consolidate extend in change interest rates were not properly acknowledged in the documents that were recorded in the city register and how south point against john from the second department in two thousand and sixteen which ends as that like with regard to a fault signing or something you know that go to the absence of the notary's stamp that that case was a situation where the affidavit was missing all of the notary's information and the court rejected the affidavit because of that deficiency that there was an affidavit offered in court right yes so you say that  that then goes to that then he speaks to the adequacy of the acknowledgment with regard to the recording of the docking yes so it's a situation where the  or the stamp from the notary was completely missing and the court rejected the concept that because of that deficiency it it could still be valid the court rejected it as being invalid because touch inconsistent with the plain language section so there is a small inconsistency there that the courts the courts that have applied that language of one thirty seven and and my adversaries are pointed out several of them in my knowledge once was inappropriate merely because your signature can't be read jurors in law illogical now just upset my grandmother greatly now no judge i think there's a combination of factors here which is you cannot determine from a couple of straight lines circles however you want to describe the illegible signature here whether or not the person who actually signed that was a notary what their identification was whether it's generally become apparent with regard to the notary the notary stamp does appear on the two fifty five affidavit the two fifty five affidavit is not part of the semen is not part of the mortgage it's a separate document it's not part of the acknowledgment that's required to be recorded with the sema and with the mortgage becomes really an opportunity for devil to meet with regard to the legitimacy of the recording of mortgages doesn't that exactly what one thirty seven tries to avoid now other words it says you know the notary forgets to put his or her stamp on the on the knowledge with regard to the sign the signatures on the bottom of the mortgage that doesn't go to the validity of the bond in the mornings in that one thirty seven so that that is what one thirty seven says i that's in the mortgage that recorded in the county clerk got to make sure that in the hundreds of thousands of mortgages that are recorded annually in the state of new york that where formalities are required for a reason and the courts the court of appeals why then one thirty seven what did the blood just like you do why did what why did the legislature do that because that deals with that mean what does one thirty seven me n if i can go back to the bernie words bernie against buzzword case that i had started with it's a situation where dates included by a notary weren't in weren't legible but the rest of the information was there or there some other technical technical defect that shows up in the notarization but you can still determine that yes in fact there was an authorised officer who did take the acknowledgment and has identified themselves as such we don't have that in this situation and that is one of the anti fraud provisions that the court of appeals recognized as far back as eight hundred ninety as being a problem with a failure to present that for recording and prevented it as in at one thirty seven i believe was we're not trying to invalidate the mortgage we're trying to get to object to the recording of the mortgage the recording of the mortgage is not an action by the notary it is an action by the clerk the mortgage whether it's properly recorded or not will always remain a valid contract between the borrower and the lender the question is whether or not the absence of the knowledge and does not go to the legitimacy of the promise but to the record ability that exactly at least that's where we are of the document you are aware of the mortgage of course judge it's the defective recorded mortgages are recorded they're there you can find them the question is whether or not the document is properly executed in a form that meets the requirements for recording even if it is recorded and it does not meet those standards it has no value from a constructive notice standpoint that's been well established by multiple cases i think we've cited a bunch of them and in our briefs the the problem is the two ninety one of the real property law is a race notice concept and constructive notice only applies to documents that are properly recorded under the statute this document as it appears in the record is not properly recorded whether it could have been presented as a properly recorded or might not have been it doesn't matter the  properly recorded and it has to be stricken from the record then it ceases to be part of the record and the new deed that is recorded after it becomes the first in line conveyance of the property the mortgage if there is a proper copy of it and they presented one of the district court could be recorded but it would be second position behind the more recently recorded deed or that it moves us forward in the priority scheme as in the conveyance of the of the property without attacking the gentleman the the with me is william delaware from the firm of valen lightman belly and we represent the apple e wells fargo bank in this case your honour's the orders appeal from should be affirmed i think judge wesley has had every point that i wanted to make as far as this goes you have saved ten minutes of our time well well listen your honor as we know for a fact in the record we know that there was proper acknowledgment of these documents it's on a one or three one thirty nine and one forty one even if you don't consider that because this was a motion to dismiss and you look at the documents in there what you see are what you see is one you see a sort of smudge stamp you see two thousand and seven you see the signature you know that it was done he concedes that it was the now here's the question here's the question where is any prejudice to this man here you can see that it was not arise he concedes that it was notarized exactly iran where does he do well he says that he's not challenging the validity judge kershaw mentioned that as well he's telling you here what you put in the same he made a mistake he well i think what he's saying i think what he's saying is that the scan did not come through clearly enough and because he didn't find the stand proper enough he should jump my client and basically wipe out the mortgage this is a me so use me be clear you're talking about the copy of the document as opposed to the actual dark yes your honor the actual document there is no dispute that the actual documents were properly notarized and and as judge gershon found even if there was some issue with respect to the seam of the consolidated mortgage the tax affidavit that was contemporaneously executed did have that information so what we have here is basically what i think  arguing what he's arguing is that he doesn't want any liability for the existing first mortgage and he wants to get out under the strictures of three thirty nine c of the real property law which says that if you take out a common charge foreclosure you  second in line so he wants to get out of that that's very clear second thing is is that this is again an excellent taishan of form over substance is not my client i'm my client cannot be held chargeable i think because a scan of a properly recorded document did not show up clearly and also of course we know here we know from the truth mr plot is history just a matter of fact second case that i've had against him where he's try to get out of the existing first mortgage now if your honor just on a policy basis if you gave any credence to what this gentleman said then you could have a race to as you mentioned you could have a race down in the county clerk's office to start seeing whether  a notary stamp was smudged and then you could start challenging it it would open up the floodgates to to litigation to try to avoid debts that are very clear on the record so you are as if there are no mortgage well i thought well i think you can call themselves a purchaser in good faith but he was he was aware of it he had constructive knowledge of it he's trying to find a way to get out from that exact constructive knowledge that he had your honor by challenging by challenging the stamp is not a fact as one put you know one thirty seven one thirty seven i think if i may be reading it incorrectly or as but i think on the one thirty seven you don't even have to have the stamp there it's if you have recorded at all but he was aware of the mortgage he was if he admitted his awareness of the mortgage and it was on record what would his circumstance be that while i well that's an interesting hypothetical i'm not quite sure what the answer is to that although i do know in terms of a practical reality there is a lot of case law in most of it aside in his brief that if it's not acknowledged at all he could not be held responsible for it but that's not this case this case there's no dispute that it was acknowledged and the only issue actually i don't think it's an issue the only claim that he's making is that there was a smudge on the notary stamp that he couldn't read but with the pages that you cited again your arse is page one of three that's the signature page on the two thousand and five gap mortgage one thirty nine signature page on the consolidated mortgage and one forty one the signature page on the i can respond to some of the course the question of if you actually knew about the mortgage before it was before you purchased the property put you in an actual knowledge situation we don't know of any we have no knowledge outside of the written record of the county record the county clerk's records of the mortgage itself all have knowledge of the more the what we saw was the defectively recorded mortgage in the county clerk's record not a defective mortgage now we saw a defective mortgage the one missing the county the the notary stamp that's what's in the county clerk's records that's what we're bound by to just see the original i just see the scan we saw we supplied to the district court both an official copy with the county clerk's embossed a seal on it question did you see the riginal or digit see the scan we saw the scan and we also purchased the which one binds the original or the scan the original no the binding copy is what is record what was filed whatever the records are that you go on look exactly what was on file in the lead in the library the files are maintained digitally at this point judge and so if there is something wrong with the technology you think that affects the legitimacy of know that affects whether or not the mortgage is properly recorded in the record your original we don't have access to the original it was in their private files yes for now why not let me ask you this if the original bears the stamp and it's legible is your case if it if the recorded copy of the so that the illegibility comes from the process of the recording as opposed to the process of the execution our case would remain valid really yes he could so therefore because a county clerk adopts a technology that causes a smudge that affects a legitimately a recorded mortgage that your answer this is not a smudge this is the complete absence of the information ok your position is that if you if you establish your interest before the before they were of a mortgage that you have full awareness of is recorded you are prior to that and you would be faith as it prior to that if the cue that you are aware of and your purpose is to try to sneak ahead of it by getting in there before it's recorded you're a purchaser in good faith who has priority over the unrecorded at the time on record mortgage that you were fully aware of we have constructive notice only of the documents that are properly recorded if the document is not properly recorded the fact that we were talking just about constructive notice you had actual notice no actual notice of rick of of a document which you say was in in in improperly record we have we have we have actual notice of the recorded document as it is recorded the document only creates knowledge and only can in create knowledge on our part to the extent that it is properly recorded if it is not properly recorded it does not count as knowledge we don't get anything and we are charged with knowledge distinction between between one who is charged with constructive notice without having any awareness of any of these facts just because the record creates constructive notice as opposed to one who like you know those about the mortgage has actual knowledge of the mortgage and of its having been recorded but having been recorded with that with a defective  smudged copy of another's yes because the way the recording act works in the cases that have been interpreted in it for well over a century the only knowledge that you are charged with is the knowledge from that you gain from a properly recorded document if the document should not be in the record as it exists in the record then it is does not create knowledge on your part from a legal standpoint and it doesn't mean you are excused from the knowledge that you actually have you're treated as a person who knows nothing but is chargeable with what's in the record you know we are treated the same as a person who would have constructive knowledge of the  recorded the issue here is that because the document is not properly recorded nobody can be charged with knowledge of that document the fact that you learn about a document that is in the record but is not allowed to be in the record does not create a legal knowledge that you are chargeable with that is where the argument where is the the document that you say it is inadequate where's that in the record what page just on we can look at eight to eighty nine ok we can look at a three twenty and what do you make of the document it page a one of the three the knowledge with regard to the mortgage executed on june second two thousand  to ask anything it it is a document that a is not a public document b was not referenced anywhere in the in the contents motion to dismiss but because it is not a public document it doesn't bind anybody other than the parties to that specific agreement take it just say that this is not record that's not the recorded mortgage the record of mortgages were on the pages that i referenced the three twenty and two eighty nine that there's nothing further thank you