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SJC-11943

BANK OF AMERICA, N.A. vs. DEBORA A. CASEY, trustee.1

February 11, 2016. - June 16, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Mortgage, Validity. Real Property, Mortgage.

Certification of questions of law to the Supreme Judicial 

Court by the United States Court of Appeals for the First 

Circuit.

Adam C. Ponte for the defendant.

Mark B. Johnson for the plaintiff.

Lawrence P. Heffernan & Danielle Andrews Long, for The 

Abstract Club & another, amici curiae, submitted a brief.

BOTSFORD, J. We consider two questions certified to this 

court by the United States Court of Appeals for the First 

Circuit (First Circuit).

2 The questions, which arise in 

 

1 Of the bankruptcy estate of Alvaro M. Pereira.

2 Supreme Judicial Court Rule 1:03, as appearing in 382 

Mass. 700 (1981), provides in relevant part: "This court may 

answer questions of law certified to it by . . . a Court of 
2

connection with a bankruptcy proceeding, concern the power and 

effect of an affidavit of an attorney executed pursuant to G. L. 

c. 183, § 5B, in relation to a mortgage containing a defective 

certificate of acknowledgment. The two questions ask:

"1. May an affidavit executed and recorded pursuant 

to [G. L. c.] 183, § 5B, attesting to the proper 

acknowledgment of a recorded mortgage containing a 

Certificate of Acknowledgment that omits the name of the 

mortgagor, correct what the parties say is a material 

defect in the Certificate of Acknowledgment of that 

mortgage?

"2. May an affidavit executed and recorded pursuant 

to [G. L. c.] 183, § 5B, attesting to the proper 

acknowledgment of a recorded mortgage containing a 

Certificate of Acknowledgment 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?"

For the reasons that follow, we answer both questions yes, in 

certain circumstances.3

1. Background.

4 By quitclaim deed dated September 29, 

1999, Alvaro and Lisa Pereira (collectively, Pereiras) acquired 

title to the property located at 107 Colonial Drive in New 

 

Appeals of the United States . . . when requested by the 

certifying court if there are involved in any proceeding before 

it questions of law of this State which may be determinative of 

the cause then pending in the certifying court and as to which 

it appears to the certifying court there is no controlling 

precedent in the decisions of this court."

3 We acknowledge the amicus brief submitted by The Abstract 

Club and the Real Estate Bar Association for Massachusetts, 

Inc., in support of Bank of America, N.A. (bank).

4 The facts are taken from the record on appeal and are 

undisputed.
3

Bedford (property). On October 1, 1999, the deed was recorded 

with the Southern Bristol County registry of deeds (registry). 

On December 27, 2005, the Pereiras refinanced the property, 

granting to Bank of America, N.A. (bank), a mortgage in the 

principal amount of $240,000. The Pereiras individually 

initialed the bottom of each page of the mortgage agreement 

except the signature page, on which the full signature of each 

appears. Attorney Raymond J. Quintin also signed this page, as 

witness to the Pereiras' execution of the mortgage. The 

mortgage agreement contains a certificate of acknowledgment 

(acknowledgment) on a separate page. The Pereiras individually 

initialed the acknowledgment page at the bottom, but the 

acknowledgment itself is blank in the space designated for the 

names of the persons appearing before the notary public, and the 

Pereiras' names do not appear elsewhere on the page.5 Quintin 

 

5 The certificate of acknowledgment (acknowledgment) is a 

preprinted page of the mortgage agreement, and provides as 

follows:

"COMMONWEALTH OF MASSACHUSETTS Bristol County, ss.

"On this 27 day of December, 2005, before me, the 

undersigned notary public, personally appeared

"[BLANK]

"through satisfactory evidence of identification, which 

was/were MA Driver's Lic, proved to me to be the person(s) 

whose name(s) is/are signed on the preceding document, and 

acknowledged to me that he/she/they signed it voluntarily 

for its stated purpose.
4

notarized the acknowledgment, affixing his signature and his 

notary public seal.6 The mortgage agreement, with the 

acknowledgment included, was recorded in the registry on 

December 28, 2005.

On January 19, 2012, Quintin caused to be recorded in the 

registry an affidavit titled "Attorney's Affidavit, M.G.L. 

Ch. 183, Sec. 5B" (attorney's affidavit) that was dated 

January 11, 2012. The attorney's affidavit states in relevant 

part:

"I, Raymond J. Quintin, do under oath depose and say 

that I am a practicing [a]ttorney . . . ; that I have 

personal knowledge of the facts stated herein; that they 

are relevant to the title to land in the property described 

herein; and that this affidavit will be of benefit to 

clarify the chain of title; and do hereby under oath depose 

and say as follows:

"1. On December 27, 2005, I witnessed the execution 

of a [m]ortgage from Lisa M. Pereira and Alvaro M. Pereira 

to Bank of America, N.A. in the original principal amount 

of $240,000.00, for the property located at 107 Colonial 

Drive, New Bedford . . . . I subsequently recorded this 

mortgage at the [registry] on December 28, 2005, in Book 

7940, Page 14.

 

"My Commission Expires: July 10, 2009

"/s/ Raymond J. Quintin

"Notary Public, Raymond J. Quintin"

Words above that appear to be typed onto the preprinted page are 

identified by emphasis.

6 See note 5, supra.
5

"2. Through inadvertence, the names of the parties 

executing this mortgage, Lisa M. Pereira and Alvaro M. 

Pereira, were omitted from the notary clause.

"3. I hereby certify that I witnessed their 

signatures on said mortgage, that they provided 

satisfactory evidence of their identity to me, and that 

they acknowledged that they signed said mortgage 

voluntarily.

"Signed under the pains and penalties of perjury this 

11th day of January, 2012.

"/s/ Raymond J. Quintin

"Raymond J. Quintin"7

Approximately six months later, in July, 2012, Alvaro 

Pereira (debtor) filed a voluntary petition in the United States 

Bankruptcy Court for the District of Massachusetts, Eastern 

Division (Bankruptcy Court), seeking bankruptcy relief pursuant 

to Chapter 7 of the United States Bankruptcy Code, 11 U.S.C. 

§§ 301 et seq. (2012) (Chapter 7). In September, 2012, Debora 

Casey, the Chapter 7 trustee (trustee), filed an adversary 

complaint in the bankruptcy action, seeking to avoid the 2005 

mortgage granted by the Pereiras to the bank on the ground that 

the mortgage contained a material defect, namely, the omission 

of the mortgagors' names from the acknowledgment. On April 16, 

2013, the bank filed a motion for summary judgment, arguing that 

any material defect in the mortgage was cured by Quintin's 

attorney's affidavit. The trustee opposed the motion, and after 

a hearing, a judge in the Bankruptcy Court granted summary 

 

7 The affidavit is notarized by a notary public identified 

as Sara B. O'Leary.
6

judgment to the trustee, concluding that the material defect in 

the mortgage -- the incomplete acknowledgment -- was not cured, 

and could not be cured, by the attorney's affidavit. Ruling on 

the bank's appeal, a judge in the United States District Court 

for the District of Massachusetts (District Court) reversed and 

granted summary judgment to the bank, based on the judge's 

determination that Quintin's attorney's affidavit did clarify 

the chain of title and in substance cured the material defect in 

the mortgage created by the absence of the mortgagors' names 

from the acknowledgment. Bank of Am., N.A. v. Casey, 517 B.R. 1 

(D. Mass. 2014). The trustee appealed to the First Circuit, 

which concluded that a proper resolution of the appeal turned on 

undecided issues of Massachusetts law and accordingly certified 

to this court the two questions previously set out.

2. Discussion. The starting point for both of the First 

Circuit's questions is that a recorded mortgage, like the 

Pereiras,' that omits the names of the mortgagors from the 

mortgage's certificate of acknowledgment contains a material 

defect. Both questions then focus on whether and, if so, how an 

attorney's affidavit prepared pursuant to G. L. c. 183, § 5B 

(§ 5B), may affect the material defect and the recording of the 

mortgage.

8 Before turning to the questions, it is useful to 

 

8 General Laws c. 183, § 5B (§ 5B), provides in relevant 

part:
7

summarize certain principles relating to deeds and mortgages 

that provide context for the questions. 

Under Massachusetts law, 

"[t]itle to real estate may be transferred by a deed which 

has not been acknowledged or which contains a certificate 

showing a defective acknowledgement, and the deed is good 

against the grantor and his heirs and those having actual 

notice, G. L. (Ter. Ed.) c. 183, § 4 . . . ; but the 

grantor must acknowledge that he has executed the 

instrument as his free act and deed, and a certificate 

reciting that the grantor appeared before the officer 

making the certificate and made such acknowledgment must be 

attached to the instrument in order to entitle it to be 

recorded, G. L. (Ter. Ed.) c. 183, § 29; . . . so that 

notice of the conveyance shall be given to all the 

world. . . . The certificate of acknowledgment furnishes 

formal proof of the authenticity of the execution of the 

instrument when presented for recording" (citations 

omitted). 

McOuatt v. McOuatt, 320 Mass. 410, 413 (1946). Although 

mortgages are not specifically mentioned in G. L. c. 183, § 4,9

 

"[A]n 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."

9 General Laws c. 183, § 4, provides in relevant part:

"A conveyance of an estate in fee simple, fee tail or 

for life, or a lease for more than seven years from the 

making thereof, or an assignment of rents or profits from 

an estate or lease, shall not be valid as against any 

person, except the grantor or lessor, his heirs and 

devisees and persons having actual notice of it, unless it 
8

referenced in the quoted passage from McOuatt, that statute 

applies to mortgages, and requires that a mortgage be recorded 

in the appropriate registry of deeds in order to provide 

effective notice to anyone beyond the parties to the mortgage 

transaction and those with actual notice of it. See Tramontozzi

v. D'Amicis, 344 Mass. 514, 517 (1962). In other words, unless 

a mortgage is recorded, it does not provide constructive notice 

of its existence.

General Laws c. 183, § 29, also referenced in the quoted 

passage from McOuatt, provides:

"No deed shall be recorded unless a certificate of its 

acknowledgement or of the proof of its due execution, made 

as hereinafter provided, is endorsed upon or annexed to it, 

and such certificate shall be recorded at length with the 

deed to which it relates . . . ."

10

 

. . . is recorded in the registry of deeds for the county 

or district in which the land to which it relates lies."

10 The bank acknowledges that, as Tramontozzi v. D'Amicis, 

344 Mass. 514, 517 (1962), states, a mortgage must be recorded 

to provide constructive notice, but argues that G. L. c. 183, 

§ 29, applies only to "deeds" and not to mortgages. The bank is 

incorrect. Although § 29 expressly refers only to the recording 

of a deed, under Massachusetts law the effect of a mortgage is 

to transfer legal title of the mortgage property from the 

mortgagor to the mortgage holder, and in that sense a mortgage 

is a document of title transfer that operates as a deed. See, 

e.g., Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 575-576 

(2012), and cases cited. Accordingly, in order to be properly 

recorded, a mortgage must have endorsed upon or annexed to it a 

certificate of acknowledgment pursuant to § 29.
9

The acknowledgment required for proper recording of a mortgage 

by § 29 need not take any one specific form. See G. L. c. 183, 

§ 42.

The reason for requiring a certificate of acknowledgment to 

be appended to a deed as a condition of the deed's proper 

recording is most fundamentally to ensure that public notice of 

the transfer of title to the land, appearing in the registry's 

record, is accurate. See Pidge v. Tyler, 4 Mass. 541, 543, 545-

546 (1808). See also McOuatt, 320 Mass. at 414-415. This 

reason applies with equal force to mortgages. See In re Giroux, 

U.S. Bankr. Ct., No. 08-14708-JWF, slip op. at 12-16 (D. Mass. 

May 21, 2009), aff'd, U.S. Dist. Ct., No. 09-CV-10988-PBS (D. 

Mass. Nov. 17, 2009).

a. Question 1. The first question asks whether an 

attorney's affidavit like Quintin's, executed and recorded 

pursuant to § 5B and attesting to the proper acknowledgment of a 

recorded mortgage that, as originally executed and recorded, 

omitted the name of the mortgagor from the acknowledgment and 

thereby contained a material defect, may correct that omission 

and thereby the material defect. The trustee argues that the 

answer to this question must be no. Although she does not 

dispute the veracity of any of the facts averred in Quintin's 

attorney's affidavit -- i.e., she does not question that 

Quintin, in fact, did witness the Pereiras' voluntary execution 
10

of the mortgage agreement with the bank on December 27, 2005 --

she contends that the affidavit nonetheless does not and legally 

cannot cure the defect reflected in the acknowledgment. She 

advances three reasons in support of her position that we next 

discuss; we disagree with each of them.

i. "Functus officio."11 The trustee argues that the 

doctrine or principle of "functus officio" prohibits a public 

official, including a notary public such as Quintin, from 

unilaterally recording what essentially constitutes a formal 

reacknowledgment of the mortgage agreement without the assent of 

the mortgagors, here the Pereiras.12 Functus officio is a 

common-law principle that has been referenced in our cases since 

at least the early Nineteenth Century. In those early cases, 

the term appeared to signify that because of identified actions 

taken by one or more relevant parties, a particular pleading 

(e.g., a writ) or document with legal significance (e.g., a note 

or mortgage) was of no further legal effect and could not be the 

 

11 The bank argues that the trustee waived any argument 

concerning the principle of "functus officio" by failing to 

raise it in the earlier proceedings in this case. Waiver in 

this instance is a matter for the United States Court of Appeals 

for the First Circuit (First Circuit) to decide; to answer the 

First Circuit's questions, we consider here the trustee's 

functus officio argument.

12 "Functus officio" is defined as "without further 

authority or legal competence because the duties and functions 

of the original commission have been fully accomplished." 

Black's Law Dictionary 787 (10th ed. 2014).
11

basis of any subsequent legal action. See, e.g., Kidder v. 

Browne, 9 Cush. 400, 401-402 (1852) (writ filed by plaintiff 

after statutory deadline for filing was functus officio); 

Claflin v. Godfrey, 21 Pick. 1, 8-9 (1838) (where note or 

mortgage was paid off, it was functus officio, i.e., no longer 

operative); Clark v. Lyman, 10 Pick. 45, 47-48 (1830) 

(attachment of property with altered writ of attachment in 

violation of statute was functus officio). Currently, the 

principle appears to be used primarily, if not exclusively, in 

relation to arbitration awards and the power of an arbitrator.13 

In this context, functus officio has been defined as meaning 

"that an arbitrator is without power to modify his final award 

except where the controlling statute or the parties authorize 

modification." Ciampa v. Chubb Group of Ins. Cos., 26 Mass. 

App. Ct. 941, 941 (1988). See Connecticut Valley Sanitary Waste 

Disposal v. Zielinski, 436 Mass. 263, 268 (2002). Cf. Eastern 

Seaboard Constr. Co. v. Gray Constr., Inc., 553 F.3d 1, 4 & n.2 

(1st Cir. 2008) (Federal Arbitration Act).

We conclude that the principle of functus officio does not 

apply here for two reasons. First, as just suggested, it is 

 

13 Our research has not uncovered any case since 1926 in 

which a Massachusetts appellate court has applied the principle 

of functus officio outside the arbitration context. See 

Kalbritan v. Isidor, 255 Mass. 494, 497-498 (1926) (execution 

issued in "poor debtor" proceeding was functus officio where it 

failed to show that time required by statute was allowed).
12

doubtful the principle continues to be recognized outside the 

arbitration context.14 Second, § 5B, by its terms (see note 8, 

supra), appears to contemplate that an attorney's affidavit 

prepared and recorded in accordance with the requirements of 

that statute, by "clarifying" the chain of title, will 

necessarily alter at least in some respect that chain of title 

as it is reflected in the documents previously recorded. In 

other words, when its requirements are met, § 5B effectively 

supersedes any continuing common-law functus officio principle 

in this arena. See, e.g., Coburn v. Palmer, 10 Cush. 273, 275 

(1852) ("the common law remains in force in all the cases in 

which the statutes have not altered it").

ii. Curative provisions and effect of § 5B affidavit. The 

trustee argues the following: the omission of the mortgagor's 

name in the acknowledgment is a material defect that renders 

invalid the recording of the mortgage to which the 

acknowledgment is affixed; a § 5B attorney's affidavit like 

Quintin's in this case is insufficient to correct such a defect 

 

14 There is some question whether the functus officio 

principle continues to operate even within the arbitration 

context. See Eastern Seaboard Constr. Co. v. Gray Constr., 

Inc., 553 F.3d 1, 4 (1st Cir. 2008), citing and quoting Glass, 

Molders, Pottery, Plastics, & Allied Workers Int'l Union, AFLCIO, CLC, Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 846 

(7th Cir. 1995) (functus officio doctrine is "riddled with 

exceptions . . . [and] is hanging on by its fingernails").
13

because G. L. c. 184, § 24,15 prescribes the sole means of curing 

a defect in an acknowledgment; relief under § 24 was not pursued 

here, and therefore, the recording of the Pereiras' mortgage 

remained legally defective at the time the debtor filed his 

Chapter 7 petition; and accordingly, the trustee, through the 

exercise of her statutory "strong-arm" powers, see 11 U.S.C. 

§ 544(a)(3) (2012),

16 was entitled to avoid the mortgage for the

 

15 General Laws c. 184, § 24, as amended by St. 1964, 

c. 311, § 1, provides in relevant part:

"When any owner of land the title to which is not 

registered, or of any interest in such land, signs an 

instrument in writing conveying or purporting to convey his 

land or interest . . . and the instrument, whether or not 

entitled to record, is recorded, and indexed, in the 

registry of deeds . . . , and a period of ten years elapses 

after the instrument is accepted for record, and the 

instrument or the record thereof because of defect, 

irregularity or omission fails to comply in any respect 

with any requirement of law relating to . . . the validity 

of . . . [a] certificate of acknowledgment . . . , such 

instrument and the record thereof shall notwithstanding any 

or all of such defects, irregularities and omissions, be 

effective for all purposes to the same extent as though the 

instrument and the record thereof had originally not been 

subject to the defect, irregularity or omission, unless 

within said period of ten years a proceeding is commenced 

on account of the defect, irregularity or omission, and 

notice thereof is duly recorded in said registry of deeds 

and indexed and noted on the margin thereof under the name 

of the signer of the instrument and, in the event of such 

proceeding, unless relief is thereby in due course 

granted."

16 Title 11 U.S.C. § 544(a)(3) (2012) provides:

"(a) The trustee shall have, as of the commencement of 

the case, and without regard to any knowledge of the 

trustee or of any creditor, the rights and powers of, or 
14

benefit of the bankruptcy estate because the mortgage did not 

represent a perfected security interest held by the bank.

We disagree with the premise of the trustee's argument that 

§ 24 provides the sole means by which to cure a defect in an 

acknowledgment of a mortgage; rather, as the Federal District 

Court judge concluded, § 24 in effect creates a statute of 

repose to protect the chain of title to real property from 

attenuated challenges. The ten-year period stated in § 24 

simply allows those individuals whose rights have been affected 

by the purported conveyance to commence a proceeding to 

vindicate their rights, but once ten years have elapsed, the 

rights of those parties to challenge the validity of the 

conveyance are lost. See Opinion of the Justices, 360 Mass. 

894, 899 (1971) (describing § 24 as "curative legislation 

providing for saving periods during which existing rights can be 

preserved"). See also Nett v. Bellucci, 437 Mass. 630, 639 

(2002) ("The purpose of a statute of repose is to give 

particular types of defendants the benefit of a date certain on 

 

may avoid any transfer of property of the debtor or any 

obligation incurred by the debtor that is voidable by --

". . .

"(3) a bona fide purchaser of real property, other 

than fixtures, from the debtor, against whom applicable law 

permits such transfer to be perfected, that obtains the 

status of a bona fide purchaser and has perfected such 

transfer at the time of the commencement of the case, 

whether or not such a purchaser exists."
15

which their liability for past conduct will definitively come to 

an end"). Nothing in the language of § 24 states or implies 

that it defines the exclusive permissible method of curing any 

and all defects that may exist in an acknowledgment. Indeed, 

the Legislature has enacted statutes in addition to § 24 that 

provide solutions to certain types of problems relating to 

acknowledgments; in this regard, see G. L. c. 183, §§ 36, 37.17 

We consider § 5B to be another example of such a statute, 

providing a method to correct certain types of errors that may 

affect the validity of an acknowledgment that accompanies or is 

annexed to a recorded deed or mortgage.

The question then becomes, what types of errors relating to 

a defective acknowledgment may properly be corrected with an 

attorney's affidavit prepared and recorded under § 5B. The 

answer derives from the text of § 5B, and in particular, the 

requirements that (1) facts contained in the affidavit must be 

based on the personal knowledge of the affiant; and (2) the 

affidavit include a certification by an attorney that the facts 

stated are both relevant to the title of specifically identified 

property and "will be of benefit and assistance in clarifying 

 

17 General Laws c. 183, § 36, provides a method for curing a 

grantor's refusal to acknowledge his or her deed by permitting a 

subscribing witness to testify that the deed was duly executed; 

G. L. c. 183, § 37, provides that where a grantor refuses to 

acknowledge his or her deed, due execution may be shown by 

proving the handwriting of the grantor and of a subscribing 

witness.
16

the chain of title." The Legislature's choice of the word 

"clarifying"18 suggests that the attorney's affidavit must be 

limited to facts that explain what actually occurred, and are 

not inconsistent with the substantive facts contained in the 

original document.19 See Allen v. Allen, 86 Mass. App. Ct. 295, 

299-300, 305-308 (2014) (facially proper acknowledgment, 

reflecting grantor signed deed in presence of notary, deemed 

invalid where evidence established grantor in fact did not 

execute deed in notary's presence on date stated in deed).

Here, the undisputed facts indicate that the § 5B 

attorney's affidavit recorded by Quintin was sufficient to 

correct or cure the defect in the acknowledgment and, in turn, 

the recording of the mortgage given by the Pereiras to the bank. 

 

18 To "clarify" means "to free (the mind or understanding) 

of confusion, doubt, or uncertainty"; "to explain clearly: make 

understandable"; or "to make less complex or less ambiguous." 

Webster's Third New International Dictionary 415 (1993).

19 In two recent cases, this court has approved the use of 

an attorney's affidavit to clarify compliance with statutory 

requirements relating to mortgages that appear in the chain of 

title. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 244 

(2015) (in connection with mortgage foreclosure proceeding, 

mortgage holder may record attorney's affidavit to demonstrate 

compliance with notice provisions of paragraph 22 of standard 

mortgage); Eaton, 462 Mass. at 589 n.28 (mortgage holder may use 

attorney's affidavit to establish it held note or was agent of 

note holder at time of foreclosure sale). These decisions serve 

to illustrate the point we make here, which is that § 5B permits 

attorney's affidavits to explain a set of existing facts 

relevant to the chain of title where the facts had not been 

stated explicitly in the property record, whether through 

inadvertent omission or mistake or because no document 

previously called for them.
17

The defect in the acknowledgment was the omission of the names 

of the mortgagors; Quintin's attorney's affidavit supplies the 

missing information and confirms that all the steps necessary to 

acknowledge the mortgage properly were taken, namely, that the 

mortgagors, Lisa M. Pereira and Alvaro Pereira, personally 

appeared before the affiant, Quintin; that Quintin confirmed 

their identities; that he witnessed them execute the mortgage 

agreement; and that they did so voluntarily. The affidavit also 

attests that the omission of the mortgagors' names was 

inadvertent, and, finally, references the book and page number 

of the previously recorded mortgage -- a step that enables the 

two documents to be connected, thereby effectuating the intended 

clarification of the chain of title.

iii. Illegally recorded mortgage. Finally, the trustee 

argues that because the defect in the certificate of 

acknowledgment precluded the mortgage to which it was annexed 

from being legally recorded, see G. L. c. 183, § 29, the 

mortgage did not and could not enter the chain of title relating 

to the property. As a consequence, she claims, nothing exists 

on record to be "clarified" by an attorney's affidavit recorded 

pursuant to § 5B. See In re Mbazira, U.S. Bankr. Ct., No. 13-

16586-WCH (D. Mass. Mar. 31, 2015) ("[I]f a [mortgage] is 

improvidently recorded due to a defective acknowledgement, the 

court must honor [G. L. c. 183, § 29,] by adopting a fiction 
18

that the [mortgage] is unrecorded and outside the chain of 

title"). We disagree. As indicated previously, we have 

accepted the premise on which the First Circuit's questions are 

based, namely, that the omission of the names of the mortgagors 

in an acknowledgment is a material defect. It follows that 

under G. L. c. 183, § 29, the defect should operate to preclude 

the legal recording of the mortgage. For the reasons previously 

discussed, however, an attorney's affidavit filed and recorded 

pursuant to § 5B that supplies the omitted names of the 

mortgagors, explains the circumstances of the omission, and 

confirms that in fact the affiant did witness the voluntary 

execution of the mortgage by the mortgagors on the date stated 

operates to cure the original defect in the acknowledgment. The 

curing of the defect in the acknowledgment also cures the defect 

in the original recording of the mortgage, and the mortgage 

thereafter is properly considered within the mortgage property's 

chain of title.20

 

20 General Laws c. 183, § 29, requires that a certificate of 

acknowledgment be "endorsed upon or annexed to" the recorded 

mortgage (emphasis added). It could be argued that even where 

an attorney's affidavit supplies necessary information that was 

omitted inadvertently from the original acknowledgment, it 

cannot cure that original defect because the attorney's 

affidavit, recorded at some time after the original 

acknowledgment was recorded, is by definition not "endorsed upon 

or annexed to" the mortgage itself. We agree with the Federal 

District Court judge, however, that where, as here, the 

attorney's affidavit explicitly references the book and page 

numbers where the mortgage and original acknowledgment were 
19

b. Question 2. The second question asks whether an 

attorney's affidavit, attesting to the proper acknowledgment of 

a previously recorded mortgage accompanied by an acknowledgment 

that omitted the name of the mortgagor, may provide constructive 

notice to a bona fide purchaser of the existence of the 

mortgage, by itself or in combination with the mortgage.

We answer as follows. As applied to the chain of title to 

real property, constructive notice arises by operation of law 

under G. L. c. 183, § 4, in any case where the mortgage is 

properly recorded.21 See Allen, 86 Mass. App. Ct. at 298-300, 

and cases cited. See also Tramontozzi, 344 Mass. at 517.22 If a 

deed or mortgage is recorded without an acknowledgment, it is 

 

recorded, the affidavit is properly deemed "annexed" to the 

mortgage.

21 "Constructive notice" is defined as "[n]otice arising by 

presumption of law from the existence of facts and circumstances 

that a party had a duty to take notice of, such as a registered 

deed or a pending lawsuit; notice presumed by law to have been 

acquired by a person and thus imputed to that person." Black's 

Law Dictionary 1227 (10th ed. 2014).

22 Cf. In re Ryan, 851 F.2d 502, 506-507 (1st Cir. 1988), 

quoting Tiffany's Law of Real Property § 1284, at 50 (B. Jones 

ed. 1939) ("It would seem that one might properly be said to 

have actual notice when he has information in regard to a fact, 

or information as to circumstances an investigation of which 

would lead him to information of such fact, while he might be 

said to have constructive notice when he is charged with notice 

by a statute or rule of law, irrespective of any information 

which he might have, actual notice thus involving a mental 

operation on the person sought to be charged, and constructive 

notice being independent of any mental operation on his part" 

[emphasis in original]).
20

not properly recorded, see G. L. c. 183, § 29, and does not 

provide constructive notice. See, e.g., Graves v. Graves, 6

Gray 391, 392-393 (1856) ("But the instrument of defeasance, not 

being acknowledged, was improvidently admitted to registration, 

and the record does not operate as constructive notice of the 

execution of the assignment of the equity of redemption, as 

against an attaching creditor of the equity; and therefore the 

title of the attaching creditor, though subsequent in time, 

takes precedence of the assignment"). See also McOuatt, 320 

Mass. at 413-414. Similarly, a mortgage recorded with an 

acknowledgment that contains a material defect is not properly 

recorded and does not provide constructive notice of the 

mortgage. See id. at 415 (where lack of proof that grantor in 

fact acknowledged conveyance of property to his wife as his free 

act and deed, deed was not properly acknowledged; although deed 

with acknowledgement was recorded, no effect could be given to 

it). See also Allen, 86 Mass. App. Ct. at 299-300 (although 

deed was accompanied by facially correct acknowledgement, where 

proper acknowledgement never actually occurred, deed not 

entitled to be recorded).

As our answer to the first question indicates, where, as 

here, the attorney's affidavit complies with the formal 

requirements of § 5B, attests to facts that clarify the chain of 

title by supplying information omitted from the originally 
21

recorded acknowledgement, and references the previously recorded 

mortgage, the affidavit -- not by itself but in combination with 

that mortgage -- provides legally adequate constructive notice

to a bona fide purchaser or, here, a trustee in bankruptcy. 

This is so because the prior recording of the mortgage has been 

remedied and is deemed proper through the curative effect of the 

affidavit.23

3. Conclusion. We respond to the certified questions as 

follows.

An attorney's affidavit filed pursuant to G. L. c. 183, 

§ 5B, attesting to the proper acknowledgment of a recorded 

mortgage that has annexed to it an acknowledgment that omitted 

the mortgagors' names, in certain circumstances (such as those 

 

23 It is important to note that even though a § 5B affidavit

purportedly correcting a defect in a mortgage acknowledgement, 

in combination with the original mortgage, may provide 

constructive notice of the mortgage to a trustee in bankruptcy

or a bona fide purchaser more generally, the trustee or bona 

fide purchaser may still challenge -- as the trustee here has 

done -- the validity of the acknowledgement, and thereby the 

existence of constructive notice. See McOuatt v. McOuatt, 320 

Mass. 410, 413 (1946) ("The certificate of acknowledgment 

furnishes formal proof of the authenticity of the execution of 

the instrument when presented for recording. The certificate of 

acknowledgment is of evidentiary character, and the taking of 

the acknowledgment has always been regarded in this Commonwealth 

as a ministerial and not as a judicial act and the recitals 

contained in the certificate may be contradicted"). If the 

challenge were successful, the uncorrected defect in the 

original acknowledgement would signify that the mortgage was not 

entitled to be recorded and, therefore, no constructive notice 

of the mortgage would exist. See id. at 415; Allen v. Allen, 86 

Mass. App. Ct. 295, 299-300 (2014).
22

present in this case) may cure the defect in the acknowledgment 

and, in turn, effectuate a proper recording of the mortgage. 

Second, in a case in which the § 5B attorney's affidavit does 

cure the defect in the acknowledgment, the attorney's affidavit, 

considered in combination with the originally recorded mortgage, 

provides constructive notice of the existence of the mortgage to 

a bona fide purchaser; in a case where the attorney's affidavit 

does not cure the material defect in the acknowledgment, the 

affidavit, whether alone or in combination with the mortgage, 

does not provide constructive notice.

The Reporter of Decisions is directed to furnish attested 

copies of this opinion to the clerk of this court. The clerk in 

turn will transmit one copy, under the seal of the court, to the 

clerk of the United States Court of Appeals for the First 

Circuit, as the answer to the questions certified, and will also 

transmit a copy to each party.