There has been a lot of buzz about certain shortcuts that may have been taken with respect to foreclosures of some homes. Most states have a protocol, or procedure, that is supposed to be followed when real property is sold at foreclosure sale. Sometimes these procedures require that certain documents be signed or recorded. When these documents aren’t prepared and signed like they should be, then there can be a temptation to take shortcuts. Some borrowers have claimed that shortcuts were made with respect to their foreclosure documentation, and such claims are a source of much of the “buzz” about foreclosure procedures.
There is a constant need for veracity, or authenticity, of written documents. It’s actually a remarkable process. By using a series of papers and signatures, some borrowers can get a million dollars or more from a lender for the purpose of buying real property. Even though there can be a trend towards going “paperless” in some situations, there’s still a lot of our commercial law that is founded on paper. And the system has been in place for a long time. Whether it’s a contract, a deed, a mortgage, or a written loan agreement, there’s a lot of money that changes hands every day based on papers that have printed terms and signatures.
Unfortunately, the temptation for taking shortcuts can be very real. And sometimes even a downright fraud can look appealing. Though fraud is usually criminal, sometimes the potential rewards can look very appealing, and a person’s internal moral compass may be sufficiently dim that the prospect of “fast cash” may win out. When this happens, victims can be disappointed or financially injured, and when the true facts come to light, the person who hoped to make a lot of “fast cash” can find themself in a whole lot of trouble.
The concept of a “Notary” has been around for a long time. “The notary public, or notary, is an official known in nearly all civilized countries. The office is of ancient origin. In Rome, during the republic, it existed . . . and there are records of the appointment of notaries by the Frankish kings and the Popes as early as the ninth century. They were chiefly employed in drawing up legal documents; as scribes or scriveners they took minutes and made short drafts of writings, either of a public or a private nature. In modern times their more characteristic duty is to attest the genuineness of any deeds or writings, in order to render the same available as evidence of the facts therein contained.” Benjamin F. Rex, The Notaries’ Manual section 1, at 1-2 (J.H. McMillan ed. 6th ed. 1913).
In other words, a modern notary will generally confirm, or witness, the authenticity of a signature. Many documents must be “notarized” before they can be recorded in the recorder’s office. For example, a deed that conveys ownership to real estate must be notarized, or it cannot be recorded. Likewise, a Deed of Trust must be notarized before it can be recorded. The notary takes evidence that the person signing the document is actually the person whose name appears on the document. This process provides an added layer of security that the signature on such document is genuine. However, the system is not foolproof. Notaries have been known to notarize documents after they were signed and without seeing evidence of the identity of the person who signed the document. Therefore, even when documents have been notarized, there is still a need for prudence, for care, and for good common sense. But when the system is working properly, the notarization on a document can be a good indicator that the signature is authentic.
Authentication of documents can involve complex factual and legal issues. Persons with questions concerning authenticity of documents should consult competent legal counsel.