by Brian Mahany
In order to foreclose on a home, a bank must prove that the homeowner has defaulted on the loan and that the bank owns the mortgage. Because mortgages today are routinely sold to investors, banks usually hold an assignment of the mortgage showing they are the rightful owner. As we learned in the “robo-signing” scandal, the banks often can’t prove they own the paper.
While properties were increasingly weekly, no one really worried to much about a default. The buyer could simply sell the property and every one would be made whole. Obviously, the bottom dropped out of the market several years ago. The banks dirty secrets like Robo signings and forgeries probably would have gone on forever if the market had not crashed.
During the robo-signing scandal, it became clear that the banks were using low level employees to sign affidavits attesting that the borrower was in default and that the bank held the mortgage. Often, these employees had no personal knowledge of the loan whatsoever. They simply signed hundreds of affidavits per day. These affidavits clearly were fraudulent.
More recently, we have begun to encounter loan documents that were forged! The signatures of the borrowers or lenders were not genuine. Because most mortgage documents are notarized and forgery is a crime, the banks’ conduct has become criminal.
Notary publics are the people entrusted to witness and endorse signatures. A notary’s seal means that the notary has witnessed the signing of the document and personally knows the signers or has obtained some time of identification to verify their identity. Courts routinely accept notarized documents as authentic.
For hundreds of years, we have relied on notarized documents. As a disinterested party, all sides could generally rely on a notarized document being real. Once the banks started employing the notaries, that notion ended. In the name of “business convenience,” bankers have subverted the rule of law and the integrity of the judicial process.
Back in 1984, our U.S. Supreme Court recognized the importance of notaries and the weight their signature and seal carries. In a case challenging Texas prohibition on allowing non U.S. citizens to be notaries. The court had this to say about the importance of notaries:
“With the power to acknowledge instruments such as wills and deeds and leases and mortgages; to take out-of-court depositions; to administer oaths; and the discretion to refuse to perform any of the foregoing acts, notaries public in Texas are involved in countless matters of importance to the day-to-day functioning of state government. The Texas political community depends upon the notary public to insure that those persons executing documents are accurately identified, to refuse to certify any identification that is false or uncertain, and to insist that oaths are properly and accurately administered. Land titles and property succession depend upon the care and integrity of the notary public, as well as the familiarity of the notary with the community, to verify the authenticity of the execution of the documents…
To be sure, considerable damage could result from the negligent or dishonest performance of a notary’s duties.”
We hear that one register of deeds in North Carolina has brought suit to clean up the mess caused by fraudulent land records. Hopefully the banks that employed these dishonest notaries will be held accountable for the thousands of questionable documents recorded in foreclosure cases across the nation.
If you were the victim of a foreclosure using forged documents, you may be entitled to relief. Courts are beginning to take notice and question banks. Although a notarized document still caries a great deal of weight, it is possible to challenge those documents. Chances are good that if properly questioned, many bank notaries will admit they never witnessed anyone sign the documents they notarized. We are aware of one bank that apparently had the notary forge the signature of a bank officer and then notarize her own forged signature!
If you would like to confidentially discuss your case with us, contact attorney Anthony Dietz at For immediate assistance, contact attorney Brian Mahany at or by telephone at (414) 704-6731 (direct).
Mahany & Ertl is a full service law firm. As a general rule, we do not handle foreclosure defense work. Instead, we sue lenders and servicers in state and federal court for their wrongful and illegal conduct including forgery. If you think you have a case that meets our criteria and feel that you have been denied justice, give us a call. Presently we have the largest federal false claims fraud case in the United States against a mortgage lender, HUD’s $2.4 billion case against Allied Home Mortgage. Large or small, we help homeowners pursue fraud cases against lenders.
Mahany & Ertl – Giving Homeowners a Voice. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine & Minneapolis, Minnesota. Services available in many states.