United States Court of Appeals

For the First Circuit 

No. 14-2115 

IN RE: ALVARO M. PEREIRA, 

Debtor. 

___________________ 

BANK OF AMERICA, N.A., 

Appellee, 

v. 

DEBORA A. CASEY, Chapter 7 Trustee for Alvaro M. Pereira, 

Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. George A. O'Toole, Jr., U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lynch and Thompson, Circuit Judges. 

 Adam C. Ponte, with whom Mark S. Foss and Fletcher Tilton PC 

were on brief, for appellant. 

 Mark B. Johnson, with whom Kathleen M. Heyer and Johnson & 

Borenstein, LLC were on brief, for appellee. 
June 26, 2015 
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LYNCH, Circuit Judge. The outcome of this federal 

bankruptcy case turns on interpretations of two different state 

statutes, each of which concerns defects in real estate titles. 

In time, those interpretations may affect considerable numbers of 

Massachusetts foreclosure proceedings. In this case, those 

interpretations affect who will benefit from the estate's real 

property assets: a bank, or the debtor's other creditors as 

represented by a bankruptcy trustee. For the reasons stated below, 

we decide to certify two questions to the Supreme Judicial Court 

(SJC) of Massachusetts. 

Debora Casey, a Chapter 7 bankruptcy trustee, filed this 

action to avoid a mortgage held by Bank of America. 11 U.S.C. 

§ 544(a)(3). The parties both assume that the 2005 mortgage 

contains a material defect: the certificate of acknowledgement 

does not include the names of the mortgagors. See Mortg. Elec. 

Registration Sys., Inc. v. Agin (In re Giroux), No. 09-CV-10988-

PBS, 2009 WL 3834002, at *2 (D. Mass. Nov. 17, 2009) (applying 

Massachusetts law to conclude that the omission of the mortgagor's 

name in the certificate of acknowledgment rendered the mortgage 

materially defective). After the mortgage was recorded, the notary 

on the mortgage, presumably at the behest of the bank, executed an 

affidavit under Mass. Gen. Laws ch. 183, § 5B, later recorded, 

attesting that the debtors had signed the mortgage personally and 
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voluntarily. The debtors went into bankruptcy later that year, in 

2012. 

The legal issues presented are whether, under 

Massachusetts state law, that § 5B affidavit can cure the defective 

acknowledgement, or otherwise provide constructive notice to a 

bona fide purchaser. If not, the bankruptcy trustee can avoid the 

mortgage under 11 U.S.C. § 544(a)(3). 

The state law questions in this case are dispositive, 

and they are unresolved by the Massachusetts SJC. They also 

implicate "significant policy concerns better suited for 

resolution by the" SJC. Easthampton Sav. Bank v. City of 

Springfield, 736 F.3d 46, 48 (1st Cir. 2013). Accordingly, we 

certify the questions for resolution by that court. See Mass. 

S.J.C. R. 1:03. 

I. 

On December 27, 2005, Alvaro and Lisa Pereira refinanced 

their property in New Bedford, Massachusetts, by granting a 

mortgage to Bank of America in the principal amount of $240,000. 

The Pereiras executed the mortgage document, initialing each page. 

The document's certificate of acknowledgement, which affirms that 

the mortgagors actually executed the documents for the mortgage 

"voluntarily for its stated purpose," omitted their names. That 

document was recorded the next day. 
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 On January 19, 2012, the attorney who notarized the 

mortgage documents recorded an affidavit purportedly executed 

pursuant to Mass. Gen. Laws ch. 183, § 5B. That statute permits 

recording of affidavits that "will be of benefit and assistance in 

clarifying the chain of title" to certain land. Id. The 

affidavit, dated January 11, 2012, states that the attorney had 

witnessed the Pereiras' signatures to the mortgage, and that they 

signed it voluntarily. The attorney stated that his omission of 

the Pereiras' names from the certificate of acknowledgement was 

"inadverten[t]." 

Alvaro Pereira filed for Chapter 7 bankruptcy on July 

10, 2012. On September 12, the bankruptcy trustee filed the 

complaint in this case, seeking to avoid the mortgage for the 

benefit of the bankruptcy estate pursuant to the "strong-arm 

provision" of 11 U.S.C. § 544(a). That provision allows a 

bankruptcy trustee to preserve the value of a mortgage for the 

benefit of the bankruptcy estate if the mortgagee failed to perfect 

its claim against a bona fide purchaser. 11 U.S.C. § 544(a)(3). 

If the mortgage is voidable by a bona fide purchaser, the trustee 

may preserve the avoided mortgage for the benefit of the bankruptcy 

estate. Id. §§ 544(a), 551; see also DeGiacomo v. Traverse (In re 

Traverse), 753 F.3d 19, 27-28 (1st Cir. 2014). 

Bank of America moved for summary judgment in bankruptcy 

court on April 16, 2013, and the Trustee filed an opposition and 
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cross-motion for summary judgment on May 31.1 The bankruptcy court 

found in favor of the Trustee on June 21, 2013. In its view, the 

mortgage was defective, the defect had not been cured, and so the 

Trustee could avoid the mortgage. Though the court believed such 

a defect is curable, the court was not convinced that the bank 

"can just file [an] attorney's affidavit which solves the problem 

of a defective acknowledgement." It pointed out that there was a 

statute, Mass. Gen. Laws ch. 184, § 24, which it read to explicitly 

provide a procedure for curing defects in title, including a 

defective certificate of acknowledgement, and that statutory 

procedure had not been used. 

On September 26, 2014, the district court reversed. Bank 

of Am., N.A. v. Casey, 517 B.R. 1 (D. Mass. 2014). It held that 

the affidavit was properly filed under Mass. Gen. Laws ch. 183, § 

5B. Id. at 3. In its view, the affidavit "performed all the 

necessary functions of a proper acknowledgement" and cured the 

defective mortgage. See id. at 5. This appeal followed. 

II. 

The SJC permits a federal court to certify questions of 

state law that are "determinative of the cause then pending in the 

certifying court" but for which there is no controlling precedent 

 1 The debtor is not participating in this case. 
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by the SJC. Easthampton Sav. Bank, 736 F.3d at 50 (quoting Mass. 

S.J.C. R. 1:03); see also, e.g., Ins. Co. of Pa. v. Great N. Ins. 

Co., ___ F.3d ___, 2015 WL 3440342, at *1 (1st Cir. May 29, 2015); 

Bos. Gas Co. v. Century Indem. Co., 529 F.3d 8, 23-24 (1st Cir. 

2008). Such is the case here.2

A. Determinative Questions of State Law 

Though it is an open question of Massachusetts law, Bank 

of America does not argue that the defective mortgage document, 

standing alone, was enough to prevent the Trustee from avoiding 

the mortgage. Casey, 517 B.R. at 3; see In re Giroux, 2009 WL 

3834002, at *2. Rather, the bank makes two arguments in reliance 

on the § 5B attorney affidavit: that the affidavit cured the defect 

in the mortgage, and that, in any event, the affidavit provided 

"constructive notice" as good against a bona fide purchaser, and 

so as good against the Trustee. Under 11 U.S.C. § 544, the Trustee 

may avoid mortgages voidable by "a bona fide purchaser of real 

property." Id. § 544(a)(3). Each of these arguments presents a 

question of Massachusetts law.3

 2 At oral argument, the parties agreed to the court's proposal 

of certification. See Easthampton Sav. Bank, 736 F.3d at 50 n.4. 

We subsequently afforded them an opportunity to propose language 

for the certification questions.

3 The bona fide purchaser provision "is generally dependent 

on the substantive law of the state governing the property in 

question." Bankruptcy Law Manual § 9A:7 (5th ed. 2015); see SotoRios v. Banco Popular de P.R., 662 F.3d 112, 116 (1st Cir. 2011) 

("[T]he bankruptcy trustee is vested with the status of a 
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First, the bank argues that the affidavit was within the 

authority of a state statute to cure the defect in the mortgage. 

Section 5B of chapter 183 of the Massachusetts General Laws 

provides the following: 

Subject to section 15 of chapter 184, an 

affidavit made by a person claiming to have 

personal knowledge of the facts therein stated 

and containing a certificate by an attorney at 

law that the facts stated in the affidavit are 

relevant to the title to certain land and will 

be of benefit and assistance in clarifying the 

chain of title may be filed for record and 

shall be recorded in the registry of deeds 

where the land or any part thereof lies. 

The parties agree that the affidavit satisfies most of 

§ 5B's requirements, but they disagree over whether it "will be of 

benefit and assistance in clarifying the chain of title." The 

district court concluded that "[w]ith the filing of the new 

affidavit, all things necessary required for proper recording were 

in place . . . ." Casey, 517 B.R. at 5. 

 

hypothetical bona fide purchaser of real property, and may 

ordinarily avoid any transfer of the property or obligation of the 

debtor to the extent allowed under state law."); see also, e.g., 

Crane v. Richardson (In re Crane), 742 F.3d 702, 706 (7th Cir. 

2013); Argent Mortg. Co. v. Drown (In re Bunn), 578 F.3d 487, 488-

89 & n.1 (6th Cir. 2009); Hamilton v. Wash. Mut. Bank FA (In re 

Colon), 563 F.3d 1171, 1174 (10th Cir. 2009). Accordingly, whether 

a subsequent purchaser would have constructive notice of the 

Pereiras' mortgage, such that it would be good against the 

purchaser and is good against the Trustee, is an issue of 

Massachusetts law. The parties do not argue to the contrary. 
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The Trustee argues that a ch. 183, § 5B, affidavit cannot 

cure the defect for two reasons. First, she argues that because 

the underlying mortgage document is defective, there is no transfer 

of title to be "clarified" by an affidavit within the meaning of 

the statute. Cf. Eaton v. Fed. Nat'l Mortg. Ass'n, 969 N.E.2d 

1118, 1133 n.28 (Mass. 2012) (suggesting that a mortgage holder 

could use a § 5B affidavit to prove its authority to conduct a 

foreclosure sale by showing "that it either held the note or acted 

on behalf of the note holder at the time" of sale). To the extent 

a § 5B affidavit is available to "cure" defects through 

"clarification," she also argues that the "clarify" language means 

that § 5B affidavits are only available to cure de minimus defects 

like scrivener's errors, not material ones. 

Second, the Trustee reads a different statute, Mass. 

Gen. Laws ch. 184, § 24, to provide two methods for curing a 

defective acknowledgement in an instrument conveying an interest 

in land: (a) after "ten years elapses after the instrument is 

accepted for record," or (b) if "a proceeding is commenced on 

account of the defect . . . and notice thereof is duly recorded." 

Since the Trustee reads § 24 to explicitly provide a means to 

resolve a situation like this one, she argues that it must be the 

sole means of doing so, and that a § 5B affidavit is inadequate.4

 4 We are aware of no Massachusetts law on point deciding 

whether the latter clause of § 24 is better read to provide a 
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The bank replies that § 5B affidavits can cure both 

substantive and technical defects in the mortgage note, and that 

its use in this case cannot be distinguished from Eaton. The bank 

also argues that § 24 is simply a statute of repose, not "the 

prescription of a method for curing defects in instruments of 

title." Casey, 517 B.R. at 4 (agreeing with that argument). 

Determining whether a § 5B affidavit can cure a defective 

mortgage acknowledgement is an issue of state law that turns on 

the interpretation of two state statutes, § 5B and § 24. 

The bank's alternative argument is that the affidavit 

makes the Trustee chargeable with constructive notice of the 

mortgage.5 In general, "constructive notice is a positive rule of 

state law that permits the prior purchaser to gain priority over 

a latter purchaser, regardless of whether the latter purchaser 

really knows of the prior purchase." Stern v. Cont'l Assurance 

Co. (In re Ryan), 851 F.2d 502, 506 (1st Cir. 1988) (emphasis 

deleted). 

 

remedy to cure any defect, or to state that a defective instrument 

is not made effective by the ten-year period of repose if a 

proceeding to escape the obligation was initiated before the 

passage of ten years. 

5 Bank of America does not argue that the Trustee is bound by 

the mortgage because it had actual knowledge of the mortgage. See 

11 U.S.C. § 544(a) (explaining that the trustee may avoid certain 

transfers of property and obligations "without regard to any 

knowledge of the trustee or of any creditor"). 
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Anyone purchasing the New Bedford property would have 

discovered the affidavit and mortgage, the bank argues, thereby 

receiving notice of the mortgagee's claim. The affidavit itself 

identifies the parties, the amount of the loan, and the address of 

the property. The district court agreed, observing that the 

affidavit "performed all the necessary functions of a proper 

acknowledgement" under Massachusetts law: it identified the 

mortgage and affirmed that the Pereiras executed the 

acknowledgement voluntarily. Casey, 517 B.R. at 5. 

 On appeal, the Trustee argues that the affidavit cannot 

provide constructive notice because it is outside the chain of 

title. The defective mortgage alone cannot provide constructive 

notice, because it cannot be legally recorded. See Allen v. Allen, 

16 N.E.3d 1078, 1084-85 (Mass. App. Ct. 2014) (citing Graves v. 

Graves, 72 Mass. 391, 392-93 (1856)). If a defective mortgage 

cannot provide constructive notice of itself, the Trustee argues, 

an affidavit that merely references a defective mortgage cannot 

provide constructive notice. See In re Ryan, 851 F.2d at 511-12 

(holding that a properly recorded mortgage assignment could not 

cure a defectively recorded mortgage because it was not within the 

chain of title, and so could not provide constructive notice of 

either); Mbazira v. Ocwen Loan Servicing, LLC (In re Mbazira), 518 

B.R. 11, 22-23 (Bankr. D. Mass. 2014) (holding that a certificate 
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of title noting a mortgage cannot provide constructive notice of 

the mortgage). 

 The outcome of these two state law arguments will control 

the case. If a § 5B affidavit can cure a defect in a mortgage's 

certificate of acknowledgement, or if it can provide constructive 

notice to a subsequent purchaser, the Trustee cannot avoid the 

mortgage under her 11 U.S.C. § 544(a)(3) strong-arm powers. If 

the affidavit is not able to perform either of those functions, 

the Trustee can avoid the mortgage. 

B. Controlling SJC Precedent and Other Considerations 

The parties have not suggested that Massachusetts courts 

have given reasonably clear guidance -- much less determinative 

precedent -- on how we should resolve these questions. Most of 

the cases the parties cite to us are decisions of federal courts. 

In considering whether we should nonetheless "make[e] an 

'informed prophecy'" rather than certify the question to the SJC, 

we are mindful of the risks of an erroneous decision. Ins. Co. of 

Pa., 2015 WL 3440342, at *5 (quoting Showtime Entm't, LLC v. Town 

of Mendon, 769 F.3d 61, 79 (1st Cit. 2014)). "[T]he outcome of 

this case has the potential to impact thousands of outstanding and 

future mortgages . . . ." Easthampton Sav. Bank, 736 F.3d at 52; 

see id. (weighing "the dollar amounts involved, the likely effects 

of a decision on future cases, and federalism interests" in 

deciding whether to certify questions). 
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As the bankruptcy court observed, "[t]he latest bunch of 

cases that we have with defective acknowledgements are increasing 

in number. From what I've seen on my docket, there's lots more of 

them yet to come." This case does not implicate only situations 

in which a § 5B affidavit has already been recorded to cure a 

defective acknowledgement, but also situations going forward. 

Further, if § 5B affidavits can cure the sort of material defect 

at issue here, future mortgagees may argue that § 5B affidavits 

can cure other material defects. 

If that outcome were clearly correct under Massachusetts 

law and policy, we might nonetheless decide the case. But this 

case is not one "in which the policy arguments line up solely 

behind one solution." Easthampton Sav. Bank, 736 F.3d at 52 

(quoting Ropes & Gray LLP v. Jalbert (In re Engage, Inc.), 544 

F.3d 50, 57 (1st Cir. 2008)) (internal quotation mark omitted). 

On the one hand, as the district court reasoned, the Trustee's 

position requires agreeing that "a correcting § 5B affidavit 

recorded fifteen minutes after the Pereiras had left the registry 

would be ineffective to cure the defect that existed here. There 

would be no useful purpose served by such a rule." Casey, 517 

B.R. at 5. On the other hand, as the Trustee observes, the bank's 

position allows the mortgagee to materially alter the mortgage by 

modifying the certificate of acknowledgement without the assent of 

the mortgagor. Functionally, it is no different than allowing the 
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notary to correct the acknowledgement and re-record the mortgage 

without the mortgagors' assent, a practice generally rejected. 

See Logan v. WMC Mortg. Corp. (In re Gray), 410 B.R. 270, 277 

(Bankr. S.D. Ohio 2009) ("[T]he vast majority of courts considering 

the issue . . . have held that an attempt by a notary public or 

other public official to correct a certification of 

acknowledgement after the document on which it appears has been 

recorded is void absent re-acknowledgment by the grantor."). 

"Given the competing considerations implicated by this 

question of state law and policy," the significance of the 

question, its determinative role in this case, and the lack of 

clear guidance from the SJC, certification is the appropriate 

course. Ins. Co. of Pa., 2015 WL 3440342, at *1. 

III. 

For the above reasons, we certify the following 

questions of Massachusetts law to the Massachusetts Supreme 

Judicial Court: 

1. May an affidavit executed and recorded 

pursuant to Mass. Gen. Laws. ch. 183, § 5B, 

attesting to the proper acknowledgement of a 

recorded mortgage containing a Certificate of 

Acknowledgement that omits the name of the 

mortgagor, correct what the parties say is a 

material defect in the Certificate of 

Acknowledgement of that mortgage? 

 

2. May an affidavit executed and recorded 

pursuant to Mass. Gen. Laws. ch. 183, § 5B, 
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attesting to the proper acknowledgement of a 

recorded mortgage containing a Certificate of 

Acknowledgement that omits the name of the 

mortgagor, provide constructive notice of the 

existence of the mortgage to a bona fide 

purchaser, either independently or in 

combination with the mortgage? 

 

"We would also welcome any additional observations about 

relevant Massachusetts law that the [SJC] may wish to offer." See 

Bos. Gas Co., 529 F.3d at 24; see also In re Giroux, 2009 WL 

3834002, at *2. The Clerk of this court is directed to forward to 

the SJC, under the official seal of this court, a copy of the 

certified questions and our opinion in this case, along with copies 

of the parties' briefs and appendix, and any supplemental filings 

under Rule 28(j) of the Federal Rules of Appellate Procedure. We 

retain jurisdiction over this appeal pending resolution of the 

certified questions. 

So ordered.