Yesterday, we got one of the phone calls that we all dread... "you missed a mortgage!" That always causes a sense of panic and we rush to double check our work. In this case, title was vested in Ray A. Smith, we checked the index again and only found the one mortgage that we showed. The client, however, provided a volume and page. When we pulled the document and it was, indeed, a mortgage with our legal description. However it was executed by Andy Smith - NOT Ray A. Smith. Thus, it was a stray document - outside of our chain of title.
In Ohio, the grantor/grantee indexes are the official indexes. Some counties also provide tract indexes, which index the recorded documents by legal description. In such a county, we would have been able to find the mortgage, regardless of the incorrect name. This county, however, does not maintain a tract index.
It is also possible, that we could have found this mortgage if the book indexes were still maintained. In such a case, it is possible that both mortgages would have been indexed on the same pages and we may have picked it up by scanning the brief legal description provided in the index. But, with the literal searching that we have with the computers in this county, it would never have been found. In this county we enter the last name and first few letters of the first name. Thus, "Smith R" would not have returned any entries for "Andy Smith."
In my opinion, this mortgage was outside the chain of title and does not provide constructive notice to third parties. Had it not been brought to the attention of our client, I don't think that they (or we) would have been liable for missing it. The second mortgage holder would have had a claim on their lender's policy, if they have one.
Whoever, prepared the mortgage or closed the loan, should have done a title search and noticed that title was not vested in Andy Smith, but rather Ray A. Smith. The mortgage should have been executed by Ray A. Smith, or at least should have contained an AKA to ensure that it was indexed in the chain of title.
Abstractors are not psychic. Computer indexing places limits on the abstractor that make it important for those preparing documents that will be recorded to get them right. I have always believed that if the mortgagor isn't signing exactly the way title is vested, an appropriate AKA should be added.
Robert A. Franco
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