On February 28, 2013, the United States District Court for the Central District of Illinois, Urbana Division confirmed what most lenders believed – that the Bankruptcy Court decided In re Crane improperly, and that lenders are not required to state the interest rate and maturity date on the face of a mortgage in order to perfect the mortgage.
The District Court relied in part upon the recent legislative amendment in its decision in The Gifford State Bank v. Richardson case. Gifford was the appeal from the Crane decision, which allowed a bankruptcy trustee to avoid two mortgages because the face of the mortgages did not contain the interest rate or the date of maturity. The District Court reversed the Bankruptcy Court and determined that the lack of the interest rate and maturity date on the face of the mortgages did not render those mortgages avoidable by the bankruptcy trustee. The District Court found that the term "may" in the Illinois statute did not mandate the inclusion of the interest rate and the maturity date for a mortgage to be properly perfected. With this decision, the District Court distinguished and differentiated the cases relied upon by the bankruptcy trustee and the Bankruptcy Court and cited authority holding that the interest rate and maturity date are not mandatory requirements. The District Court also found that when notes and mortgages refer to one another and provide the interest rate and maturity date, they must be construed together.
On Friday March 8, 2013, the bankruptcy trustee appealed the District Court decision to the United States Court of Appeals for the Seventh Circuit. In light of the recent legislative activity, however, any appellate resolution that voids the mortgages would at first blush appear to be limited to this case.© 2013 Much Shelist, P.C.