bower on behalf of appellant p and c mortgages like to reserve five minutes of fame a place grounders we all know that historically in ohio defectively executed mortgages were deemed not to be recorded when challenged by bona fide purchaser for value those challenges came under a highrise code section fifty three zero one twenty five a which says all properly executed documents when recorded  notice but they do not create constructive notice as against a bona fide purchaser in two thousand and thirteen the ohio legislature codify the nec to the new law called revised code section thirteen zero one four zero one and the new law basically says all documents can be recorded in when they're recorded they create constructive notice that statue went up to the ohio supreme court on certified questions from judge caldwell in the southern district bankruptcy court and as a result of the decision on certified questions in messer the court ruled that thirteen zero one four zero one creates constructive notice to the world of all recorded instruments i will also note that the court judge lands are said that the statute applies is not in contradiction with fifty three zero one twenty five a but is also not in contradiction with anything else in the revised code so post thirteen zero one four zero one where are we becomes the question the trustees have basically bankruptcy trustees have conceded that they cannot challenge mortgages any longer using five forty four a in particular one trustee that has three cases pending cases including this one concluded that the statute didn't affect five forty four a one in his rights as a hypothetical judgment lien creditor of two issues of that one is five forty four a is a notice statute as judge caldwell said in the bankruptcy decision in mass or five forty four a is subject to constructive notice so the only means by which a trustee can attack using five forty purchasers for values so what does that mean they have no right to attack under fifty three zero one twenty five a which specifically reserves the challenge to mortgages by other mortgagees or bona fide purchasers if they can't attack as bona fide purchasers and they can attack if they are thirteen zero one for a one they can attack as judgment when creditors a trustee is barred from challenging a mortgage that was recorded prior to his lien simply because in this as in this case the knowledge meant lacks the names of the borrowers historically the cases cited by the trustee tell us that mortgages could be challenged this court is well aware i've been here a few times on those cases but if the court looks at the jurisprudence in this area those cases are all brought under five forty four a three or at least decided under five forty four eighty three back in the early days of the single witness scotland so it is our contention your honour's that the bankruptcy court should have granted our motion to dismiss and or for judgment on the pleadings because five forty four a one knocks out his ability to challenge us  as a judgment when creditor i think the bankruptcy appellate panel decision kind of conflated the error in concluding that thirteen zero one four a one doesn't deal with priority because in fact it does because a judge it lean creditor can't attack mortgage the fact that the mortgage is filed prior to the judgment going date which is considered to be the date the petition is filed means the mortgage has priority over the trustees hypothetical l under section five forty four a one so i would ask the court to reverse the decision of the bankruptcy court and grant our motion to dismissed and or for judgment on the pleadings thank your r  dan this is a case that was decided in eight hundred forty seven and that case has been on the record four hundred seventy one years and it was decided as i said by the ohio supreme court that hears what that case said it said very clearly that a defective mortgage recorded prior to three judgment creditors willfully and could not be reform in order to have priority over those judgment creditors liens so we had a situation where we had a defective executed mortgage that was recorded first and then we had three subsequent judicial lead ins and what the supreme court ohio said is that those lead creditors have priority over specter why it is old law it's been on the record for one hundred seventy one years and it has withstood the test of time it has never been modified it has never been reversed by the ohio supreme court  this court has held before the powers of a chapter seven trustee as a hypothetical lien creditor under five forty four a one are derived from the laws of the state of ohio so if the laws of the state of ohio provide that a judicially and creditor even though filed after a defective can mortgage nevertheless has priority this bankruptcy court has to find that the use power of the five forty one a one still are there now i think that at that point in time we could stop in and allow the supreme court decision from white to be presidential in this case but there is more to the decision of judge walter the bankruptcy judge what he did he decided to go back through the history of ohio law and looked at how ohio came to treat to treat when creditors versus bonafide purchaser for value but bankruptcy judge and that's right the bankruptcy judge in this case and he wrote a wonderful decision and he did all the analysis at least usually up but in this case he really did he even looked he even decided to go contrary to the decision from in the messer case he respectfully disagree but explain why he disagree and that's where the history was very important that's correct that's correct and he explained why it was very important and it's kind of interesting when the the appeal went up to the bat the bat was so impressed if you look at the decision the things that judge walter it had concluded in the trial to pat also agreed with so what we have here is a situation where i think that the issue that is really bothers them to the opposes the fact that under ohio law the rights of a judicial in creditor are treated differently than a bona fide purchaser provided i don't know why they hire legislature decided to do that does it make sense to us i'm not sure it does and the reason why i said not sure is does because on april the six two thousand and seventeen the ohio legislature decided to act legislation that if you really read that legislation it seems to say that we're going to treat a judicial in creditor and a bona fide purchaser for value the same way up until that time it seems like the case law said that it made no difference creditor had notice constructed of actual you if you follow that land and recorded that lee and and a defective mortgage was already a record you had priority over that that was ohio law  there's no question that the new laws retroactive to this case there is no question that the new law is not retroactive to this case that's correct that that a judge walters even though they are that's not right that's correct your honor i think that was the position of both judge walters and also the baptists and i have not found any case that is not contested so just just a couple more points the supreme court when it decided messer if you look at that it has if and you read the all the language in that case there's nothing in there the talks about and the subsequent legislation it never happened does that sort of undermine the impact of mr entirely are there some cases now i think that's are still valid with respect to allahabad why can't they always law that says that ohio would treat that differently so what you're saying basically then is that is that all that business in mr big if it hadn't been in the absence of the later legislation that's not before us was really a tempest in a teapot i think so your honor anything i think it well for judge for judge call well it did because he'd found that the trustee did have the power to invalidate the mortgage you're disagreeing with judge that's correct i think the judge walters and the bapak had it right and i'm saying is you're now agreeing that that means that all that mess or litigation was was tilting against windmills and had no real effect on the party's rights with respect to mortgages that's correct that's correct so i would i would urge this court to affirm the where the court said a judgment in creditors not a bona fide purchaser for value and the dow case i think from nine hundred twelve which said the same thing the distinction we have to make with white is the judgment creditors in that case pete actually that they weren't lien creditors because we didn't pass the judgment lien statute until one thousand nine hundred twenty seven and of course recording statutes were not in place with regard to be of peace status in the eighteen hundreds  was a form of them but because we didn't have judgment lien the judgment lien statute at that point we would not have had bona fide purchaser status for judgment creditor's in the eighteen hundreds so it's our view that white has effectively been overruled with regard to i do agree that judge walters decision was deftly written the problem with it is simply just wrong i sorry to be that blunt but judge walter relied on the platter of old single witness bad acknowledgment cases that are no longer the law in ohio because of thirteen zero one four zero one and judge caldwell i think recognized the fact that constructive notice defeats all those powers that's why we had and i think that's what the kind of the trap that the bat fell into is how do we say priority well you know you have to cut the pieces the puzzle together to get to priority so while i have great respect for judge walters decision i think it didn't address bona fide purchasers in messer the decision applies to the whole world we didn't i argued that case before the supreme court we there was no inference that it will be applied to bona fide purchasers and the great irony is benefit of being a bone if b s p under ohio law so i think the key to messer is the fact that justice lansing are said twice in the decision look this this statute doesn't conflict with fifty three a one twenty five a and it doesn't conflict with any other provision of the hire advice code so that leaves us with the conclusion that judge caldwell reached in the bankruptcy court case which is it does apply the judgment when creditors if there are no other questions since i've had