MEMO

TO: John O’Brien
Register of Deeds Southern Essex County, Commonwealth of Massachusetts

FROM: Jamie Ranney, Esq.
Jamie Ranney, PC
4 Thirty Acres Lane
Nantucket, MA 02554
508.228.9224 (tel)
508.228-4752 (fax)

DATE: June 18, 2011

RE: Legal authority of Registers of Deeds in Massachusetts to reject document(s) and/or instrument(s) for recording in their registries

QUESTION PRESENTED

What legal authority does a Register of Deeds in Massachusetts have to reject for recording (unregistered land) or registration (Land Court registered land) document(s) and/or instrument(s) in his Registry and where is such legal authority derived from?

SUMMARY

It is without question that a Register of Deeds has an important and fiduciary relationship and responsibility – especially in the Commonwealth where his position is elected – to all of his constituents, as well as to the public at large, all of whom rely and who should be able to rely on the Register’s efforts, supervision, and oversight in assuring, maintaining and promoting the integrity, transparency, accuracy, and consistency of a County’s land records.
The Register’s work and supervision of his registry most often revolves around tasks and responsibilities that are generally ministerial in nature. The Register is typically concerned with the daily task of recording of legal document(s) and/or instrument(s) affecting real property where such document(s) and/or instrument(s) are properly presented to the registry for recording on the public land records.

However, the Register’s fiduciary duty goes well beyond these usual ministerial acts in circumstances where the Register has actual knowledge or a subjective good-faith belief/basis for believing that document(s) and/or instrument(s) being presented for recording or registration in the registry for which he has responsibility are fraudulent or otherwise not executed or acknowledged under applicable law. In such cases the Register may lawfully refuse to record such document(s) and/or instrument(s).

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Wall Street Journal-

Mitch Granat, a lawyer who handles debt-collection cases for J.P. Morgan in Palm Beach County, Fla., on a contract basis, said he was told by other lawyers for the bank that the suits in Florida were dropped because of “irregularities” in paperwork used to verify the validity of the credit-card debt being pursued. Some judges have complained that J.P. Morgan and other credit-card issuers that go to court to collect what they are owed file lawsuits marred by sloppy or even fraudulent documentation of debts. J.P. Morgan hasn’t been accused of wrongdoing related to credit-card cases in any court filings.

It isn’t clear how common the problem is, though Philip Straniere, a state-court judge in Richmond County, N.Y., and other judges say deficiencies are worse than in foreclosure cases. “It’s a significant problem…that’s widespread and yet given virtually no attention,” Judge Straniere said. Last year, Judge Straniere dismissed 150 credit-card-collection suits filed by J.P. Morgan, concluding paperwork submitted by the bank “appeared to be signed in large numbers by only a few individuals.”

Continue reading [WALL STREET JOURNAL]

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Decided on June 15, 2011

Civil Court of The City of New York, Kings County

Chase Bank USA, N.A.

against

Shady A. Gergis

EXCERPTS:

UNDERLYING FACTS:

For its first witness, plaintiff called Martin Lavergne, who worked for CHASE BANK USA, N.A.(“Chase”) in various roles over a period of approximately 17 years. Presently, he holds the title of “custodian of records.” While Mr. Lavergne maintained that he had personal knowledge of the practices and procedures that Chase utilized in creating and maintaining consumer credit card account records, he never described these practices and procedures and never testified as to how he acquired personal knowledge of them.

[...]

Notably, some of the records that were shown to Mr. Lavergne were apparently created by Washington Mutual Bank. Mr. Lavergne explained this by stating that at some point in time, Chase had acquired Washington Mutual Bank. No testimony was elicited from Mr. Lavergne that he had worked for Washington Mutual Bank or that he had personal knowledge of the practices and procedures that Washington Mutual Bank employed in creating and maintaining consumer credit card account records.

[...]

Here, Mr. Lavergne’s foundational testimony was essentially a verbatim recitation of the statutory elements set forth in CPLR 4518[a]. He gave absolutely no testimony as to how the electronic records concerning defendant’s account statements came into existence nor did he indicate that he even knew how such information was collected. It would appear that credit card statements contain information that is conveyed from multiple entities, from the reporting merchant through various intermediaries, until the information is ultimately incorporated into plaintiff’s business records (see Discover Bank v Williamson, 2007 NY Slip Op 50231[U] [App Term, 9th and 10th Jud Dists]). Certainly, Mr. Lavergne did not demonstrate that the person or persons who inputted the electronic data had actual knowledge of the events inputted or that such person or persons obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events (see Corsi v Town of [*4]Bedford, 58 AD3d 225, 229 [2d Dept 2008]; Capasso v Kleen All of America, Inc., 43 AD3d at 1347).

[...]

Further, Mr. Lavergne’s testimony was highly suspect. As stated above, some of the records that plaintiff sought to introduce into evidence through the testimony of Mr. Lavergne were apparently prepared by Washington Mutual Bank. The foundational testimony given by Mr. Lavergne concerning these records was identical to the foundational testimony he gave concerning the Chase records. It is well settled law that in order for a witness to lay the foundation for the admission of a document as a business record pursuant to CPLR 4518[a], the witness must demonstrate personal knowledge of the business practices and procedures pursuant to which the document was made (see Reiss v Roadhouse Rest., 70 AD3d 1021, 1025 [2d Dept 2010]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495 [2d Dept 2007]; Vento v City of New York, 25 AD3d 329, 330 [1st Dept 2006]; Dayanim v Unis, 171 AD2d 579 [1st Dept 1991]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 51879[U] [App. Term, 2d & 11th Jud Dists]). Because Mr. Lavergne never worked for Washington Mutual Bank, it defies logic that he would have personal knowledge of Washington Mutual Bank’s business practices and procedures. For these reasons, the Court gives Mr. Lavergne’s “robo-testimony” and plaintiffs’ no weight or credit (People v Barrett, 14 AD3d 369 [1st Dept 2005]; see also Washington Mut. Bank v Phillip, 2010 NY Slip Op 52034[U] [Sup Ct, Kings County]).

[...]

In sum, the offered “robo-testimony” was insufficient to establish its case by a preponderance of the credible evidence. [*5]

Based on the above, it is hereby

ORDERED that judgment be entered in favor of defendant SHADY A. GERGIS and against plaintiff CHASE BANK USA, N.A. and that plaintiff’s complaint be DISMISSED with prejudice on the merits.

The foregoing constitutes the Decision and Order of the Court.

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