Foreclosure Document Fraud Drives Notaries to Take the Fifth

Foreclosure Document Mess Drives Notaries to Take the Fifth
Foreclosure Document Mess Drives Notaries to Take the Fifth

Among the many legal problems now being discovered with the foreclosure documents that banks have been using are false notarizations. The most typical variety of this problem occurs when a notary certifies that the person whose signature appears on a document really did sign it, even though the notary didn't witness the signing.

While such false notarizing is criminal, I've not yet heard of any notaries being charged. However, in Maryland, Steve Lash of The Daily Record reports that 18 current and former notaries have invoked their Fifth Amendment right against self-incrimination in a foreclosure case.

The notaries were brought before the court in proceedings involving a lawyer who didn't actually sign numerous foreclosure documents that were nonetheless notarized saying he did. The judge excused the notaries from the proceedings after they took the Fifth, and apparently, they aren't facing prosecution.

Title Issues Trip Up Innocent Buyers

Nonetheless, the ramifications of those false certifications are significant. Because the lawyer -- Thomas P. Dore -- didn't sign the documents as certified, the judge has dismissed five foreclosures, although the banks can refile. In addition, the judge is considering what to do in 15 other cases where Dore isn't sure whether or not he signed the documents, and the judge is also weighing what to do about 12 Dore foreclosures that were completed in which the properties have since been sold. This is a striking situation when you consider the judge's options. Might he rescind the sales? Void the foreclosures, but let the sales stand?

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The thorny question of how to handle cases when wrongfully foreclosed-upon properties were sold to unwitting homebuyers is starting to surface due to a host of legal issues, and it will only get worse as the pervasiveness of improperly transferred notes and flawed mortgage documentation becomes clearer. In Pennsylvania, thousands of foreclosures were undertaken using documents not signed by an attorney, which may void them. What happens to the innocent buyers of those foreclosed-upon properties?

In Massachusetts, where a recent top court ruling has jeopardized many completed foreclosures but didn't address what happens to the innocent buyers, the issue will be resolved soon. The Massachusetts high court has agreed to hear the appeal in Bevilacqua v. Rodriguez, a case in which the innocent buyer had tried to clear the title to his property, only to be told by the judge that he didn't own the property. That's because the bank that foreclosed on the former owner didn't own the mortgage when it foreclosed, so it couldn't take title to the property. Since the bank couldn't take title, it couldn't sell the property, either.

The bottom line is, though we're a few years into this foreclosure crisis, we're not even at the end of the beginning: New consequences from the failures of banks and their attorneys to follow the law during the real estate bubble keep surfacing every day.