                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-3013

D EBRA L. M ILLER, Trustee,
                                                Plaintiff-Appellant,
                                 v.

L AS ALLE B ANK N ATIONAL A SSOCIATION
as Trustee in Trust for the Holders of
Merrill Lynch Mortgage Investors Trust
Series 2002-AFCI and Alliance Funding,
a Division of SUPERIOR B ANK FSB,
                                     Defendants-Appellants.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
            No. 3:09-cv-184-WCL—William C. Lee, Judge.



   A RGUED D ECEMBER 7, 2009—D ECIDED F EBRUARY 19, 2010




  Before C UDAHY, W OOD , and E VANS, Circuit Judges.
  C UDAHY, Circuit Judge. This is an appeal involving a
puzzle of statutory interpretation. The issue comes to us
from an adversary proceeding in bankruptcy court be-
tween Linda Miller (Trustee) and LaSalle Bank National
2                                              No. 09-3013

Association (LaSalle). The bankruptcy court held that an
improperly recorded mortgage was avoidable under
Indiana law as amended in 2007 because it did not
impart constructive knowledge to a bona fide purchaser,
here the Trustee. The bankruptcy court held that the 2007
Amendment applied only to mortgages recorded after
the Amendment’s effective date of July 1, 2007. The
district court reversed, and the Trustee appeals. Because
we interpret the statute to apply to all mortgages regard-
less when recorded, we affirm the district court.


                     I. Background
   None of the operative facts is in dispute. In 2001, the
debtors executed and delivered to Alliance, LaSalle’s
predecessor, a mortgage on a property in Peru, Indiana, to
secure a $49,300 loan. The mortgage was filed with
the Miami County Recorder in May 2001, but the acknowl-
edgment had a technical defect because it did not
identify the individuals who appeared before the notary
and executed the mortgage document. After the debtors
filed a voluntary petition for relief under Chapter 13, in
March 2008, the Trustee brought an adversary pro-
ceeding to avoid LaSalle’s mortgage lien.1
  In Indiana, as elsewhere, a recorded, “properly acknowl-
edged” mortgage imparts constructive notice of its exis-
tence to subsequent bona fide purchasers (BFPs). See Bank



1
 See 11 U.S.C. § 544(a), (c). The Trustee’s rights arose on
October 19, 2007 when the bankruptcy petition was filed.
No. 09-3013                                                 3

of New York v. Nally, 820 N.E.2d 644, 648 (Ind. 2005). Prior
to the 2007 Amendment, a mortgage that was not
entitled to be recorded because of a technical defect in the
acknowledgment did not provide such notice. 2 See IND.
C ODE § 32-21-2-3 (requiring that a notary public authenti-
cate signature for grantors of mortgage); § 32-21-2-7 (now
modified by § 32-21-4-1, at issue in the present case);
Sandy Ridge Oil Co., Inc. v. Centerre Bank Nat’l Ass’n (In re
Sandy Ridge Oil Co., Inc.), 510 N.E.2d 667, 669 (Ind. 1987)
(stating the general rule); In re Stubbs, 330 B.R. 717, 731
(Bankr. N.D. Ind. 2005) (holding that an acknowledg-
ment was defective because it did not include the name
of the person who appeared before a notary public), aff’d
2006 WL 2361814 (N.D. Ind. 2006)); Baldin v. Calumet Nat’l
Bank (In re Baldin), 135 B.R. 586, 601-02 (Bankr. N.D.
Ind. 1991).
  In 2007, the Indiana General Assembly amended its
recording statute, IND. C ODE § 32-21-4-1, to allow recorded
mortgages with certain technical defects to provide
constructive notice as if the mortgages were properly
recorded and acknowledged. The district courts that
have interpreted the statute in this case, and both parties
in the present appeal, note that the legislature passed the
2007 Amendment in an apparent attempt to overrule



2
  Neither party contests that the acknowledgment in the
present appeal suffered from a technical defect. At oral argu-
ment, the Trustee conceded it was likely that, regardless of
the technical defect, the mortgage document would show up
in a chain of title.
4                                              No. 09-3013

In re Stubbs. In 2008, the Assembly again amended the
statute and made it clear that the statute applied to all
mortgages, regardless when recorded (2008 Amendment).
The parties dispute whether, before the 2008 Amend-
ment came into force, the 2007 Amendment applied to
purchasers of properties encumbered by certain technically
deficient mortgages recorded prior to July 1, 2007.
  In the present case, the bankruptcy court found the 2007
Amendment ambiguous but held that it was most naturally
interpreted to apply to mortgages recorded after July 1,
2007. The bankruptcy court ultimately grounded its
decision on several presumptions of statutory interpreta-
tion. It construed the purpose of the 2007 Amendment
as “divest[ing] a BFP and a bankruptcy trustee of the
right to avoid an improperly recorded mortgage.” Based
on the presumption that statutes are applied prospec-
tively, the bankruptcy court construed the statute to
apply only to mortgages recorded after the 2007 Amend-
ment’s effective date. On appeal, the district court dis-
agreed with the bankruptcy court’s interpretation of the
language of the Amendment. See Miller v. LaSalle Bank
Nat’l Ass’n (In re Gysin), 409 B.R. 485, 491 (N.D. Ind.
2009). The district court began by examining indicia of
legislative intent. It credited LaSalle’s argument that the
2008 Amendment was passed in response to frequent
arguments by bankruptcy trustees in the inter-amendment
period that the 2007 Amendment should be interpreted to
apply only to mortgages recorded after the 2007 Amend-
ment became effective. See id. at 489. The district court
thus found that the Indiana Legislature intended the
2007 Amendment to apply to all mortgages and ap-
No. 09-3013                                                  5

parently did not rely on the default rule that statutes are
to be applied prospectively. See id. at 491.


                   II. Standard of Review
  When reviewing a bankruptcy court’s decision, an
appeals court applies the same standard of review as
does the district court. We review de novo the district
court’s grant of summary judgment and its interpretation
of Indiana law. See Estate of Moreland v. Dieter, 576 F.3d
691, 695 (7th Cir. 2009) (citing Salve Regina Coll. v. Russell,
499 U.S. 225, 231 (1991)); Dick v. Conseco, Inc., 458 F.3d
573, 577 (7th Cir. 2006).


                       III. Discussion
  The purpose of a recording statute is to pro-
vide protection to subsequent purchasers, lessees and
mortgagees. See, e.g., Szakaly v. Smith, 544 N.E.2d 490, 491
(Ind. 1989). In 2003, after a 2002 recodification, Indiana’s
recording statute provided:
  Sec. 1.
    (a)
          (1) conveyance or mortgage of land or of any
          interest in land; and
          (2) a lease for more than three (3) years.
    must be recorded in the recorder’s office of the county
    where the land is situated.
6                                              No. 09-3013

    (b) A conveyance, mortgage, or lease takes priority
    according to the time of its filing. The conveyance,
    mortgage, or lease is fraudulent and void as against
    any subsequent purchaser, lessee, or mortgagee in
    good faith and for a valuable consideration if the
    purchaser’s, lessee’s, or mortgagee’s deed, mortgage,
    or lease is first recorded.
IND. C ODE § 32-21-4-1 (2002).
  An amendment in 2003 moved the last phrase of (a) to
become the introductory phrase of the subsection (“The
following must be recorded. . . .”), and the 2007 Amend-
ment provided subsection (c):
    (c) This subsection applies only to a mortgage. If:
        (1) an instrument referred to in subsection (a) is
        recorded; and
        (2) the instrument does not comply with the:
            (A) requirements of:
                (i) IC 32-21-2-3; or
                (ii) IC 32-21-2-7; or
            (B) technical requirements of IC 36-2-11-16(c);
        the instrument is validly recorded and provides
        constructive notice of the contents of the instru-
        ment as of the date of filing.
P.L. 135-2007 § 2, 2007 Ind. Acts 1919, 1920 (effective
July 1, 2007) (emphasis added).
  The 2008 Amendment amended subsection (c) to add
“[t]his subsection applies regardless of when a mortgage
No. 09-3013                                                7

was recorded” after the first sentence. P.L. 129-2008, 2008
Ind. Acts 1908, 1908 (effective July 1, 2008). Consequently,
our interpretation of the 2007 Amendment affects only
properties “purchased” (here under the strong arm
powers of the Trustee) between July 1, 2007 and July 1,
2008.
   Indiana law includes familiar rules of statutory interpre-
tation. The statute is given its clear and plain meaning
if unambiguous, but if ambiguous the court must try to
ascertain the legislature’s intent, and the court’s primary
goal is to interpret the statute to effectuate that intent.
Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009); City
of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). The
Indiana Supreme Court describes the “intent” inquiry
as follows: “[t]he court will look to each and every part
of the statute; to the circumstances under which it was
enacted; to the old law upon the subject, if any; to
other statutes upon the same subjects, or relative sub-
jects, whether in force or repealed, to contemporaneous
legislative history, and to the evils and mischiefs to be
remedied.” See Ashlin Transp. Services, Inc. v. Indiana
Unemployment Ins. Bd., 637 N.E.2d 162, 166-67 (Ind. Ct.
App. 1994) (summarizing Indiana Supreme Court cases).
Because Indiana statutes have no explanatory committee
reports, there is little legislative history to examine
beyond amendments to the statute. See, e.g., C.C. v.
State, 907 N.E.2d 556, 558-59 (Ind. Ct. App. 2009).
  In addition to the presumption against retroactivity,
Indiana caselaw recognizes many other familiar presump-
tions of statutory interpretation: e.g., if language is used
8                                                No. 09-3013

in one section but omitted in another, the court presumes
that the legislature acted intentionally in doing so, see
City of Crown Point v. Misty Woods Properties, LLC, 864
N.E.2d 1069, 1076 (Ind. Ct. App. 2007) (internal citations
omitted); statutes in derogation of the common law are
to be strictly construed, see Stanley v. Walker, 906 N.E.2d
852, 862 (Ind. 2009) (Dickson, J., dissenting) (citing Bartrom
v. Adjustment Bureau, Inc., 618 N.E.2d 1, 10 (Ind. 1993));
and an amendment to a statute creates the rebuttable
presumption that the amendment was intended to
change the law, see Turner v. State, 870 N.E.2d 1083, 1087
(Ind. Ct. App. 2007). Lastly, when the legislature passes
several statutes during the same session, those should
be interpreted in harmony, to give effect to each. See,
e.g.,Ware v. State, 441 N.E.2d 20, 22-23 (Ind. Ct. App. 1982)
(internal citations omitted).
  We thus begin with the language of the statute. The
parties provide two interpretations of the phrase “is
recorded” in subsection (c). Both parties’ arguments are
reasonable, and we hold that the statute is ambiguous. The
bankruptcy court held, and the Trustee argues, that “is
recorded” is a present tense (passive) verb (having tempo-
ral significance)—and subsection (c) only applies to
mortgages that “[are] recorded” after the Amendment’s
effective date. They also note that § 32-21-4-2 (another
provision in the same chapter, added in 2002) uses
the language “this section applies to an instrument re-
gardless of when the instrument was recorded,” suggesting
that the legislature knew how to specify that a section
applied to all mortgages. On the other hand, the district
court held, and LaSalle contends, that “is recorded” is used
No. 09-3013                                                   9

as a past participle (having adjectival significance), and,
thus subsection (c) applies to all mortgages, whenever
recorded. The district court noted that the 2007 Amend-
ment includes another past participle “is validly re-
corded,” suggesting that “is recorded” is also a past
participle.3 LaSalle also argues that it is illogical that each
verb in § 32-21-4-1 “speaks” as of the date that it is
amended, since the statute has been amended many
times.4 Given that both of these constructions of the
statute are reasonable, we proceed to employ the tools of
statutory interpretation to clarify the legislature’s intent.
   Still addressing the plain meaning of the statute, the
Trustee contends that the amendment to Code § 32-21-4-
1(c) only applies to mortgages that are “recorded” and,
if it applied to all mortgages regardless when recorded,
the phrase “is recorded” would be surplusage because
subsection (a) already requires the mortgage to be re-
corded. It is, however, possible to read “is recorded” in
subsection (c) to clarify that the subsection does not
create an exception for technical violations in the acknowl-


3
  The original version of the bill used the phrase “a valid
recording” rather than “is validly recorded.” Senate Conference
Committee Report, available at http://www.in.gov/legislative/
bills/2007/SCCF/CC023201.001.html.
4
   The Trustee argues that the Lexis/Nexis headings provide
some clue to the meaning of the statute. We have recently noted
that the Indiana Legislature does not include official titles in
its enacting legislation. See Storie v. Randy’s Auto Sales, LLC,
589 F.3d 873, 877 (7th Cir. 2009). We therefore decline to
entertain these arguments.
10                                                  No. 09-3013

edgment to the mandatory recording requirement. That
is, reading the subsection (c) without “is recorded,”
someone might argue that subsection (c) creates an excep-
tion to both the mandatory recording required by subsec-
tion (a) and to the technical requirements it lists.
   Next, assuming that the 2007 Amendment is ambiguous,
the parties argue over indicia of legislative intent and
the presumption against retroactivity. In Indiana, absent
“strong and compelling” reasons, statutes will not be
interpreted to apply retroactively. See Martin v. State, 774
N.E.2d 43, 44 (Ind. 2002); In re Estate of Powers, 849 N.E.2d
1212, 1217 (Ind. Ct. App. 2006) (citing Bourbon Mini-Mart,
Inc. v. Gast Fuel & Services, Inc., 783 N.E.2d 253, 260 (Ind.
2003)). As an initial matter, the parties dispute whether
the 2007 Amendment has a retroactive effect. A statute is
retroactive if it “attaches new legal consequences to
events completed before [the law’s] enactment.” Estate of
Moreland v. Dieter, 576 F.3d 691, 696 (7th Cir. 2009) (quoting
Landgraf v. USI Film Prods., 511 U.S. 244, 286 (1994) (Scalia,
J., concurring)). However, as Justice Scalia explains in his
concurrence, a presumption against retroactivity should
only apply to the relevant “retroactivity event.” For
example, a ban on gambling is not “retroactive” as applied
to casino builders, even though it upsets their profit
expectations, because the relevant conduct for retro-
activity analysis is gambling, not casino construction.
Landgraf, 511 U.S. at 293 n.3.5



5
  The Trustee notes that the Supreme Court’s analysis of the
retroactive effect of statutes is not controlling on the state law
                                                    (continued...)
No. 09-3013                                                11

  The statute has no retroactive effect. The Trustee charac-
terizes the relevant “retroactivity event” as the recording
of the mortgage in 2001 and the legal consequences of that
past act. Under her interpretation, the 2007 Amendment
reaches back and changes the legal consequences of the
defective acknowledgment, that was “recorded” in 2001.
LaSalle claims that the relevant event is the attachment
of the BFP’s rights.
  We agree with LaSalle’s definition of the relevant
retroactivity event. The determination whether a statute
is permissibly retroactive may depend on whether the
statute, if it applies to past conduct, upsets vested sub-
stantive rights, liabilities or duties that arose before the
statute’s enactment. Landgraf, 511 U.S. at 280. This
inquiry is guided by “familiar considerations of fair
notice, reasonable reliance, and settled expectations.” See
Landgraf, 511 U.S. at 270. Then-Chief Judge Hamilton,
addressing the 2007 Amendment, explained, with reference
to Dieter, that “the 2007 [A]mendment did not change
the ‘calculus’ for any party or upset any reliance interests.”
See Boston v. The Huntington Nat’l Bank, No. 1:09-cv-0679-
DFH-JMS, 2009 WL 2563473, at *5 (S.D. Ind. Aug. 17, 2009)
(citing DeHart v. Anderson, 383 N.E.2d 431 (Ind. Ct. App.
1978) (holding that a statute that lowered the age
of majority to 18 did not have retroactive effect on the



5
  (...continued)
question whether the 2007 Amendment is being applied
retroactively if it renders valid the 2001 recording of the
debtors’ mortgage. Of course, we cite Landgraf as persuasive
authority.
12                                              No. 09-3013

plaintiff’s lawsuit when the applicable statute of limita-
tions was shortened because it was tied to the age of
majority)); see also O’Laughlin v. Barton, 582 N.E.2d 817
(Ind. 1991) (finding that a statute that allowed courts to
use a criminal defendant’s payment to the court to
satisfy a civil plaintiff’s judgment against him was not
retroactively applied even though it was used to dispose
of funds paid into the court before the statute’s passage).
We do not agree with the Trustee that debtors had vested
rights to the effect of technical defects at the time the
mortgage was recorded. The rights of the bank and the
debtors (here represented by the Trustee) vis-à-vis
other creditors were determined at the time the Trustee’s
strong-arm powers arose. The 2007 Amendment does
change the rights of BFPs for purchases made after
July 2007—but that effect is clearly prospective. As ex-
plained above, the bankruptcy trustee’s rights arose in
2007, after the effective date of the 2007 Amendment.
  In contrast to the present case, in Dieter, an amended
statute required the government to pay for any adverse
judgment against its employees if the government de-
fended or had the opportunity to defend its employee;
under the prior version of the statute, the government
could decline to indemnify the employee on the basis
of public interest. See 576 F.3d at 696. The Seventh Circuit
determined that the amended statute attached new conse-
quences to past events because the government chose
to defend the employees at trial before it knew that it
would necessarily be on the hook for a possible adverse
judgment. Id. at 696-97; see also State v. Pelley, 828 N.E.2d
915, 919-20 (Ind. 2005) (holding that a statute that
No. 09-3013                                               13

created a counselor/client privilege should not be retro-
actively applied to records created prior to the statute
because of the presumption against retroactivity). Trying
to apply the reasoning of Dieter to the present case, it
makes no sense to suggest that the debtors did not
choose to defectively record their mortgage in reliance
on a settled expectation that it could avoid the bank’s lien.
  We next address the presumption that an amendment
altering a prior statute suggests that the legislature in-
tended to change the meaning of the law “unless it clearly
appears that the amendment was passed to clarify the
legislature’s original intent.” Sun Life Assur. Co. of Canada
v. Indiana Dept. of Ins., 868 N.E.2d 50, 56 (Ind. Ct. App.
2007) (citing Wright v. Fowler, 459 N.E.2d 386, 389-90 (Ind.
Ct. App. 1984) (interpreting an amendment to have
changed the law in part because the assembly added
categories of employers to the statute and separately
added provisions to provide procedures for addressing
those employers)); Olatunji v. State, 788 N.E.2d 1268, 1272
(Ind. Ct. App. 2003) (holding that a legislative amend-
ment that appeared to approve the analysis of a recent
Indiana Supreme Court case was a clarification rather
than an amendment). The Supreme Court of Indiana
recently muddied the waters by explaining that “[w]here
it appears that the Legislature amends a statute to
express its original intention more clearly, the normal
presumption that an amendment changes a statute’s
meaning does not apply.” See Indiana Dept. of Revenue v.
Kitchin Hospitality, LLC, 907 N.E.2d 997, 1002 (Ind. 2009)
(citing other tax cases and holding that a new definition
was merely a clarification).
14                                                  No. 09-3013

  We recently discussed several factors that aid in deter-
mining whether an amendment is clarifying rather than
substantive, see Middleton v. City of Chicago, 578 F.3d 655,
664 (7th Cir. 2009): “whether the enacting body declared
that it was clarifying a prior enactment; whether a
conflict or ambiguity existed prior to the amendment; and
whether the amendment is consistent with a reasonable
interpretation of the prior enactment and its legislative
history.” 578 F.3d at 663-64. The Trustee avers that the
2008 Amendment and its legislative history are silent on
the issue whether it clarified the statute, and no inter-
vening court cases alerted the legislature that there was
a conflict or ambiguity regarding the interpretation of the
2007 Amendment. LaSalle responds that the synopsis
attached to the 2008 Amendment indicates that the
Amendment “specifies” (as opposed to “amends” or
“changes”) that subsection (c) applies to all mortgages,
regardless when recorded, further, the statute is clearly
ambiguous, considering all the trouble it has given
courts and the fights it has inspired between litigants.6
 It was the same legislative session that enacted both
amendments within 10 months. In addition, some of the


6
  Although it is unclear what weight a court should give the
Indiana legislature’s comments in the synopsis attached to a bill,
an Indiana appeals court has recently relied on a bill’s
synopsis to establish that the bill was enacted in response to a
review by the sentencing policy study committee, see Collins
v. State, 911 N.E.2d 700, 709 (Ind. Ct. App. 2009), suggesting
that a synopsis is entitled to some weight in the court’s
analysis of a statute’s proper interpretation.
No. 09-3013                                                15

sponsors of the 2008 Amendment were also those that
sponsored the 2007 Amendment. As noted at oral argu-
ment, in the inter-amendment period, bankruptcy
trustees argued that the 2007 Amendment did not apply
to older mortgages, and this activity may have prompted
the legislature to act. We certainly acknowledge the
possibility that bank lobbyists won a partial victory
over general creditors in 2007 and achieved their legisla-
tive goal in 2008. In addition, it is possible the legislature
amended the statute in 2008 because the economic land-
scape changed dramatically in the intervening period.
Weighing all of those possible explanations, we con-
clude that the best interpretation of the legislature’s
intention regarding the 2008 Amendment was that it
clarified the 2007 Amendment. We turn, as persuasive
authority, to the factors in Middleton: given the obvious
ambiguity in the 2007 Amendment, and the apparent
activity of the bankruptcy trustees in aggressively
seeking to avoid mortgages on technical grounds even
after the 2007 Amendment, we hold that the 2008 Amend-
ment did not change the meaning of the statute as
amended in 2007, but merely clarified it to effectuate
the legislature’s intent in 2007. See Middleton, 578 F.3d
at 663-64.
  Although the foregoing disposes of the case, we
pause before the parties’ other arguments regarding
legislative intent before concluding. Thus, the Trustee
urges that the legislation’s synopsis indicated that the
General Assembly only intended the Amendment to
apply to certain, but not all, recorded mortgages. It reads
the modifier “certain” as classifying types of mortgages
16                                              No. 09-3013

based on when they were filed, pre- or post-July 2007. The
synopsis is again ambiguous. In contrast to the Trustee’s
interpretation, it seems equally, if not more plausible,
that the Assembly used the word “certain” to differentiate
amongst the technical defects the mortgages suffered—
differentiating those specified in the statutes listed in
subsection (c) from other possible defects. In addition,
the synopsis of the 2008 Amendment notes that the
Amendment: “[s]pecifies that a provision in current law,
which states that a recorded mortgage not meeting certain
statutory requirements constitutes constructive notice,
applies regardless of when the mortgage was recorded.”
Consequently, the same legislature, 10 months later,
omitted the word “certain” when it described its under-
standing of the law after the 2007 Amendment. While the
pronouncements of a subsequent legislative body on a
prior statute are not binding, they are “respectfully consid-
ered” when interpreting an unclear statute. See Indiana
State Police Dept. v. Turner, 577 N.E.2d 598, 602 (Ind. Ct.
App. 1991). The synopses of the two statutes are too
ambiguous to provide any assistance in interpreting the
statute as it stood in the second half of 2007.
   In sum, the 2007 Amendment is ambiguous, thus,
considering the above-discussed indicia of legislative
intent including, most importantly, the 2008 Amendment
that quickly clarified that the provision applied to
all mortgages, the legislature likely intended the 2007
Amendment to apply to all mortgages, whenever
filed. And we note that this result was reached by other
district courts reviewing bankruptcy court decisions. See
Nat’l City Mortgage Co. v. Yoon, No. 2:09-cv-134, 2009
No. 09-3013                                           17

WL 2951122 (N.D. Ind. Sept. 10, 2009); Boston v. The Hun-
tington Nat’l Bank, No. 1:09-cv-0679-DFH-JMS, 2009 WL
2563473 (S.D. Ind. Aug. 17, 2009). For the foregoing rea-
sons, therefore, the district court here is
                                              A FFIRMED.




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