In re Ingersoll
| Decision Date | 04 December 2009 |
| Docket Number | BAP No. 09-8018. |
| Citation | 420 B.R. 414 |
| Parties | In re Shirley INGERSOLL, Debtor. William Todd Drown, Plaintiff-Appellant, v. National City Bank, Defendant-Appellee. |
| Court | U.S. Bankruptcy Appellate Panel, Sixth Circuit |
William Todd Drown, Folland & Drown LPA, Mount Vernon, Ohio, for Appellant.
ON BRIEF:
William Todd Drown, Folland & Drown LPA, Mount Vernon, Ohio, for Appellant.
Before: FULTON, HARRIS, and SHEA-STONUM, Bankruptcy Appellate Panel Judges.
This is an appeal of the bankruptcy court's grant of summary judgment in favor of Defendant-Appellee, National City Bank ("NCB"), in an adversary proceeding commenced by William Todd Drown, Chapter 7 Trustee (the "Chapter 7 Trustee"), pursuant to 11 U.S.C. § 544(a)(3) seeking to avoid NCB's mortgage on the one-half interest in certain property once owned by Shirley Ingersoll's now deceased husband.
The issue presented by this appeal is whether the bankruptcy court erred in concluding that NCB's mortgage was valid despite the fact that the notary's certificate of acknowledgment stated that both Shirley Ingersoll and her husband personally appeared and signed the mortgage when, in fact, Shirley Ingersoll appeared and signed for herself and, by virtue of a valid power of attorney, her husband.
The Bankruptcy Appellate Panel for the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the Panel, and neither party has timely elected to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6) & (c)(1). A bankruptcy court's final order may be appealed as of right. 28 U.S.C. § 158(a)(1). For the purpose of an appeal, a final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). An order granting summary judgment constitutes a final order. Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007).
The issue raised on appeal here challenges the bankruptcy court's interpretation of Ohio state law and certain contractual provisions. Interpretations of state law and contractual provisions constitute conclusions of law. See Lebovitz v. Hagemeyer (In re Lebovitz), 360 B.R. 612, 615 (6th Cir. BAP 2007); Van Aken v. Van Aken (In re Van Aken), 320 B.R. 620, 623 (6th Cir. BAP 2005); Official Unsecured Creditors Comm. of Valley-Vulcan Mold Co. v. Ampco-Pittsburgh Corp. (In re Valley-Vulcan Mold Co.), 237 B.R. 322, 326 (6th Cir. BAP 1999); Hamo v. Wilson (In re Hamo), 233 B.R. 718, 721 (6th Cir. BAP 1999); The Beneke Co., Inc. v. Economy Lodging Sys., Inc. (In re Economy Lodging Sys., Inc.), 234 B.R. 691, 693 (6th Cir. BAP 1999).
A bankruptcy court's conclusions of law require de novo review. Moran v. LTV Steel Co., Inc. (In re LTV Steel Co., Inc.), 560 F.3d 449, 452 (6th Cir.2009). "Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court's determination." Buckeye Check Cashing, Inc. v. Meadows (In re Meadows), 396 B.R. 485 (6th Cir. BAP 2008).
The relevant facts are not in dispute and are well stated by the bankruptcy court. Therefore, they are not repeated here.
As noted above, the conclusions of law are to be reviewed de novo. After conducting such a review in this appeal, the Panel finds the bankruptcy court's Memorandum Opinion Denying Plaintiff's Motion for Summary Judgment and Granting Defendant's Cross-Motion for Summary Judgment contains a complete and well-reasoned analysis of applicable law.
The Panel adopts the reasoning and analysis of the bankruptcy court in its entirety and affirms the...
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In re Scott
...Court decision to grant summary judgment for defendants on trustee's motion to avoid mortgage as defectively executed), aff'd, 420 B.R. 414 (6th Cir. BAP 2009); Hardesty v. Citifinancial, Inc. (In re Roberts), 402 B.R. 808, 814 (Bankr.S.D.Ohio 2009) (relying in part on an 1827 Ohio Supreme ......
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In re Mayer
...A bankruptcy court order in which a summary judgment is granted is a final appealable order. Drown v. Nat'l City Bank (In re Ingersoll), 420 B.R. 414, 414–15 (6th Cir. BAP 2009). On appeal, this Court possesses the authority to review a bankruptcy court's findings of fact for clear error an......
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McClatchey v. GMAC Mortg., LLC (In re Lacy)
...satisfying the signature requirement. See Drown v. Nat'l City Bank (In re Ingersoll), 403 B.R. 505, 510 (Bankr.S.D.Ohio), aff'd,420 B.R. 414 (6th Cir. BAP 2009), aff'd,433 Fed.Appx. 367 (2011) (explaining the statutory bases under Ohio law for concluding that the signature requirement is sa......
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In re Boyd Wayne Rowe And Linda Lou Rowe
...decides the issues of law independently of, and without deference to, the trial court's determinations. Drown v. Nat'l City Bank (In re Ingersoll), 420 B.R. 414, 415 (6th Cir. BAP 2009). The bankruptcy court's findings of fact are reviewed under the clear-error standard. Behlke v. Eisen (In......