In Re Bowling

314 B.R. 127 (2004)

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Nature of the Case

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Facts

Bowling is the owner of the real estate. The deed was recorded on September 26, 2000, and reflects that he was married at that time. The deed does not include a spouse as a grantee. On July 12, 2001, Bowling executed a promissory note in favor of Alta Financial for $116,073.00. D later acquired the note. Bowling also executed a mortgage conveying the real estate as security for the promissory note. The mortgage was recorded on August 1, 2001. Bowling's signature was notarized by Sharon R. Eisenhut. By her certificate, Ms. Eisenhut certifies that Mr. Bowling executed the mortgage in her presence. Debtor Cathy Bowling did not sign the promissory note or the mortgage. The Debtors filed chapter 7 on January 21, 2003. On July 30, 2003, P filed a complaint seeking to avoid MERS' mortgage alleging it was defectively executed and avoidable under§§ 544 and/or 547. Bowling states that the closing took place at his home, and the only parties present were his wife, and a gentleman named John. Sharon R. Eisenhut, the party signing the acknowledgment on the mortgage was not present. P asserts that since Mrs. Bowling did not execute the mortgage, her dower interest in the real estate is property of the bankruptcy estate. Both parties moved for summary judgment.