THE GOAL IS TO SHOW THAT THE ABSENCE OF A TRANSACTION, NOTWITHSTANDING THE REFERENCE IN A DOCUMENT.
While the defective notarization does not itself invalidate the document, it certainly suggests questions about how that happened and then to question whether the same thing happened with other documents or endorsements. If you can cast sufficient doubt as to the trustworthiness of documents (and the party proffering it to the Court) of then the laws of evidence require that the proffering party actually prove the transaction instead of having the Court presume that the transaction referenced in a document actually existed.
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Whether an instrument is notarized or not it is still valid between the parties to the instrument. So a mortgage for instance is required to be notarized only to get it recorded, which is for the protection of the lender and not for the protection of the debtor. Whether it was recorded or not the mortgage becomes enforceable when it is signed.
So the problem is this: if the notary’s commission expired, then the instrument was not properly “RECORDED”. Theoretically there is an academic argument to challenge the procedural legitimacy of a foreclosure if the notary was forged or expired. But as a practical matter nothing changes in the end. However, if some judge is convinced that not having recorded it in county records means that the lien was not perfected, it could cause substantial delays in the process.
BUT all that said, the use of a notary that has expired suggests that the notary was robosigned. AND robosigning could be evidence that other documents are robosigning, which is a form of forgery. And robosigning itself suggests the possibility or even likelihood of fabrication of documents including the note, assignments, endorsements etc. CAUTION: You cant just say it. You most prove the possibility or even probability of forgery, fabrication and robo-signing.
If the robo-signing and fabrication issue are properly highlighted at trial or in motions THEN you have cast doubt on the trustworthiness of all the documents (or at least the ones where robo-signing and forgery are put into question). THAT in turn suggests that legal presumptions arising from the apparent facial validity of an instrument would not apply. Check the laws of your state.
In Florida once sufficient doubt is cast upon the trustworthiness of the documents, the documents are no longer sufficient to prove the truth of the matter asserted — i.e., in a note that money was loaned to the homeowner, in an assignment that the debt was sold (not just a sale of the paper instrument). This would require the the party proffering said documents to go in reverse, which we are very confident they cannot do — i.e., they must first establish the transaction and then prove that the instrument is an accurate reflection of the actual financial transaction.
There is no “prejudice” to a foreclosing party if they must prove up the transactions, since they are asserting that those transactions occurred anyway. What has changed is that instead of presuming and assuming the transactions shown on the documents were real, they must simply prove that the transaction occurred by showing delivery of money in exchange for the note, or money in exchange for the assignment or money in exchange for the endorsement.
Filed under: foreclosure | Tagged: absence of real transaction, defective notary, doubt vs. defense, Fabrication of documents, forgery, laws of evidence, legal presumptions, Robo-Signing, TRUTH |
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