                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                    File Name: 05a0221a.06

                  UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                        X
                                                         -
                   No. 02-4468
                                                         -
                                                         -
In re: DOUGLAS R. HUFFMAN; In re: ROBIN LYNN
                                                         -
                                                              Nos. 02-4468; 03-3174/3175
HUFFMAN; In re: EDWARD N. TUCHOLSKI; In re:
                                                         ,
DEBBIE S. TUCHOLSKI; In re: JOHN J. RICE; In re:          >
JOSEPHINE E. RICE,                                       -
                                                         -
                                                         -
                                           Debtors.

                                                         -
                                                         -
PATRICIA A. KOVACS, Trustee,
                                                         -
                                  Plaintiff-Appellee,
                                                         -
          v.                                             -
                                                         -
                                                         -
                                                         -
FIRST UNION HOME EQUITY BANK, et al.,
                                                         -
                                     Defendants,
                                                         -
FIRST UNION MORTGAGE CORPORATION,                        -
                                                         -
                                                         -
                         Defendant-Appellant.

                                                         -
                                                         -
                   No. 03-3174
                                                         -
                                                         -
In re: DOUGLAS R. HUFFMAN; In re: ROBIN LYNN
HUFFMAN,                                                 -
                                                         -
                                                         -
                                        Debtors.

                                                         -
                                                         -
PATRICIA A. KOVACS, Trustee,
                                                         -
                                  Plaintiff-Appellee,
                                                         -
          v.                                             -
                                                         -
                                                         -
                                                         -
FIRST UNION HOME EQUITY BANK, et al.,

                                                         -
                         Defendants-Appellants.
                                                         -
                                                         -
                   No. 03-3175
                                                         -
                                                         -
                                                         -
In re: EDWARD N. TUCHOLSKI; In re: DEBBIE S.

                                                         -
TUCHOLSKI,
                                                         -
                                        Debtors.
                                                         -
JOHN N. GRAHAM, Trustee; PATRICIA A. KOVACS,

                                              1
Nos. 02-4468; 03-3174/3175                   In re Huffman, et al.                                   Page 2



                                                      -
                                                      -
 Trustee,
                                                      -
                                     Plaintiffs-Appellees,
                                                      -
          v.                                          -
                                                      -
                                                      -
                                                      -
 NATIONAL LENDING CENTER, INC.; FIRST UNION

                           Defendants-Appellants. -
 NATIONAL BANK, as Indenture Trustee,
                                                      -
                                                     N
                      Appeal from the United States District Court
                       for the Northern District of Ohio at Toledo.
               Nos. 01-07219/7220/7426—James G. Carr, District Judge.
                               Argued and Submitted: March 19, 2004
                                  Decided and Filed: May 18, 2005
      Before: COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge.*
                                          _________________
                                               COUNSEL
ARGUED: Gregory W. Happ, Medina, Ohio, for Appellant. Ericka S. Parker, HUNTER &
SCHANK CO. LPA, Toledo, Ohio, for Appellee. ON BRIEF: David A. Freeburg, McFADDEN
& ASSOCIATES CO. L.P.A., Cleveland, Ohio, Gregory W. Happ, Medina, Ohio, John C. Deal,
ROBOL & WINKLER, Columbus, Ohio, Robert B. Holman, LOUIS S. FRANK & ASSOCIATES,
Oakwood Village, Ohio, for Appellants. Ericka S. Parker, HUNTER & SCHANK CO. LPA,
Toledo, Ohio, for Appellees. Michael Sikora III, HAVENS WILLIS LLC, Columbus, Ohio, for
Amicus Curiae.
                                       ______________________
                                        AMENDED OPINION
                                       ______________________
        WILLIAM W SCHWARZER, Senior District Judge. These are three consolidated appeals
from judgments of the district court allowing the bankruptcy trustee to avoid mortgages held by the
defendants, First Union Home Equity Bank and ContiMortgage Corporation, under 11 U.S.C. § 544.
In In re Rice, No. 02-4468, the district court exercised its appellate jurisdiction under 28 U.S.C.
§ 158(a) and reversed a judgment by the bankruptcy court, which had rejected the trustee’s challenge
to the validity of the mortgage. In In re Huffman and In re Tucholski, Nos. 03-3174 and 03-3175,
the district court exercised its original jurisdiction under 28 U.S.C. § 1334(a) and granted summary
judgment upholding the trustee’s challenge to the validity of the mortgages. We have jurisdiction
pursuant to 28 U.S.C. § 158(d). Our review is de novo. Lanier v. Bryant, 332 F.3d 999, 1003 (6th
Cir. 2003); Investors Credit Corp. v. Batie (In re Batie), 995 F.2d 85, 88-89 (6th Cir. 1993). For the


        *
          The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of
California, sitting by designation.
Nos. 02-4468; 03-3174/3175                      In re Huffman, et al.                                             Page 3


reasons stated, we vacate the judgment of the district court in No. 02-4468 and affirm the judgments
in Nos. 03-3174 and 03-3175.1
                                                         I.
        We must decide whether the trustee was entitled to avoid the three mortgages under Ohio
law. Under the bankruptcy code, a bankruptcy trustee “may avoid any transfer of property of the
debtor or any obligation incurred by the debtor that is voidable by . . . a bona fide purchaser.”
11 U.S.C. § 544(a)(3); Buzulencia v. TMS Mortgage, Inc. (In re Baker), 300 B.R. 298, 307 (Bankr.
N.D. Ohio 2003) (stating that “[s]ection 544(a) expressly provides that the trustee shall have, as of
the commencement of the case, the rights and powers of a bona fide purchaser”). Only properly
executed mortgages take priority over a bona fide purchaser under Ohio law. OHIO REV. CODE
(“ORC”) § 5301.25; Citizens Nat’l Bank in Zanesville v. Denison, 133 N.E.2d 329, 332-33 (Ohio
1956). Former ORC § 5301.01 (repealed Feb. 1, 2002) required the presence of two witnesses at
the signing of any mortgage. Two of the three mortgages (in the Hoffman and Tucholski cases) were
not properly witnessed and thus, under the former law, the trustee would be entitled to avoid them.
The question is whether subsequent changes in Ohio law validate the execution of those mortgages.
With respect to the Rice mortgage, there is evidence in the record sufficient to raise a triable issue
as to whether it was properly witnessed. Accordingly, we vacate the judgment in No 02-4468 and
remand the case for an evidentiary hearing.
        A.     At the time the mortgages were executed and recorded during 2000, ORC § 5301.234
(which has since been repealed) was in effect. The statute provided that a recorded mortgage was
“irrebuttably presumed to be properly executed, regardless  of any actual or alleged defect in the
witnessing” of the mortgage. See § 5301.234(A).2 The recording of a mortgage was constructive
notice to all persons, including a subsequent bona fide purchaser, regardless of any defect in
witnessing. § 5301.234(C). Thus, under § 5301.234, the trustee would be unable to avoid the
mortgages.
        The district court held that the statute violated the Ohio Constitution’s one-subject rule,
however, and we agree. Article II, § 15(D) of the Ohio Constitution provides, in relevant part, that
“No bill shall contain more than one subject, which shall be clearly expressed in its title.” The Ohio
General Assembly passed ORC § 5301.234 as part of House Bill No. 163 (1999) (“HB 163”) which
contained thirty-one sections and amended, reenacted or repealed fifty-three provisions of the Ohio
Revised Code relating to a wide range of subjects. Subsequent to our prior decision, the Ohio
Supreme Court, on certification from this court, held that § 5301.234 violates the one-subject rule
of the Ohio Constitution and is unconstitutional under Ohio law. In re Nowak, 104 Ohio St.3d 466
(2004).
       Section 5301.234, being unconstitutional, had no force at the commencement of the cases
and could not bar the trustee from avoiding the mortgages. Rossborough Mfg. Co. v. Trimble,
301 F.3d 482, 491 (6th Cir. 2002) (“The rule in Ohio has long been that when a statute is held to
have been unconstitutional as of its enactment, that statute is void ab initio.”); see also City of


       1
           The opinion and judgment heretofore issued are withdrawn. The petitions for rehearing are denied.
       2
        Ohio Revised Code § 5301.234(A) provided:
       Any recorded mortgage is irrebuttably presumed to be properly executed, regardless of any actual or
       alleged defect in the witnessing or acknowledgment on the mortgage, unless one of the following
       applies:
                (1)       the mortgagor, under oath, denies signing the mortgage;
                (2)       the mortgagor is not available, but there is other sworn evidence of a fraud upon the
                          mortgagor.
Nos. 02-4468; 03-3174/3175                        In re Huffman, et al.                                           Page 4


Middletown v. Ferguson, 495 N.E.2d 380, 388 (Ohio 1986) (“‘An unconstitutional act is not a law;
it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal
contemplation, as inoperative as though     it had never been passed.’”) (quoting Norton v. Shelby
County, 118 U.S. 425, 442 (1886)).3 Therefore, the law in effect at the time these cases were
commenced was former § 5301.01, which required the presence of two witnesses at the signing of
the mortgages.
        B.      A question remains, however, whether the amended version of ORC § 5301.01 saves
the mortgages. In 2001, after the filing of the complaints in the case at bar, the Ohio legislature
amended § 5301.01 by adding a savings provision. Under that provision, a mortgage executed prior
to the amendment’s effective date is presumed valid even if not attested by two witnesses, unless
the mortgagor’s signature thereon was obtained by fraud. § 5301.01(B)(1)(a). Moreover, “[t]he
recording of the [mortgage] in the office of the county recorder . . . is constructive notice of the
instrument to all persons.” § 5301.01(B)(1)(b).
        The provision, on its face, appears to save the mortgages. But the amended statute, though
retroactive by its terms, cannot be applied retroactively to impair the trustee’s vested rights. The
statute specifically protects vested rights; § 5301.01(B)(2) states that “[d]ivision (B)(1) of this
section does not affect any accrued substantive rights or vested rights that came into existence prior
to the effective date of this amendment.” Because § 5301.234 was unconstitutional, the original
version of § 5301.01 was the only valid law in effect at the time the debtors’ petitions were filed,
and its provisions (requiring two witnesses) controlled. Because the trustee was entitled to avoid
the mortgages under former § 5301.01, her rights vested, and by the terms of § 5301.01(B)(2) they
are not affected by the subsequent amendment. See McClatchey v. Altegra Credit Co. (In re Carte),
303 B.R. 338, 342 (Bankr. S.D. Ohio 2003); Baker, 300 B.R. at 307-308 (“Section 544(a) vests a
trustee’s rights as a bona fide purchaser of real property as of the commencement of the case.”).
Amended § 5301.01, therefore, does not divest the trustee of the rights she had as a bona fide
purchaser under the law governing at the commencement of these cases, and she was entitled to
avoid the Huffman and Tucholski mortgages.
                                                           II.
        Defendants also argue that we should reverse the district court’s ruling because it
violated the Eleventh Amendment of the United States Constitution. This contention is patently
meritless. The Eleventh Amendment protects a state from actions seeking relief from the state.
See Doe v. Wigginton, 21 F.3d 733, 736 (6th Cir. 1994); see also Edelman v. Jordan, 415 U.S.
651, 662-63 (1974). Although the complaints named the Ohio Attorney General as a defendant,
they sought no relief from or against the state, but only against the mortgage holders.




         3
           Ohio courts recognize an exception to this rule “in those cases in which contractual rights have arisen or a
party has acquired vested rights under prior law.” Roberts v. Treasurer, 770 N.E.2d 1085, 1091 (Ohio Ct. App. 2001).
That exception is not applicable here because § 5301.234 did not create a vested right in Defendants. “[A] fundamental
distinction exists between a law changing accrued substantive rights and a law which changes the remedy for the
enforcement of those rights.” Weil v. Taxicabs of Cincinnati, Inc., 39 N.E.2d 148, 151 (Ohio 1942). A law changes
substantive rights when it “creates or imposes an obligation where none existed before,” whereas remedial provisions
“have to do with the methods and procedure by which rights are recognized, protected and enforced, not with the rights
themselves.” Id.; see also Bielat v. Bielat, 721 N.E.2d 28, 33-34 (Ohio 2000). Section 5301.234 was remedial: it did
not grant Defendants any rights, but rather changed the quantum of proof required to recognize, protect and enforce the
rights created by the mortgage contracts. Cf. In re Stewart, 771 N.E.2d at 250-51 (advising that § 5301.2234 can “be
applied to presume the validity of a mortgagee in a bankruptcy case filed after the effective date of the statute, when the
mortgage at issue in the bankruptcy case was recorded before the statute’s effective date”).
Nos. 02-4468; 03-3174/3175            In re Huffman, et al.                           Page 5


                                      CONCLUSION
       For the reasons stated, the judgment of the district court in No. 02-4468 is VACATED
and the matter REMANDED for an evidentiary hearing. The judgments of the district court in
Nos. 03-3174 and 03-3175 are AFFIRMED.
