A “mortgage defect” is an issue with mortgage documentation filed at the Registry of Deeds that may void a mortgage. Home owners in Massachusetts could possibly use a mortgage defect to bypass their obligation to pay a mortgage debt. Mortgage defects could also delay foreclosures. In an important Massachusetts Supreme Court case, the court ruled that an affidavit from an attorney can cure certain mortgage defects.

Details of the Case: Bank of America v. Casey

In the case of Bank of America v. Casey, Mr. Casey argued that he should be released from any financial responsibility for his mortgage given that there was a material defect in his mortgage certificate of acknowledgement. The certificate of acknowledgement accompanies a mortgage, although it is a separate page from the multi-page mortgage document itself. The certificate has both a spot for home buyer initials and a space where the buyer’s name(s) should be filled in under the notary section. In this case, buyers’ initials were on the page but the name field was left blank. The closing attorney, however, did sign the notary section along with the other mortgage paperwork. Years after the initial closing, that same attorney filed and recorded (at the Registry of Deeds) an affidavit indicating that the buyers’ names were inadvertently left off the certificate of acknowledgement but that he properly witnessed the buyers’ signing of the mortgage documentation.

The Court’s Ruling

The Massachusetts Supreme Court ruled that an attorney affidavit is sufficient to cure such a defect, as long as it complies with Massachusetts General Laws chapter 183 section 5B. This law allows affidavits to be used to validate a mortgage when the person filing it has personal knowledge of the paperwork and signing and can attest to facts that may have been missing in the original documentation. In this case, that missing information was the buyers’ names.

Impact of the Ruling that Attorney Affidavits Can Cure Mortgage Defects

This ruling that attorney affidavits can cure mortgage defects will help clear a backlog of properties with title issues. For example, there are cases where lenders need to foreclose on a property but are unable to do so due to similar mortgage defects. Properties could sit vacant for extended periods of time while the issues persist. Filing of affidavits can help quickly clear up those defects and allow properties to change hands.