So What Are Notarizations?
A Notary Public is a person granted the power by state law to accept sworn testimony and create a document that will become a public record. The creation of that document, though applying a notary "seal," is "notarization." States regulate this power, requiring notaries to take courses on their responsibilities. They also set forth a variety of requirements that must be met before a notarization can occur. I believe these (currently) include, at a minimum, the physical presence of the notary at the time of signature, and perhaps some verification that the person signing have read the document in question and have "personal" knowledge of the facts to which he or she is attesting. That verification, of course, is a pretty minimal thing, often a mere reference in the affidavit itself. The person signing the affidavit is under oath, although this is written by the notary (usually with a stamp) rather than "administered." It can be a pretty lax thing, and it is certainly not difficult to create a legitimate affidavit.
Lax, but Not Lax Enough
The requirements have apparently been too heavy for foreclosing institutions, though, as stories of people signing 8,000 affidavits per month are coming to light or signing affidavits far from the notary or on different days than the notary signed. Signing an affidavit without reading it, where you state in the affidavit that you have read it, is perjury. A notary notarizing a blank document is, in every jurisdiction of which I know, grounds for the dismissal of the notary. It may even be criminal. The foreclosing institutions have rendered the legal apparatus, designed to protect borrowers from illegal foreclosures, a mockery. And this is probably because they do not have the documents they need to foreclose legally and do not even know where to find them.
Right now the foreclosing institutions linked to these activities are under investigation by various state attorneys general and are possibly liable to the people they have foreclosed upon for hundreds of millions of dollars, perhaps billions. Some banks have suspended foreclosures pending various outcomes.
How Would The New Bill Affect These Foreclosures?
Because the bill requires "recognition" of a "lawful" notarization, it is apparently designed to be a "procedural" requirement. That may not sound like much to non-lawyers, but it is actually a big deal and one of the most suspicious aspects of the legislation. See, "procedural" laws are normally applied retroactively. The bill then may pave the way to whitewashing all these illegal affidavits retroactively, stealing the last rights of the banks' newly homeless victims.
It Would Probably Whitewash the Fraudulent Affidavits
It would appear that all these affidavits were not "lawful" notarizations at the time they were made, but what would happen if a state court in Delaware or North Dakota (to mention just two jurisdictions that go out of their ways to appease corporate interests) ruled that they were, in fact, lawful? Or what would happen if any state passed legislation that purported to authorize, retroactively, these affidavits? These answers are not clear to me, and I would suggest that they cannot be made sufficiently clear to justify the law. There is a high risk that the law would be applied retroactively to render these fraudulent affidavits effective.
And to be real for a minute, isn't that exactly what the purpose of the legislation clearly was?
And, what is clear is that under the legislation, if a state actually did that, it could export its policy to every other state in the Union, regardless of whether those states wanted it.
A Notary Public is a person granted the power by state law to accept sworn testimony and create a document that will become a public record. The creation of that document, though applying a notary "seal," is "notarization." States regulate this power, requiring notaries to take courses on their responsibilities. They also set forth a variety of requirements that must be met before a notarization can occur. I believe these (currently) include, at a minimum, the physical presence of the notary at the time of signature, and perhaps some verification that the person signing have read the document in question and have "personal" knowledge of the facts to which he or she is attesting. That verification, of course, is a pretty minimal thing, often a mere reference in the affidavit itself. The person signing the affidavit is under oath, although this is written by the notary (usually with a stamp) rather than "administered." It can be a pretty lax thing, and it is certainly not difficult to create a legitimate affidavit.
Lax, but Not Lax Enough
The requirements have apparently been too heavy for foreclosing institutions, though, as stories of people signing 8,000 affidavits per month are coming to light or signing affidavits far from the notary or on different days than the notary signed. Signing an affidavit without reading it, where you state in the affidavit that you have read it, is perjury. A notary notarizing a blank document is, in every jurisdiction of which I know, grounds for the dismissal of the notary. It may even be criminal. The foreclosing institutions have rendered the legal apparatus, designed to protect borrowers from illegal foreclosures, a mockery. And this is probably because they do not have the documents they need to foreclose legally and do not even know where to find them.
Right now the foreclosing institutions linked to these activities are under investigation by various state attorneys general and are possibly liable to the people they have foreclosed upon for hundreds of millions of dollars, perhaps billions. Some banks have suspended foreclosures pending various outcomes.
How Would The New Bill Affect These Foreclosures?
Because the bill requires "recognition" of a "lawful" notarization, it is apparently designed to be a "procedural" requirement. That may not sound like much to non-lawyers, but it is actually a big deal and one of the most suspicious aspects of the legislation. See, "procedural" laws are normally applied retroactively. The bill then may pave the way to whitewashing all these illegal affidavits retroactively, stealing the last rights of the banks' newly homeless victims.
It Would Probably Whitewash the Fraudulent Affidavits
It would appear that all these affidavits were not "lawful" notarizations at the time they were made, but what would happen if a state court in Delaware or North Dakota (to mention just two jurisdictions that go out of their ways to appease corporate interests) ruled that they were, in fact, lawful? Or what would happen if any state passed legislation that purported to authorize, retroactively, these affidavits? These answers are not clear to me, and I would suggest that they cannot be made sufficiently clear to justify the law. There is a high risk that the law would be applied retroactively to render these fraudulent affidavits effective.
And to be real for a minute, isn't that exactly what the purpose of the legislation clearly was?
And, what is clear is that under the legislation, if a state actually did that, it could export its policy to every other state in the Union, regardless of whether those states wanted it.
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