The United States Court of Appeals for the Eleventh Circuit recently overturned a lower court and found that an attorney's acknowledgement of a deed was not enough to remedy the fact that it lacked the requisite two attestations under Georgia law. See Pingora Loan Servicing, LLC v. Scarver (In re Lindstrom), 2022 U.S. App. LEXIS 9423 (11th Cir. Apr. 7, 2022). In the case, the borrower executed a security deed to a lender to secure a loan. Her sister attested the deed (i.e., she signed a statement that she witnessed the execution) and the closing attorney/notary acknowledged it (i.e., he signed a statement that the borrower had acknowledged signing it, but not that he witnessed the signature itself). A few years later, the borrower filed for bankruptcy. The bankruptcy trustee sued the lender, arguing that the deed was invalid under Georgia law because the statute – which was amended only a few weeks before the deed was signed – now required two witnesses to attest the deed instead of one. The lender tried to salvage the deed under O.C.G.A. § 44-2-18, which allows a defective deed to be remedied if a "subscribing witness" signs an affidavit stating that the deed was validly executed and attested. The lender argued that the closing attorney was a subscribing witness and that his acknowledgement was sufficient to save the deed under the statute. The District Court agreed with the lender, and the trustee appealed.
On appeal, the Court reversed. The Court focused on whether someone who signs an
acknowledgement, as opposed to an attestation, is a "subscribing witness" under the statute, which had been enacted in 1850. Citing cases and law dictionaries from the 18th and 19th centuries and going forward, the Court found that "attestation—signing as a witness to a deed's execution—is the only way a person can qualify as a 'subscribing witness.' As a result, the terms 'attesting witness' and 'subscribing witness' are synonymous." Accordingly, the attorney's acknowledgement was insufficient under the statute. The Court also noted a second issue with the lender's argument. O.C.G.A. § 44-2-18 applies to deeds "neither attested by nor acknowledged before one of the officers named in Code Section 44-2-15[.]" Because the deed here was acknowledged before an officer, the remedial statute would not apply: the "acknowledged deed enters limbo—no longer good enough to be recorded, but too good to be saved." The Court noted that this likely was an oversight by the Georgia assembly, and that "it might 'be well for the general assembly to consider the wisdom of adopting another' remedial rule for acknowledged deeds."
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