good morning your honor is may have pleased that he's an attorney and is the trustee good morning your owners may please the court your honor is this issue involves an appeal arising under the statutes of the state of georgia and all parties agree that a mortgage or security he was certain defects in at this station or acknowledgement can be avoided by a bankruptcy trustee in a federal bankruptcy because the trustee has the rights and powers of a bona fide purchaser under applicable law all and applicable law in this case your owner's is georgia law so has stood the statues dealing with security deed involved in this case all parties also agree that we are dealing with the statute says they were worded prior to the tw y fifty one georgia to sixty eight from eight hundred and seventy four if it was paraphrasing the same statute or the predecessor of this statute that time and it said you need two witnesses don't have a more recent interpretation and a few cases that your client the case that case involved a situation where there was no testing witness whatsoever or where in that knowledge of what was argued to be able to cure it the patent thief dicta in that case just paraphrased the statute and said well you tested and tested or acknowledges excuse me a tested or acknowledgement is all the statute says but at the same case also as a statement in order for a deed to be on record will form it must be attested by an official witness and an unofficial wit misstating their own holding and they are they are actually quoting from their own holding their quoting from gordon one and gordon one do not hold that i might not be very popular of my former colleagues if i read an opinion saying that they have misunderstood their own holding understand your own but that the facts of gordon won or that there was no testing witness whatsoever now going back to judge wilson's question the reason we can't just look at this pla language of the statute is it's not necessarily plain it words attested or acknowledged are used in two places one has to in a testing officer and again has to at least one other witness so that they w in the wording in the statute is such that it appears the only need you can attest you can have a notary attest or acknowledge and you can have one other witness non official witness the test or acknowledge that it actually makes an acknowledgement is an official act suggest that there is any particular and infirmity with the the two parties who the other side says are responsible for that agitation or acknowledgement i thought your your argument was purely problem in the statute it's not a problem that i'm suggesting exists in this in the security was excused and was signed by only one unofficial witness that witness is not a notary there's nothing on the on the signature pa says that witnesses and those are in the what is argued that the witnesses and notary she just signed and there's two signature lines for two witnesses and she signed the same in both places on a separate pages where the notary act of acknowledgement is that for so the borrower's after signing in the presence of a single witness there's only one witness that signed that age signed sealed and delivered in the presence of a single unofficial when the borrowers then went before a notary  that's my signature we want you to acknowledge and execute in that acknowledgment and so there is an official act of a notary on this document but the reason that we assert that to the testing witnesses there needed is this statute says and in that case that real property at least one other witness and that language has been in there since at least eight hundred and twenty seven and the reason that language has been in there is this statute quoted a minute ago is four thousand four hundred and fourteen dash thirty three and that statute says and in the case of real property at least one other witness since the states traces back almost to the days when georgia was a colony back in the day before uniform commercial code or typewriters or xerox paper deeds on personal t such as bales of cotton had to be recorded in order  for the creditor to protect their interest in those bales of cotton and so this was the legislature said that has to personal to only one witness is needed and in that case the real property i want at reference that crops don't become personal property until they are detached from the soil when they're in the soil they are real property and has to real property you need two witnesses and has two personal property you need one witness all other deeds it must be attested by the signature of two witnesses one of which must be an officer authorized to attest registerable instrument section nine hundred and sixty dollars of the same treatise as an acknowledgement does not  the necessity of attestation but two and i think the problem we have is that as authoritative as that may generally be it's in pretty clear conflict with the language of the statute how do we with record ation of deeds and other instruments relating to real property that is really where you find the statute regarding and put in acknowledgment means and in that statute even within that statu states it has the statement this is forty four dash to dash fourteen hell ever nothing in this code section shall dispense with another witness squared additional witnesses required so you had this reference and forty four days to that again references of controlling evidence can clear in control and precedent that mandates the reversal of the court's below but at the very least based upon tender and the actual confusing wording of this statute we good morning your honor is arthur abs from one bulb on dickinson together with the austin james from fidelity national law group and several of my colleagues from wobbler in the gallery this morning we represent wells fargo national bank and this and this  appeal think judge wilson and judge grant you've all narrowed down the issues pretty well towards the end of the trustees council's presentation he talked about pender and it being an authoritative treatise in the state of georgia which is which is generally true and i think one thing that the court is aware of that in two thousand and fifteen the recording statutes in georgia were significant legal it's very interesting that pender notes explicitly and section tw record it should be signed by the maker and attested by an officer as provided in session fifteen but pender states this amendment deletes the provision that allowed a deed to secure debt to be proved in the manner prescribed for mortgages which allowed a signature to be acknowledged the sole issue in this case is whether or not the security deed executed by the weeks was a duly admitted to record in the henry county superior court ga law is  recent relatively recent within the last decade georgia supreme court decisions one of which the gorn one was certified by the northern district board into a certified by the by this court in them and the reason i asked that question is if that's the case why recently held that a security deed is duly filed recorded indexed only if the clerk responsible for recording to terminate from the base of the document that it's in the proper form for recording meaning that it is attested or acknowledged by a proper officer and in the case of real property and additional and this case you've got an acknowledgment by a notary public or names are nice foster and you have at test ation from an unofficial witness named  course sylvia corsi yes sir and so you have both of those requirements met no i said that at the outset of my presentation the statutes are clear you know i think one thing that's worth talking about is what is a security in georgia it's a creation a statute it's eight hundred and forty four one thousand four hundred and sixty it's a special type of it's a special type of deed that is related to a mortgage it's in it's own section of the code and that's something that's been long recognized by georgia statutes related to deeds of bargain sale but by special provisions wire requiring that it be attested or proved in the manner prescribed by mortgages and if you look at our modern statute or at least before two thousand and fifteen which was which is o c g thousand four hundred and sixty one it states that in order to admit deeds to secure debt or bills of sale to record they shall be attested or proved in the manner prescribed by law for mortgages so the only requirement under our statutes in georgia to administer curity deed record is that it be it tested or approved in the manner required for mortgages that language approved is somewhat archaic but i think we're in agreement that it means acknowledged and when you roll over to the recording statute related to mortgages language is very clear as your honour's pointed out during the appellant's argument or presentation in order to admit him we're going to record it must be attested by acknowledged before an officer is prescribed for the of deeds and bargain of sale so that's requirement number one and we've got that because we've got the acknowledgment of miss foster as to the borrower signatures so it's present the reference to the as prescribed for and bargain and sale is a reference to the type of officer that has to sign the how to station or acknowledgement and that's something that the georgia supreme court in gorton one recognized that that's what that references to and the nd part of the mortgage believes so the requirements are met in the statutes clear because it's been do we because the because the requirements are met the security deed was duly recorded by the superior court of henry county which does provide constructive notice and defeats the avoidance argument being made under the bankruptcy code we've we've kind of touched on the cases already but there is a there is a plethora of authority the gordon one and gordon two is as we've talked about gordon to actually says that the court held that either one of these two things is acceptable and that's actually exactly what happened there's a case from one thousand nine hundred and six the leeds building company case that cited in our briefing that discusses the exact confusing because it would permit a secondary witness to a test instead of acknowledged but that's not the case there's absolutely no restriction anywhere that there could not be two acknowledgments as  georgia law is clear in controlling you've got plenty of authority from the georgia supreme court as judge grant pointed out her former colleagues had it stated stated specifically that they held something and that is certainly enough for this court to make a princip conclusion and declined to certify the question and the law in fact is so clear just using normal rules of statutory interpretation and you know wearing the georgia case law on top of this that the bankruptcy court got it right and should be   but those cases cite that stated in connection with cases that involved security what's your response to the fact that the georgia general assembly amended the statute following court into to that to use banks and other companies lenders reason you have to look to forty four dash two is that because the statutes already mosaic you can't just look to one place and they can demonstrate this all it's said prior to two thousand and fifty where as you need to testing witnesses now that's very clear unfortunately mortgage statute is not as clear but forty four dash thirty three just says you need two witnesses it doesn't say anything about an acknowledgment in fact it doesn't say anything about needing an official witness so the demonstrate that is a mosaic you have to look look to forty four dash two which is where you find these requirements for what can make your instrument or any thirty three does reference didn't what is needed for the security detail but it cannot be the only place you look for what is needed to record the security d in because chapter two is cold recreation the deeds to the land and other instruments and again you have that reference in there that seems to be referring back to the mortgage sections because it uses the same terms that in the cape and nothing in this statute will obviate the need twenty two witnesses where two are required but if we had a statute that sad for all houses require two signatures and then there is a different set of that said deeds for break out as require one signature statute in question is ambiguous because it says attested or acknowledged by an officer and in the case and planned attested or acknowledged by at least one additional witness that would mean you wouldn't might not need any witness whatsoever under the way that's worded you could have two acknowledgment and that's i don't think anybody would argue that that's acceptable and in fact gordon one which say otherwise thank you