by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
RECORDING ACTS; CONSTRUCTIVE NOTICE; HYPHENATED NAMES: Recording of judgment under hyphenated name is insufficient to provide constructive notice of claims against either of the unhyphenated versions of the judgment debtor's name.
Teschke v. Keller, 650 N.E.2d 1279 (Mass. App. Ct. 1995).
While they were married, the parties took title to their home in the names of "Gerd Teschke and Marita Keller Teschke." (No hyphen in Marita's name.) Later, the parties were divorced and in the divorce proceeding Marita legally changed her name to Keller. The parties executed a joint quitclaim deed from "Gerd Teschke and Marita Keller-Teschke" (sic) to "Marita Keller."
Later, Teschke, seeking enforcement of the financial terms of a separation agreement, placed on record at the registry a writ of attachment applicable to the estate of the his former wife under her married name - Keller-Teschke.
The registry registered the attachment only under the hyphenated name. Subsequently, two mortgagees recorded mortgages against the former wife. The first such mortgagee recorded at the registry a mortgage in the legal name of the owner, i.e., Keller. The second mortgagee recorded a mortgage given by Keller, formerly known as "Keller-Teschke."
Later, a deputy sheriff, relying on the writs of attachment and execution, sold the premises at a public auction. Notice of the sale had been delivered to the former wife and owner of record, but the mortgagees did not receive notice nor did they have actual knowledge of the sale. The Trial Court found, interpreting G.L.c 223, Section 66, that the attachment, execution and sheriff's sale did not have priority over the first mortgagee's interest, reasoning that the statute plainly conditioned the validity of an attachment as against subsequent good faith purchasers on the name and the writ of attachment matching the name under which the owner of the property sought to be attached acquired record title. As to the second mortgagee, the court ruled that the mortgagee's use of the "also known as" phrasing in the mortgage demonstrated that the mortgagee should be regarded as having constructive knowledge that filings against a party named "Keller-Teschke" might affect its title.
On appeal, the appeals court affirmed the trial court's determination regarding the priority of the first mortgagee, but on an alternative ground. On the issue of constructive notice, the appeals court affirmed the holding that the second mortgagee had such notice. As to the first mortgagee, the appeals court commented that the earlier recorded deed from to Keller coming out of the divorce, which used the hyphenated name, might have put a title examiner on notice of the fact that the mortgagor had used such name in the past, and thus have given it constructive notice to search the attachment records under that name. The court viewed the issue as moot, however, because it held that neither mortgagee received notice of the execution sale as required by Constitutional Due Process under Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (failure to give notice to a mortgagee of record, by personal service or by mail, of a proceeding to sell the mortgaged property for nonpayment of taxes is a denial of due process of law)
Comment 1: The court, in the end, found that the subsequent mortgagees did have notice of the name change, but only through a somewhat circuitous route. It appears that there is no index of name changes in Massachusetts, or at least that there is no constructive notice of such changes. This fact would seem to portend all manner of uncertainty with regard to title. Surely Massachusetts title examiners will have to rethink this statute, which apparently of somewhat recent origin, as people change their names quite frequently these days. In this case, of course, one would think that the former husband, who was a party to the proceeding in which his former wife's name was changed, should have known better than to file the attachment against her under her former name.
Comment 2: Although, as we say in "Hardball 101" the equities are not relevant in recording act matters, it is worth noting that the former husband bid bought the property by bidding in his $40,000 judgment at a time when the appraised value was around $250,000 (assuming that the mortgages had been cut off - which, of course, did not turn out to be the case).
Comment 3: The final holding of the case, that the judgment lien creditor has a duty to notify junior interests of the execution sale, should come as no surprise to those familiar with the Due Process considerations in such matters, but it is remarkable that thirteen years following Mennonite people still are undertaking "state action" executions without notice.
Comment 4: While we're puzzling about what's up in Massachusetts, we might also want to wonder about the apparent use of pre-judgment attachment. The case tells us little about that device here, except to tell us that the former husband used it. This appears to have been a simple damages action, not an assertion of an equitable lien or another interest in the property itself. Under Connecticut v. Doehr, 111 S. Ct. 2105 (1991) pre-judgment attachment in such proceedings have been unconstitutional in the rest of the country for five years. Perhaps there's something special about the Massachusetts system, or perhaps it will take as long for news of Doehr to filter up to Massachusetts as it has for news of Mennonite.
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