HENRY J. BOROFF, Bankruptcy Judge.
Before the Court are the "Defendants' Motion to Dismiss Plaintiff's Complaint" (the "Motion to Dismiss"), the "Trustee's Motion for Summary Judgment Against Both Defendants" (the "Trustee's Summary Judgment Motion"), and the "Defendants' Cross-Motion for Summary Judgment" (the "Defendants' Summary Judgment Motion"). Resolution of each of the motions requires the Court to determine a single issue: whether a mortgage recorded under a spelling of the debtor's last name that differs from the spelling asserted by the Chapter 7 trustee (the "Trustee") to be the "correct" spelling is avoidable by the Trustee pursuant to 11 U.S.C. § 544(a).
In 1964, Yvette Thibault (the "Debtor") and George Thibault, the Debtor's husband (now deceased), acquired real property located in Springfield, Massachusetts and used as their primary residence (the "Property"). On the deed transferring ownership of the Property (the "Deed"), the Debtor and her husband's last name is spelled "Thibeault," with an "e." The Deed
In April 1990, the Debtor and her husband granted a mortgage on the Property to Credit Union Providence.
In February 1992, the Debtor and her husband refinanced the outstanding mortgage loan, granting a new mortgage on the Property to Home Credit Corp. The mortgage documents and the signatures again use the spelling Thibeault and were thus indexed by the Registry under that spelling of the last name. A subsequent discharge of that mortgage was recorded the same way.
In 1993, the Debtor and her husband granted a mortgage on the Property to Beneficial Mortgage Corp. to secure a $35,000 line of credit. The Debtor and her husband signed the mortgage documents using the spelling "Thibault" (without an e). The mortgage documents, however, refer to both spellings of the last name by identifying the Debtor and her husband as "George Thibault a/k/a/ George Thibeault and Yvette Thibault a/k/a Yvette Thibeault." Def. App. 73, April 15, 2014, ECF No. 24 (emphasis supplied). The 1993 mortgage (and its later discharge) was accordingly indexed under both spellings of the last name.
In 1995, the Debtor and her husband executed yet another mortgage on the Property to Contimortgage Corp. In the 1995 mortgage documents, the last name is spelled with an e and the signatures also contain an e. The 1995 mortgage (and its later discharge) was recorded and indexed under the last name Thibeault.
In November 2001, a Declaration of Homestead was drafted with the Debtor's last name spelled Thibeault, and was recorded under that spelling. The Debtor's signature, however, appears to use the spelling without the e.
On April 1, 2004, the Debtor borrowed $61,000 from Webster Bank and granted the mortgage at issue here (the "Mortgage") to Mortgage Electronic Registration Systems ("MERS") as nominee for Webster Bank. Both the Mortgage documents
Accordingly, an electronic search of the Registry under each spelling of the Debtor's last name returns the following results:
Thibeault 5/22/1964 Deed to George and Yvette Thibeault 4/25/1990 Mortgage (Credit Union Providence) 2/10/1992 Mortgage (Home Credit Corp.) 3/31/1992 Discharge of Mortgage (Credit Union Providence) 5/7/1993 Mortgage (Beneficial Mortgage Co.) 7/28/1995 Mortgage (Contimortgage Corp.) 8/17/1995 Discharge of Mortgage (Beneficial Mortgage Co.) 9/19/1995 Discharge of Mortgage (Contimortgage Corp.) 11/1/2001 Declaration of Homestead 4/6/2004 Mortgage (MERS as Nominee for Webster Bank) 5/11/2004 Discharge of Mortgage (Manufacturers and Traders) Thibault 3/19/1992 Certificate of Correction 5/7/1993 Mortgage (Beneficial Mortgage Co.) 8/17/1995 Discharge of Mortgage (Beneficial Mortgage Co.)
On October 30, 2013, the Debtor filed for protection under Chapter 7 of the Bankruptcy Code. In the box calling for the "Name of Debtor," the Debtor's last name is spelled Thibault (without an e). Directly beneath, in the section requiring the Debtor to list all other names used by the Debtor in the last 8 years, it states "AKA Yvette Thibeault." According to the Trustee, at the initial meeting of creditors, the Debtor presented a Massachusetts driver's license on which her last name was spelled Thibault, without an e.
On January 7, 2014, the Trustee commenced this adversary proceeding against Chase and MERS (the "Defendants") in which he seeks avoidance of the Mortgage pursuant to § 544 and preservation of the Mortgage for the bankruptcy estate under § 551. The Defendants filed their Motion to Dismiss, and the Trustee followed with his Summary Judgment Motion. The Defendants responded with their own request for summary judgment. After a hearing on the Motion to Dismiss and the Summary Judgment Motions held April 23, 2014, the Court took the matter under advisement.
The Trustee argues that the Mortgage may be avoided pursuant to the "strong-arm" powers of § 544, because the Mortgage was not recorded under the name "Thibault" — which, the Trustee maintains, is the "legally correct" spelling of the Debtor's last name. According to the Trustee, his only duty was to search the Registry under Debtor's "true" surname, a search which would not have revealed the existence of the Mortgage. The Trustee asserts that "the Mortgage does not correctly identify the Debtor," "does not provide notice to a bona fide purchaser without
The Defendants respond with the assertion that the spelling of the Debtor's last name with an e — as Thibeault — is not a material defect, but rather a slight variation or scrivener's error. Relying on Massachusetts case law, as well as the Real Estate Bar Association's Title Standard Number 21, the Defendants say that this type of minor variation does not preclude the Mortgage from providing constructive notice to perspective bona fide purchasers. According to the Defendants, therefore, the recording of the Mortgage was sufficient to constitute constructive notice of its existence.
The Defendants further argue that, even if the variation in the Debtor's name were material, the Trustee had constructive notice of the Mortgage on account of the three filings indexed under the name Thibault — the Certificate of Correction, the 1993 mortgage, and the associated release of that mortgage. Relying on Agin v. JPMorgan Chase Bank, N.A. (In re Adams), 462 B.R. 1 (Bankr.D.Mass.2011), the Defendants say that because those three documents provide information, within the chain of title, that the Debtor was also known by the last name Thibeault, they provide constructive notice of the Mortgage.
The Court has jurisdiction over this core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (K), and (O).
"In order to prevail on a motion for summary judgment, the moving party must show `that there is no genuine dispute as to any material fact' and that it `is entitled to judgment as a matter of law.'" OneBeacon Am. Ins. Co. v. Commercial Union Assur. Co. of Canada, 684 F.3d 237, 241 (1st Cir.2012) (quoting Fed.R.Civ.P. 56(a)). Here, the material facts are not in dispute and the Court may rule on the issues raised by the cross-motions for summary judgment as a matter of law.
Collins v. Bank of New England-West, N.A. (In re Daylight Dairy Products, Inc.), 125 B.R. 1, 3 (Bankr.D.Mass.1991) (quoting 11 U.S.C. § 544(a)) (additional citations omitted).
According to the Trustee, the Mortgage is legally defective and thus not properly recorded because the Debtor's last name is spelled Thibeault and not Thibault. The Defendants respond that this "mistake" or "scrivenor's error" is not material and is excused under Massachusetts law, thus rendering the Mortgage properly recorded and sufficient to provide constructive notice of its contents. Both arguments proceed from an underlying assumption that the Debtor's "true," "correct," or "legal" surname is Thibault, and not Thibeault, an assumption that does not hold under Massachusetts law.
In Massachusetts, unless adopted for fraudulent or other nefarious reasons, a persons' chosen name — i.e., a name they regularly use — has legal effect:
Commonwealth v. Clark, 846 N.E.2d 765, 771, 446 Mass. 620 (2006) (quoting Merolevitz, petitioner, 70 N.E.2d 249, 250, 320 Mass. 448 (1946)) (additional citations omitted); see also Young v. Jewell, 87 N.E. 604, 604, 201 Mass. 385 (1909) ("Where a person is in fact known by two names, either one can be used. This principle has been applied in about every connection.").
The Trustee relies on the Certificate of Correction and the fact that the Debtor's driver's license spells her last name as Thibault in arguing that that spelling is the "correct" one. But the Massachusetts Supreme Judicial Court (the "SJC") has explained that documents such as a driver's license do not determine what constitutes a person's legal name. For example, in Clark, the SJC noted that even the name on an individual's birth certificate may not be the individual's "true" name under Massachusetts law, in light of the common law rule. See 846 N.E.2d at 773. And in Sec'y of the Commonwealth v. City Clerk of Lowell, the SJC took care to clarify that to the extent any of its earlier cases had "suggest[ed] that a person has a `legal name' or a name `with legal effect,' different from the name he has lawfully chosen, those suggestions were not necessary to decision." 366 N.E.2d 717, 722, 373 Mass. 178 (1977) (emphasis supplied).
Whether a person is "known" by a name or has chosen to use a particular
A long line of Massachusetts cases hold that where an individual is known by different names, proper recording under any name by which the person is known constitutes constructive knowledge of the instrument. See, e.g., Colonial Bank Trust Co. v. Sheehan, 258 N.E.2d 306, 307, 357 Mass. 239 (1970); Lancy v. Snow, 62 N.E. 735, 737, 180 Mass. 411 (1902); Gillespie v. Rogers, 16 N.E. 711, 146 Mass. 610 (1888); Mac-Gray Services, Inc. v. Bay Macy, LLC, 2000 WL 1273853, at *2 (Mass.Super. March 23, 2000). And in Seder v. Zakaras, 35 F.2d 729, 730 (1st Cir.1929), the First Circuit Court of Appeals, relying on this line of Massachusetts case law, held that a trustee's rights as an attaching creditor under § 75 of the 1898 Bankruptcy Act could not defeat a mortgage given by an individual debtor, even though the mortgage was recorded under the name assumed by the debtor for use in his business.
Because the record presented establishes that the Debtor regularly used and was known under the surname Thibeault, the execution and recording of the Mortgage under that spelling cannot be said to be incorrect. It may be that a search under the surname Thibault would not immediately reveal the existence of the Mortgage, but the SJC has directed that:
Gillespie, 16 N.E. at 714.
Accordingly, the Mortgage cannot be defeated by the Trustee pursuant to § 544,
For all of the foregoing reasons, the Trustee's Summary Judgment Motion will be DENIED, the Defendants' Summary Judgment Motion will be GRANTED, and the Motion to Dismiss considered MOOT. Orders and a Judgment in conformity with this Memorandum shall issue forthwith.
In light of this Court's Order of even date granting the Defendants' Cross-Motion for Summary Judgment, the Defendants' Motion to Dismiss Plaintiff's Complaint is MOOT.
11 U.S.C. § 544(a)(3).
