)(3) because it lacked the seal of the notary public acting as the official witness to the attestation of the security deed.  Under O.C.G.A. § 44-17-6(a)(1), a notary public is required to provide his seal in order to authenticate his notarial acts.  Attesting to a security deed is a notarial act.  The Court interpreted Georgia attestation law to find that the Bank’s security deed was not properly attested to by an official witness because the notary public failed to place his seal on the deed as required by Georgia law.  Under O.C.G.A. § 44-14-33, the Bank’s security deed as recorded could not provide a subsequent bona fide purchaser with constructive notice of the deed.  Therefore, the Court holds that the Trustee may avoid the Bank’s security deed under 11 U.S.C. § 544(a)(3).

Wednesday, December 7, 2016