MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is the "Motion of the Defendant, U.S. National Bank Association[1], to Dismiss Count I of Debtor's Complaint" (the "Motion to Dismiss") filed by U.S. National Bank Association ("U.S. Bank"), the "Objection to Motion of U.S. Bank to Dismiss" (the "Objection") filed by Safina Mbazira (the "Debtor"), and the "Motion by Defendant [U.S. Bank] for Certification of State Law Question to Massachusetts Supreme Judicial Court" (the "Motion to Certify Question") filed by U.S. Bank. The question presented, as described by the Motion to Certify Question, is Whether a mortgage encumbering registered land, whose certificate of acknowledgement mistakenly omits the mortgagor's name, but which mortgage was accepted by the Land Court for registration and is noted on the certificate of title of such registered land, provides constructive notice.2

Put another way, the parties seek a determination whether In re Giroux3 and In re Bower,4 which both held that such a defect rendered a mortgage recorded in the registry of deeds incapable of providing constructive notice, applies to an equally defective instrument registered in the Massachusetts Land Court and noted on the certificate of title. For the reasons set forth below, I will deny the Motion to Dismiss and the Motion to Certify Question.

II. BACKGROUND

For the purposes of a motion to dismiss, I must assume the truth of all well-pleaded facts set forth in the complaint.5 In any event, the facts are not in dispute and the parties agree that the Motion to Dismiss presents a pure question of law.

The Debtor is the sole owner of real property located at 977 Trapelo Road in Waltham, Massachusetts (the "Property").6 The purchase of the Property was financed through Fremont Investment & Loan ("Fremont") on July 25, 2005.7 As part of that transaction, the Debtor executed two promissory notes in favor of Fremont in the original principal amounts of $528,000.00 (the "First Note") and $132,000.00 (the "Second Note") and granted a first and second mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Fremont, to secure the respective obligations under the notes (the "First Mortgage" and the "Second Mortgage," respectively).8 On July 26, 2005, the deed transferring the Property to the Debtor was registered in the Middlesex South Registry District of the Land Court (the "Land Court") and noted on certificate of title No. 234510 (the "Certificate of Title"), as were both the First Mortgage and Second Mortgage.9 On July 23, 2008, an assignment of the First Mortgage dated June 20, 2008, purporting to assign the First Mortgage from MERS to U.S. Bank as trustee, was registered in the Land Court and noted on the Certificate of Title (the "Assignment").10

The Debtor filed her Chapter 11 petition on November 12, 2013. On "Schedule A — Real Property" ("Schedule A"), the Debtor listed a fee simple interest in the Property which she valued at $576,400.00, subject to secured claims in the amount of $770,182.60. On "Schedule C — Property Claimed As Exempt" ("Schedule C"), the Debtor claimed an exemption in the Property in the amount of $500,000.00 pursuant to Mass. Gen. Laws ch. 188, § 3.

On February 25, 2014, the Debtor commenced the present adversary proceeding, seeking, inter alia, a determination that the First Mortgage is invalid pursuant to 11 U.S.C. § 506(d) and thus preserved for the benefit of the estate pursuant to 11 U.S.C. § 551. As grounds therefor, the Debtor alleged that the certificate of acknowledgement (the "Acknowledgement") affixed to the First Mortgage was materially defective because it failed to identify the Debtor as the person who executed the First Mortgage. The Acknowledgement, which was attached to the Motion to Dismiss, reads as follows:

The blank space between "personally appeared" and "proved to me" is where the notary should have inserted the Debtor's name. I further note that the Acknowledgement does not indicate the year in which it was executed.

After several extensions to file an answer, U.S. Bank instead filed the Motion to Certify Question on May 23, 2014, asserting that "the notice provided by a mortgage containing a purportedly defective acknowledgement noted on the certificate of title of registered land appears to be an issue of first impression," making certification to the Supreme Judicial Court of Massachusetts appropriate.12 Reasoning that consideration of the Motion to Certify Question was premature in the absence of an answer, I continued it generally and ordered U.S. Bank to file a responsive pleading. On June 3, 2014, U.S. Bank filed the Motion to Dismiss accompanied by a supporting memorandum. The Debtor filed the Objection on July 5, 2014. I heard the Motion to Dismiss on July 9, 2014, and, at the conclusion of oral arguments, took the matter under advisement. I have since consolidated my consideration of the Motion to Dismiss with the Motion to Certify Question.

III. POSITIONS OF THE PARTIES

A. U.S. Bank

U.S Bank asserts that the Debtor cannot prevail on her complaint because she cannot establish that the First Mortgage fails to give constructive notice. While U.S. Bank concedes that the nature of the defect in the Acknowledgement is the same as it was in In re Giroux and In re Bower, it nonetheless contends that the registered land system is governed by a distinct set of statutory provisions and principles that mandate a different result. Indeed, U.S. Bank notes that the analyses of both of those decisions was informed by reference to Mass. Gen. Laws ch. 183, §§ 4, 29, and 30, which do not apply to the registered land system.

U.S. Bank begins from the premise that the Massachusetts registered land system is designed to promote certainty of title and, unlike recorded land, has gone through an adjudication process to quiet title. This alone, it posits, suggests a very different result. Moreover, U.S. Bank asserts that pursuant to Mass. Gen. Laws ch. 185, §§ 46, 57, and 58, the act of registration of an instrument affecting registered land itself operates as constructive notice to third parties. Also, it states that pursuant to Mass. Gen. Laws ch. 185, § 67, a mortgage takes effect upon registration. Furthermore, relying on Doyle v. Commonwealth,13 U.S. Bank argues that certificates of title are "`conclusive as to all matters contained therein.'"14 U.S. Bank thus urges that a bona fide purchaser need only look at the certificate of title and would therefore be charged with constructive notice of the First Mortgage.

B. The Debtor

The Debtor asserts that the First Mortgage is unperfected in light of the material defect contained within the Acknowledgement, allowing her to avoid it pursuant to 11 U.S.C. §§ 544(a)(3) and 1107 as a bona fide purchaser regardless of actual knowledge. She argues that the distinction between registered land and recorded land makes no difference in this context and In re Giroux and In re Bower should control. The Debtor relies on Mass. Gen. Laws ch. 185, § 58 for the proposition that the provisions of law relative to recorded land also apply to registered land. As such, she contends registration is simply a procedure and cannot essentially repair a material defect. Although the Debtor concedes there is no Massachusetts case law on the subject, she cites In re Goheen15 as a case having a substantially similar fact pattern where the Chapter 13 trustee was able to avoid an unperfected mortgage noted on the certificate of title in Ohio.

IV. DISCUSSION

A. The Rule 12(b)(6) Standard

Pursuant to Fed.R.Civ.P. 12(b)(6), made applicable in adversary proceedings by Bankruptcy Rule 7012(b), a court must dismiss a complaint if it fails to state a claim upon which relief can be granted.16 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"17 "In deciding a motion to dismiss, however, a court is not always limited to the facts alleged in the plaintiff's complaint."18 To the contrary,

The Debtor does not contest the authenticity of the Acknowledgement attached to the Motion to Dismiss and agrees that it may be considered at this stage.

B. In re Giroux and In re Bower

To inform the present dispute, a brief discussion of In re Giroux and In re Bower is warranted. In In re Giroux, Judge Feeney of this district considered whether the failure to list the mortgagor's name in a mortgage acknowledgement was a material defect that should have prevented the mortgage from having been accepted for recordation under Mass. Gen. Laws ch. 183, § 29.20 That section provides in relevant part:

Recognizing there were no Massachusetts decisions directly on point, Judge Feeney relied on McOuatt v. McOuatt,22 a case in which the Supreme Judicial Court explained:

She found that the Supreme Judicial Court signaled its adherence to the requirement of expressly stating that the execution of an instrument is the grantor's free act or deed by holding:

In light of this authority, Judge Feeney reasoned that Massachusetts requires strict formality in the execution of mortgage acknowledgements, rendering the omission of the debtor's name from the acknowledgement a patent and material defect.25

In the absence of such strict formality, Judge Feeney looked to Graves v. Graves26 to determine the consequences of the mortgage's improvident recordation.27 In that case, the Supreme Judicial Court held that an

She also quoted Dole v. Thurlow29 where the Supreme Judicial Court similarly held:

With these cases in mind, Judge Feeney predicted that the Supreme Judicial Court would conclude that a mortgage containing a materially defective acknowledgement, though recorded, would not give constructive notice to a bona fide purchaser.31 Accordingly, she held that the Chapter 7 trustee, having the rights and powers of a bona fide purchaser under 11 U.S.C. § 544(a)(3) without regard to his actual knowledge, could avoid the mortgage.32

On appeal, the United States District Court for the District of Massachusetts affirmed, agreeing that because Massachusetts is a strict formality state, the Supreme Judicial Court would likely hold that the omission of the mortgagor's name from the acknowledgement was not a purposeless formality.33 Approximately one year later, I was faced with the same question in In re Bower and reached the same conclusion as Judge Feeney in In re Giroux.34

C. Registered Land

In Massachusetts, real property may be either registered or unregistered, which is also referred to as recorded.35 Most real property in Massachusetts is unregistered land and is conveyed by the delivery of a deed.36 Even without recording the deed in the appropriate registry, the transfer of unregistered land is valid as between the parties, their heirs, devisees, and other persons with actual notice of the deed.37 If, however, the deed "is recorded in the registry of deeds for the county or district in which the land to which it relates lies," third parties are then said to have constructive notice of the deed's existence.38

In contrast, "[r]egistered land is not recorded in the same manner as other real estate, but is governed by Massachusetts statutes codifying a version of what is commonly referred to as a `Torrens System' for the registration of land titles."39 The land registration system was enacted in 1898,40 "to provide a means by which the title to land may be readily and reliably ascertained."41 "The intent of the statute was to simplify land transfer and to provide bona fide purchasers with conclusiveness of title."42 To this end, "[r]egistered land has gone through an adjudication process in order to quiet title, and `the Commonwealth guarantees and insures the title to land that is registered.'"43

Upon entry of the judgment of registration, a certified copy of the judgment is sent to the register of deeds so the judgment, including all encumbrances, can be transcribed in a registration book, creating an original certificate of title.44 Once a certificate of title is issued, "every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate" with the exception of certain encumbrances specified by statute such as taxes, federal tax liens, betterment assessments, and leases for a term not exceeding seven years.45 As such, it is generally said that "a person examining a certificate of title in the land registry is entitled to the conclusion that the property is not encumbered by anything that does not show on the certificate."46

The Supreme Judicial Court has recognized two exceptions to the general rule that subsequent purchasers take free from all encumbrances except those noted on the certificate. The first exception is straightforward — a purchaser takes subject to an unregistered interest, such as an easement or restriction, if the purchaser had actual knowledge of the unregistered interest.47 The second exception, which is more nuanced, applies when "there were facts described on [the] certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system."48 This exception has been applied in cases where a registration decree and certificate of title contained a general reference to rights granted by a recorded subdivision plan or deed, reasoning that even without specificity, a purchaser has notice of the unregistered interest and would investigate further.49

Once land is registered, an owner "may convey, mortgage, lease, charge or otherwise deal with it as fully as if it had not been registered," and "may use forms of deeds, mortgages, leases or other voluntary instruments, like those now in use, sufficient in law for the purpose intended."50 Notably, however, these instruments, with few exceptions not relevant here, will not "take effect as a conveyance or bind the land, but shall operate only as a contract between the parties, and as evidence of authority to the recorder or assistant recorder to make registration."51 Indeed, "[t]he act of registration only shall be the operative act to convey or affect the land."52 If an owner desires to convey registered land, the owner must execute a deed of conveyance which either the grantor or grantee must present to the assistant recorder, who will then make out a new certificate of title to the grantee and stamp the grantor's surrendered certificate of title "canceled."53

Similarly, Mass. Gen. Laws ch. 185, § 67, which applies to registering mortgages, provides:

Registration of a mortgage or other encumbrance, however, does not trigger a new adjudication of the status of title. Instead, "the assistant recorder shall enter upon the certificate of title a memorandum of the purport of the mortgage deed, the time of filing and the file number of the deed, and shall sign the memorandum."55 Only when there is a question or dispute as to the proper memorandum to be made in pursuance of an instrument does the assistant recorder refer the matter to the Land Court for a full hearing.56

Unlike the recorded land system, there is no express requirement in the statutory provisions governing registered land that a deed must be acknowledged as a prerequisite to registration.57 Indeed, Chapter 185 only expressly mandates three documents be acknowledged: (1) a power of attorney for any person procuring land for another; (2) a revocation of such a power of attorney; and (3) a written instrument withdrawing land from the registration system.58 Nevertheless, Mass. Gen. Laws ch. 185, § 58, which is titled "Notice of registering, filing or entering," provides:

Although this section is somewhat awkwardly phrased, it essentially states that an instrument that would legally affect land if recorded in the registry of deeds will provide notice to all persons if registered.60 Thus, Mass. Gen. Laws ch. 185, § 58 incorporates the filing standards for recorded land, including Mass. Gen. Laws ch. 183, §§ 29 and 30, into the land registration system as the condition for the act of registration to be notice to third parties.61

D. Avoidance of Unperfected Interest Pursuant to 11 U.S.C. § 544(a)(3)

Pursuant to 11 U.S.C. § 544(a)(3), a trustee is vested with the rights of a hypothetical bona fide purchaser of real property "without regard to the knowledge of the trustee or of any creditor."62 These rights are defined by reference to state law.63 Section 1107(a) of the Bankruptcy Code grants these same rights to a Chapter 11 debtor in possession.64 Accordingly, whether the Debtor may avoid the First Mortgage depends solely on whether the Debtor had constructive notice.

In the present case, the Acknowledgement omits the Debtor's name, as well as the year from the date. In In re Bower, I agreed with Judge Feeney's conclusion in In re Giroux that the Supreme Judicial Court would hold that an acknowledgement that does not state the name of the mortgagor is materially defective.65 Therefore, I find that the Acknowledgement is materially defective.

I do not understand U.S. Bank to dispute the material defectiveness of the Acknowledgement — they do not address need to or requirements for acknowledgement at all — but instead urge that the land registration system is so different from the recorded land system that a different result is warranted. Essentially, U.S. Bank posits that under a plain reading of Mass. Gen. Laws ch. 185, §§ 46, 57, and 58, all parties are charged with constructive notice of any encumbrances noted on the certificate of title of registered land. Therefore, U.S. Bank reasons, the Debtor has constructive notice of the First Mortgage because it appears on the Certificate of Title. Ultimately, this argument is flawed for several reasons.

As I noted above, U.S. Bank reads Mass. Gen. Laws ch. 185, § 58 wholly out of context.66 It does not provide that every registered instrument provides notice to all persons, but only those "which would under other provisions of law, if recorded, filed or entered in the registry of deeds, affect the land to which it relates."67 Because a mortgage with a defective acknowledgement should not be accepted for recordation under Mass. Gen. Laws ch. 183, § 29, and, under the common law, does not give constructive notice if it is improvidently recorded, the registration of the First Mortgage does not, as a matter of law, provide notice to third parties under Mass. Gen. Laws ch. 185, § 58. In this way, unacknowledged instruments are treated the same in both the registered and unregistered (recorded) land systems.

The fact that the First Mortgage appears on the Certificate of Title does not change this result. While Mass. Gen. Laws ch. 185, § 46 provides that a "purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate,"68 that must be read in conjunction with Mass. Gen. Laws ch. 185, § 58 which governs when a registered instrument is notice to third parties.69 The Supreme Judicial Court has recognized that "applicable rules of statutory construction require courts to `construe statutes that relate to the same subject matter as a harmonious whole and avoid absurd results.'"70 It would be absurd if, on one hand, the statute precluded the First Mortgage from giving notice of itself on account of its defective acknowledgement, but, on the other, treated its notation on the Certificate as notice to all parties. I concede, however, that this issue ultimately may be so abstract and esoteric that it could only exist as a practical matter in an avoidance action under 11 U.S.C. § 544(a)(3) where a Trustee or debtor in possession may cast off the burden of actual notice and adopt the persona of a bona fide purchaser who, by definition, lacks actual notice.

This result is also consonant with the purpose of the registered land system and time honored principles of Massachusetts law. While it is often said that "[t]he purpose of land registration is to provide a means by which the title to land may be readily and reliably ascertained,"71 the Supreme Judicial Court has also stated that "[i]t is clear from the history of the Torrens system that the underlying purpose of title registration is to protect the transferee of a registered title."72 Indeed, registration protects bona fide purchasers from unregistered interests, unless they have actual notice or the certificate of title contains facts that would prompt a further investigation of the registration system.73 Moreover, a contrary ruling would effectively mean that registered mortgages do not require an acknowledgement, the very proof that the mortgagor validly executed the encumbrance appearing on the certificate. Such a practice would hardly make "the title to land ... readily and reliably ascertained."74

In sum, because the First Mortgage cannot give constructive notice of itself, the Debtor has stated a plausible claim for relief and dismissal is unwarranted.75 Moreover, as resolution of the issue was apparent from the statutory text, certification to the Supreme Judicial Court is unnecessary.

V. CONCLUSION

In light of the foregoing, I will enter an order denying the Motion to Dismiss and the Motion to Certify Question.