Wetzel, III v. Mortgage Electronic Registration Systems, Inc – Recording of Affidavit of Lost Mortgage Does NOT Constitute Constructive Notice Sufficient to Defeat the Claim of a Bona Fide Purchaser

WETZEL, III v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

2010 Ark. 242

Frederick S. WETZEL, III, Petitioner,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Respondent.

No. 09-1410.

Supreme Court of Arkansas.

Opinion Delivered May 20, 2010.

DONALD L. CORBIN, Associate Justice.

We are presented with a question of law certified to us from the United States Bankruptcy Court, Eastern District of Arkansas, in accordance with Ark. Sup. Ct. R. 6-8 (2010), and accepted on January 21, 2010. Wetzel v. Mortgage Elec. Reg. Sys. Inc., 2010 Ark. 31, ___ S.W.3d ___ (2010) (per curiam). The question certified is

[w]hether an affidavit of lost mortgage with a copy of the mortgage appended, or merely a copy of an admittedly lost original mortgage, separately or collectively recorded, constitutes constructive notice sufficient to defeat the claim of a bona fide purchaser under the laws of the State of Arkansas.

For the reasons explained herein, we conclude that the answer to this question is no.

In the case of an affidavit such as this one, there is no requirement of, nor was there any, acknowledgment by the grantor, Pirlee Fox. The affidavit was witnessed and notarized but only for the purpose of attesting to the signature of an employee of the lender who stated that the mortgage was lost and that the bank was claiming an interest in the property described therein.

In sum, the affidavit of lost mortgage is not an instrument affecting title to real property pursuant to section 14-15-404(a)(1), and although accepted for recording by the Perry County Circuit Clerk, it was not entitled to recordation pursuant to section 14-15-402. Accordingly, we hold that the recording of the affidavit of lost mortgage does not constitute constructive notice sufficient to defeat the claim of a bona fide purchaser.

Certified question answered.

See the full decision below…

4closureFraud

WETZEL, III v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
[scribd id=31743171 key=key-1gbta00457u5l7uwjqy7 mode=list]

Comments
One Response to “Wetzel, III v. Mortgage Electronic Registration Systems, Inc – Recording of Affidavit of Lost Mortgage Does NOT Constitute Constructive Notice Sufficient to Defeat the Claim of a Bona Fide Purchaser”
  1. Justin Case says:

    It is good to see some courts are doing the right thing by and for homeowners who are asking for the real part of interest and real contracts that makes them liable to any old shyster coming forward and claiming a debt is owed to them. I think more and more the fraud of these snakes is going to be revealed and some indictments are start coming down for fraud and illegal banking/lending practices and the jails are going to fill up with real crooks and criminals that have hundreds if not thousands of victims.

Leave a Reply

Your email address will not be published. Required fields are marked *