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IN RE BURNS

No. 00-8006.

269 B.R. 20 (2001)

In re Gerald Dale BURNS Jr. and Linda Jane Burns, Debtors. Andrew W. Suhar, Trustee, Plaintiff-Appellee, v. Gerald Dale Burns Jr., et al., Defendants-Appellees, IMC Mortgage Company, Defendant-Appellant.

United States Bankruptcy Appellate Panel of the Sixth Circuit.

Decided and Filed November 2, 2001.

Attorney(s) appearing for the Case

Amelia A. Bower, McFadden & Associates, argued and on brief, Cleveland, OH, Terry A. Swauger, Warren, OH, for Defendant-Appellant.

Frederic P. Schwieg, argued and on brief, Rocky River, OH, Andrew W. Suhar, Youngstown, OH, for Plaintiff-Appellee.

Before: AUG, BROWN, and HOWARD, Bankruptcy Appellate Panel Judges.

OPINION

WILLIAM HOUSTON BROWN, Bankruptcy Judge.

The assignee mortgage company appeals the bankruptcy court's finding that the mortgage was not signed by the Debtors in the presence of two witnesses, as required by Ohio law, and that court's decision that the trustee could avoid the mortgage under 11 U.S.C. § 544(a)(3), without giving any lien in favor of the mortgage company under § 550(e).

I. STATEMENT OF ISSUE

Although IMC...

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