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In re Bowling

314 B.R. 127 (2004)

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In re Bowling

United States Bankruptcy Court for the Southern District of Ohio

314 B.R. 127 (2004)

Facts

Charles Bowling (debtor) owned real property in Oxford, Ohio. Bowling signed a promissory note with Alta Financial Corporation (Alta) (creditor). The note included a mortgage on the Ohio property as security for the note. The mortgage paperwork stated that Bowling’s signature had been notarized. Alta was succeeded by Mortgage Registration System (MERS) (creditor), and MERS became the new holder of the note. Bowling later filed for bankruptcy under chapter 7 of the bankruptcy code. During the bankruptcy proceedings, the bankruptcy trustee obtained an affidavit from Bowling stating that the notary was not present when Bowling signed the mortgage, and that Bowling had never acknowledged signing it to the notary. The trustee filed a motion for summary judgment, claiming that the mortgage was defectively executed under Ohio law and therefore avoidable under § 544 of the bankruptcy code.

Rule of Law

Issue

Holding and Reasoning (Aug, Jr., J.)

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