Part of the “Robo-signer Fraud” epidemic is notaries are actively participating in the foreclosure fraud (what other sites have called “fraud-closure”):
(1) Not demanding proper identification (ex. social security card, passport, driver’s license) from the person signing the document (ex. the assignment of the Deed of Trust).
(2) Willfully, knowingly altering documents (or forging signatures) with the speecific intent to defraud
(3) Filing false and forged documents with the County Recorder
(4) Failing to keep, or falsifications in the notary journal required to be kept
(5) Failing to administer an oath for a jurat or having the proper witnesses
There are just a few of the things we have seen in loan documents, notices of deed of trust, notice of sale, substitution of trustee documents and other foreclosure-related documents being recorded with the various county recorders.
If there is fradulent activity perpetrated by a notary, they should be held accountable for money damages, including going after their bond ($15,000 in California). In addition, if there was fraud by the notary, and a robosigner committing fraud, the eventual foreclosure sale should be deemed unlawful and the Courts should rescind the trustee sale and cancel the trustee’s deed since this is all “fruit of the poisonous tree.” Under these circumstances, the Court’s should not consider this a “technicality” and they should not require “tender” in order to set the sale aside. These are our legal arguments, although there is never any guarantee the Court or Judge will rule in this manner. However, no good title can derive as a product of fraud, so the argument is worth making in the right case.
At any rate, here is a California Notary Public Handbook: http://www.sos.ca.gov/business/notary/forms/notary-handbook-2009.pdf
In this handbook you will see the interplay of the Government Code, Civil Code and Penal Code in regard to notarial activity. Certain violations by a notary could subject the notary to criminal prosecution (ex. Penal Code Section 470 and 115.5) – defining grounds for fraud or misdemeanor. Other acts of misconduct or neglect may give rise to civil liability (Government Code Section 8214). The Civil Code lays out some of the requirements for a valid notarized document.
Here are a few of the California laws and legal requirements (a basic summary) cited in the California Notary handbook:
(1) A California Notary properly licensed can sign in all California counties (GC 8200)
(2) The California notary cannot have a DIRECT financial interest in the transaction (ex. cannot be the principal in a transaction or a beneficairy for example). CA GOVET CODE SECTION 8224 SAYS:
8224. A notary public who has a direct financial or beneficial interest in a transaction shall not perform any notarial act in connection with such transaction. For purposes of this section, a notary public has a direct financial or beneficial interest in a transaction if the notary public: (a) With respect to a financial transaction, is named, individually, as a principal to the transaction. (b) With respect to real property, is named, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor, or lessee, to the transaction. For purposes of this section, a notary public has no direct financial or beneficial interest in a transaction where the notary public acts in the capacity of an agent, employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial interest in the transaction
(3) A California Notary must maintain and keep “exclusive and direct” control of their notary stamp (ex. do not lend it to a financial institution or robosigner for their use). (GC 8228.1). Such act would be deemed a misdemeanor.
(4) A California Notary must maintain a $15,000 bond with the California Secretary of State (GC 8212-8214)
(5) A California notary must get satisfactory evidence of identity to show the person signing the document at issue is who they claim to be (the Robosigner issue has surfaced in this regard) (California Civil Code Section 1185(a)).
(6) The California notary is required to keep a journal of transaction entries (GC 8228.1 makes it a misdemeanor not to maintain the journal) and respond within 15 days with copies of the journal entry for a specific transaction (Note, that means you can write a GC 8206(c) letter asking for copies of the journal entry to see if there is any misconduct, neglect, fraud, or forgery involved in the transaction).
(7) The Certificate of Acknowledgement must be proper, and made under penalty of perjury certifying the person signing the document identified the identity of the signer and personally appeared before them for signature (if the document is a jurat under GC 8202, the oath must be read and affirmed swearing the documents presented are true). (See California Civil Code Section 1189).
(8) California Penal Code Section 470 makes the following a crime in California:
(a) Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery. (b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery. (c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery. (d) Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft, any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, receipt for money or goods, bill of exchange, promissory note, order, or any assignment of any bond, writing obligatory, or other contract for money or other property, contract, due bill for payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release or discharge of any debt, account, suit, action, demand, or any other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or falsifies the acknowledgment of any notary public, or any notary public who issues an acknowledgment knowing it to be false; or any matter described in subdivision (b).
SPECIAL NOTARY RULES IN CALIFORNIA WHERE DEED OF TRUST OR OTHER ENCUMBRANCE IS INVOLVED - CALIFORNIA GOVERNMENT CODE SECTION 8214For the official misconduct or neglect of a notary public, the notary public and the sureties on the notary public's official bond are liable in a civil action to the persons injured thereby for all the damages sustained. (GC 8214).(a) A notary public who knowingly and willfully with intent to defraud performs any notarial act in relation to a deed of trust on real property consisting of a single-family residence containing not more than four dwelling units, with knowledge that the deed of trust contains any false statements or is forged, in whole or in part, is guilty of a felony. (b) The penalty provided by this section is not an exclusive remedy and does not affect any other relief or remedy provided by law.California Civil Code Section 1189(a)(2) states:(2) A notary public who willfully states as true any material fact that he or she knows to be false shall be subject to a civil penalty not exceeding ten thousand dollars ($10,000). An action to impose a civil penalty under this subdivision may be brought by the Secretary of State in an administrative proceeding or any public prosecutor in superior court, and shall be enforced as a civil judgment. A public prosecutor shall inform the secretary of any civil penalty imposed under this section. INFORMATION ABOUT ARIZONA NOTARY FRAUD CAN BE FOUND HERE.