As banks are using the method of robo-signers to sign foreclosure affidavits in judicial foreclosure states like Florida to foreclosed on homes with a judge's nod in courts, less has been focused on whether robo-signing are legal in non-judicial foreclosure states. Michael Patrick Rooney, a lawyer in San Francisco, California, examines legal rights in California of robo-signing foreclosure affidavits and how robo-signing is illegal in the state of California. Mr. Rooney wrote:
Robo Signers are illegal in California because good title cannot be based on fraud, robo signed non judicial foreclosure sales are void as a matter of law, the documents are not able to be recorded in California if they are not notarized, which we know was often not done properly, and finally, because they robo signed forgeries ARE intended for judicial proceedings, including evictions and bankruptcy relief from stay motions.
Mr. Rooney cites a law case of a fraudulent transaction California law is settled. The Court in Trout v. Trout, (1934), 220 Cal. 652 at 656 where good title can't be based on fraud :
“Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. Consequently, the fact that defendant Archer acted in good faith in dealing with persons who apparently held legal title, is not in itself sufficient basis for relief.” (Emphasis added, internal citations omitted).
In California Civil Code 2934a, requires that the beneficiary execute and notarize and record a substitution for a valid substitution of trustee to take effect. If the Assignment of Deed of Trust, the substitution of trustee, or the Notice of Default is robo-signed, the sale is void.
And here is an interesting nugget by Mr. Rooney on notarization of false signature:
In California, the reason these documents are notarized in the first place is because otherwise they will not be accepted by the County recorder. Moreover, a notary who helps commit real estate fraud is liable for $25,000 per offense.
Once the document is recorded, however, it is entitled to a "presumption of validity", which is what spurned the falsification trend in the first place. Civil Code section 2924.
Therefore, the notarization of a false signature not only constitutes fraud, but is every bit intended as part of a larger conspiracy to commit fraud on the court.
Finally, Mr. Rooney addresses that the necessary purpose of foreclosure affidavits are intended for court eviction proceedings. Mr. Rooney says "once these documents make it into court, the bank officers and lawyers become guilty of felonies." According to California Penal Code section 118:
(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.
The major banks should worry about how much they will have to pay in settlements of foreclosure fraud in the state of California because the incoming California Attorney General Kamala Harris may seek to sue banks on foreclosures.
And here is an interesting nugget by Mr. Rooney on notarization of false signature:
In California, the reason these documents are notarized in the first place is because otherwise they will not be accepted by the County recorder. Moreover, a notary who helps commit real estate fraud is liable for $25,000 per offense.
Once the document is recorded, however, it is entitled to a "presumption of validity", which is what spurned the falsification trend in the first place. Civil Code section 2924.
Therefore, the notarization of a false signature not only constitutes fraud, but is every bit intended as part of a larger conspiracy to commit fraud on the court.
Finally, Mr. Rooney addresses that the necessary purpose of foreclosure affidavits are intended for court eviction proceedings. Mr. Rooney says "once these documents make it into court, the bank officers and lawyers become guilty of felonies." According to California Penal Code section 118:
(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.
The major banks should worry about how much they will have to pay in settlements of foreclosure fraud in the state of California because the incoming California Attorney General Kamala Harris may seek to sue banks on foreclosures.
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