Fifth Third Bank, Indiana v. Edgar County Bank & Trust, Appeal of Garzolini Tire & Fuel, Inc., Debtor in Possession, 482 F.3d 904, 3rd Cir. (2007)
Fifth Third Bank, Indiana v. Edgar County Bank & Trust, Appeal of Garzolini Tire & Fuel, Inc., Debtor in Possession, 482 F.3d 904, 3rd Cir. (2007)
3d 904
Garzolini Tire & Fuel borrowed money from Edgar County Bank & Trust on
the security of a mortgage in what the parties call the Clinton Property. During
Garzolini Tire's bankruptcy, Fifth Third Bank filed an adversary proceeding in
which it argued that it held an interest superior to Edgar County Bank's.
Eventually Fifth Third Bank concededbut Garzolini Tire made its own claim
to the proceeds of the Clinton Property, which has been sold. (The purchase
price is being held in escrow.) According to Garzolini Tire, the mortgage was
not properly signed and attested, so the proceeds of the Clinton Property should
be distributed to unsecured creditors (including Edgar County Bank) under the
terms of the plan of reorganization.
Neither side's brief complied with Circuit Rule 28(a)(3), which requires details
on how the matters appealed in a bankruptcy case relate to any part of the
litigation still under way in the bankruptcy court or the district court. An order
issued before oral argument achieved only partial compliance, so at oral
argument we directed the parties to try again. Their filings have revealed that
(a) the adversary proceeding has been fully resolved (Fifth Third Bank made
several claims in addition to the one about the Clinton Property), and (b) the
bankruptcy itself has produced an approved plan of reorganization, a final
decision by any standard.
3
When Garzolini Tire borrowed from Edgar County Bank & Trust ("the Bank"
for short), its president was Bruno Garzolini, Jr., and its vice president was
Robert D. Garzolini. Both Bruno and Robert borrowed from the Bank in the
same transaction, though only Garzolini Tire gave a security interest in real
property. The signature block on the mortgage reads (with manuscript
signatures in italic):
5
THE
BORROWERS HEREBY DECLARE AND ACKNOWLEDGE THAT THE
BORROWERS HAVE RECEIVED, WITHOUT CHARGE, A TRUE COPY OF
THIS MORTGAGE.
GARZOLINI
TIRE & FUEL,
6
INC.
Robert D. Garzolini
Robert
D. Garzolini, V.P.
7
ROBERT D. GARZOLINI
The next page contains a notary public's declaration that these signatures are
genuine.
Garzolini Tire maintains that these signatures are inadequate, because the
Garzolinis may have been signing exclusively in their personal capacities. The
notary's attestation does not reveal in which capacity they signed, so the
document is ineffective under Ind.Code 32-21-2-3. Although Ind.Code 3221-2-3 and its predecessors deal with the recording of mortgages rather than
with the rights of the parties to the transaction, see Hubble v. Wright, 23 Ind.
322 (1864), in a bankruptcy proceeding the trustee or debtor in possession can
assume the position of a hypothetical third party that could take ahead of a nonrecorded mortgage. See 11 U.S.C. 544(a).
10
11
Arguments back and forth about the relative weight and effect of Haverell and
Mishawaka Federal S & L seem to us bootless, because Ind.Code 32-21-2-3
is simple as can be. Under this statute, a mortgage is eligible to be recorded if it
is "(1) acknowledged by the grantor or (2) proved before a(A) judge ... [or] (E)
notary public ...." The statute does not say how mortgages are to be
"acknowledged" or "proved"; this is apparently left to private choice. Ind.Code
32-21-2-7 offers some samples but does not require their useand the sample
forms are skimpier than the one these parties devised. This particular mortgage
was acknowledged by two corporate officers, proved before a notary public,
and later proved before a bankruptcy judge. As long as the Garzolinis were
acting on behalf of Garzolini Tire, there is no problem. And whether they were
so acting is a question not of law but of factand the bankruptcy judge found
that they acted in both corporate and personal capacities.
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the corporation as its President. And the notary tells us that the signatures are
genuine. We have no doubt that Indiana's courts would treat this as an effective
mortgage.
13
AFFIRMED.