More On Defectively Acknowledged Instruments

More on defectively acknowledged instruments, courtesy of USLegal.com, and presented here for general information only (Reliance on these cases by any reader of this blog is not recommended without first doing further research to determine the currently applicable state law):

• Some statutes require that an instrument must be acknowledged before recording. In such a situation, if the certificate of acknowledgment is materially defective and does not establish a valid acknowledgment either active or presumptive, then the actual recording of the instrument will not impart constructive notice to third parties. A defectively executed mortgage is valid between the parties in absence of fraud.[i]
  
  In Bank of Am., N.A. v. Corzin, 2010 U.S. Dist. LEXIS 8755 (N.D. Ohio Feb. 2, 2010), it was observed that a defectively executed mortgage, although recorded, is not entitled to priority over a mortgage that is executed and recorded subsequently in a proper manner, even though the subsequent mortgagee had actual knowledge of the prior mortgage.
  
  In Mortg. Elec. Registration Sys. v. Odita, 159 Ohio App. 3d 1 (Ohio Ct. App., Franklin County 2004), the court observed that a defectively executed mortgage although recorded, is treated as though it is not recorded. Therefore, a defectively executed mortgage without proper acknowledgement of the mortgagor by a notary will not be entitled to priority over a subsequent, properly recorded mortgage.
  
  In Gregg v. Georgacopoulos, 990 S.W.2d 120 (Mo. Ct. App. 1999), the court observed that if the formal acknowledgment is defective, the instrument is not invalidated between the parties or persons having actual notice of the deed. The recordation of the unacknowledged instrument is a nullity and will not provide constructive notice to any subsequent purchaser. Therefore, only purchasers for value without notice can take advantage of a defective acknowledgment.
  
  However, a deed to secure debt is considered as valid between the parties even if it is unattested or improperly attested.[ii] Recordation of an improperly attested deed to secure debt will not provide constructive notice of the contents or existence of the deed.
  
  [i] Seabrooke v. Garcia, 7 Ohio App. 3d 167 (Ohio Ct. App., Lorain County 1982),
  
  [ii] In re Updike, 93 B.R. 795, 797 (Bankr. M.D. Ga. 1988).

Source: Defectively Acknowledged Instruments.