[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re Messer, Slip Opinion No. 2016-Ohio-510.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-510

IN RE MESSER ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re Messer, Slip Opinion No. 2016-Ohio-510.] 

Mortgages―Recordation―Constructive notice―R.C. 1304.401 applies to all 

recorded mortgages in Ohio and provides constructive notice of existence 

and contents of recorded mortgage that was deficiently executed under R.C. 

5301.01. 

(No. 2014-2036—Submitted October 14, 2015—Decided February 16, 2016.) 

ON ORDER from the United States Bankruptcy Court for the Southern District of 

Ohio, Eastern Division, Certifying Questions of State Law, No. 13-57467, 

Adversary Proceeding No. 13-2448. 

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SYLLABUS OF THE COURT

1. R.C. 1304.401 applies to all recorded mortgages in Ohio. 
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2. R.C. 1301.401 acts to provide constructive notice to the world of the existence 

and contents of a recorded mortgage that was deficiently executed under 

R.C. 5301.01. 

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LANZINGER, J. 

{¶ 1} In this case we are asked to determine whether R.C. 1301.401, which 

provides that the recording of certain documents provides constructive notice, 

applies to all recorded mortgages in Ohio and whether that statute provides 

constructive notice of a recorded mortgage that was deficiently executed under R.C. 

5301.01. We answer both questions in the affirmative. 

I. Case Background 

{¶ 2} As set forth in the facts supplied by the United States Bankruptcy 

Court for the Southern District of Ohio, Eastern Division, petitioners Daren and 

Angela Messer executed a promissory note and mortgage on November 26, 2007, 

in favor of Mortgage Electronic Registrations Systems, Inc., in which the notary 

acknowledgment on the mortgage was left blank, providing no indication as to 

whether the Messers executed the mortgage in front of a notary. On December 4, 

2007, the mortgage was recorded with the Franklin County Recorder with the 

notary section incomplete. In 2013, all interest in the mortgage was assigned to 

respondent JP Morgan Chase Bank, NA (“JP Morgan”). 

{¶ 3} The Messers later initiated a Chapter 13 bankruptcy and later 

commenced an adversary proceeding asking to avoid the mortgage as defectively 

executed under R.C. 5301.01. The bankruptcy court determined that its 

interpretation of R.C. 1301.401 would be dispositive in this case, but found no 

interpretation of that provision by any court. It accordingly certified to this court 

questions of state law concerning whether R.C. 1301.401 has an effect on the case. 

{¶ 4} We agreed to answer the two questions of state law certified by the 

bankruptcy court: 
January Term, 2016 

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“1. Does O.R.C § 1301.401 apply to all recorded mortgages in Ohio? 

“2. Does O.R.C. § 1301.401 act to provide constructive notice to the world 

of a recorded mortgage that was deficiently executed under O.R.C. § 5301.01?” 

141 Ohio St.3d 1452, 2015-Ohio-239, 23 N.E.3d 1194. 

II. Analysis 

{¶ 5} Because resolution of this case depends upon the clear language of 

the relevant statutes, our analysis begins by looking at that language. R.C. 

5301.01(A) sets forth the requirements for a mortgage in Ohio. It states: 

A * * * mortgage * * * shall be signed by the * * * mortgagor 

* * *. The signing shall be acknowledged by the * * * mortgagor * 

* * before a judge or clerk of a court of record in this state, or a 

county auditor, county engineer, notary public, or mayor, who shall 

certify the acknowledgement and subscribe the official’s name to 

the certificate of the acknowledgment. 

{¶ 6} R.C. 1301.401 provides that the recording of certain documents 

provides constructive notice: 

(B) The recording with any county recorder of any 

document described in division (A)(1) of this section * * * shall be 

constructive notice to the whole world of the existence and contents

of [the] document as a public record and of any transaction referred 

to in that public record, including, but not limited to, any transfer, 

conveyance, or assignment reflected in that record. 

(C) Any person contesting the validity or effectiveness of 

any transaction referred to in a public record is considered to have 

discovered that public record and any transaction referred to in the 
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record as of the time that the record was first * * * tendered to a 

county recorder for recording. 

(Emphasis added.) R.C. 1301.401(B) refers to “any document described in division 

(A)(1)” of that statute. R.C. 1301.401(A)(1) names “[a]ny document described or 

referred to” in R.C. 317.08. Included among the documents listed in R.C. 317.08 

are “[m]ortgages, including amendments, supplements, modifications, and 

extensions of mortgages, or other instruments of writing by which lands, tenements, 

or hereditaments are or may be mortgaged or otherwise conditionally sold, 

conveyed, affected, or encumbered.” R.C. 317.08(A)(19). 

A. R.C. 1301.401 applies to all recorded mortgages

{¶ 7} The Messers argue that R.C. 1301.401’s placement in the portion of 

the Revised Code consisting of Ohio’s Uniform Commercial Code (“UCC”) means 

that the statute applies only to transactions governed by the UCC and does not apply 

to mortgages, which they state are contracts governed by Ohio contract law. They 

reason that the legislature’s intention that R.C. 1301.401 does not apply to 

mortgages is evidenced by the fact that the statute appears in the UCC, rather than 

in Title 53 of the Revised Code, which covers real property. 

{¶ 8} We disagree with petitioners that R.C. 1304.401 applies only to 

commercial transactions governed by the UCC, and not to mortgages. The statute’s 

clear and broad language indicates that it applies to “any document described in 

division (A)(1)” of the section. R.C. 1304.401(A)(1) clearly states that any 

document described or referred to in R.C. 317.08 is included in the statute’s 

purview. R.C. 317.08(A)(19), in turn, explicitly includes mortgages. Based on this 

unambiguous statutory language, we hold that R.C. 1304.401 applies to all recorded 

mortgages in Ohio. 

 
January Term, 2016 

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B. The act of recording a mortgage provides constructive notice to the world of 

that mortgage, even if the mortgage was deficiently executed under R.C. 5301.01 

{¶ 9} The Messers argue that application of R.C. 1301.401 to recorded 

mortgages is inconsistent with R.C. 5301.25(A), which provides that all 

“instruments of writing properly executed for the conveyance or encumbrance of 

lands * * * shall be recorded in the office of the county recorder of the county in 

which the premises are situated” and that “[u]ntil so recorded or filed for record, 

they are fraudulent insofar as they relate to a subsequent bona fide purchaser 

having, at the time of purchase, no knowledge of the existence of that * * * 

instrument.” Thus, they argue, a mortgage does not provide constructive notice if 

it is not “properly executed.” 

{¶ 10} We do not agree. R.C. 5301.25(A) requires properly executed 

mortgages to be recorded and provides that until they are recorded they are deemed 

as fraudulent to a bona fide purchaser who has no knowledge of the existence of 

that mortgage. Rather than contradict this basic principle, R.C. 1304.401 simply 

provides that the act of recording a “mortgage” provides constructive notice to the 

whole world of the existence and contents of the mortgage document. No mention 

is made of whether the mortgage has been properly executed, whether it was 

required to be filed, or whether it is free from defects. If it is a “mortgage,” notice 

of the contents is provided. 

{¶ 11} The Messers also argue that R.C. 5301.01(B) and 5301.23(B) 

support their contention that R.C. 1301.401 does not provide for constructive notice 

of deficiently executed mortgages that have been recorded. R.C. 5301.01(B)(1) 

states that the recording of a mortgage executed prior to February 1, 2002, and not 

acknowledged in the presence of, or not attested by, two witnesses constitutes 

constructive notice of the mortgage. R.C. 5301.23(B) provides that the omission 

of the current mailing address of the mortgagee does not affect the validity of the 

mortgage or render it ineffective for purposes of constructive notice. The Messers 
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reason that the existence of these statutes shows that if the General Assembly 

wished to create constructive notice for deficiently executed mortgages, it would 

have done so in R.C. Chapter 5301. They further argue that these statutes preclude 

any other types of deficient mortgages from providing constructive notice. 

{¶ 12} We disagree. These statutes set forth two instances in which the 

recording of a deficiently executed mortgage will provide constructive notice: (1) 

pre-February 1, 2002 mortgages that were not acknowledged in the presence of, or 

not attested by, two witnesses and (2) mortgages that omit the current mailing 

address of the mortgagee. The existence of these two statutes does not preclude the 

General Assembly from recognizing other instances in which the recording of a 

deficiently executed mortgage can provide constructive notice. Neither R.C. 

5301.01(B) nor 5301.23(B) contains language preventing constructive notice for 

other types of deficiently executed mortgages. The portion of R.C. 1304.401 

stating that the act of recording provides constructive notice to the whole world of 

the existence and contents of the mortgage document is completely compatible with 

R.C. 5301.01(B), R.C. 5301.23(B), and the rest of the Revised Code. Furthermore, 

as noted above, the fact that R.C. 1304.401 is not located in R.C. Chapter 5301 does 

not preclude it from applying to mortgages. For these reasons, we hold that R.C. 

1301.401 acts to provide constructive notice to the world of a recorded mortgage 

that was deficiently executed under R.C. 5301.01. 

III. Conclusion 

{¶ 13} We hold that R.C. 1301.401 applies to all recorded mortgages in 

Ohio. We further hold that that statute acts to provide constructive notice to the 

world of the existence and contents of a recorded mortgage that was deficiently 

executed under R.C. 5301.01. We accordingly answer each question of state law 

certified by the bankruptcy court in the affirmative. 

So answered. 
January Term, 2016 

7

O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and

O’NEILL, JJ., concur. 

_________________ 

Fisher, Skrobot & Sheraw, L.L.C., Brett R. Sheraw, and John C. Ridge, for 

petitioners. 

Fesenmeyer Law Offices, L.L.C., Danielle R. Weinzimmer, Thomas M. 

Fesenmeyer, and Courtney A. Cousino, for petitioners. 

Plunkett Cooney P.C. and Amelia A. Bower, for respondent. 

McFadden & Freeburg Co., L.P.A., Monica E. Russell, and Donald P. 

McFadden, in support of respondent for amicus curiae, Ohio Land Title 

Association. 

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