Posted by HisHughness on 8/10/05 1:27am
Msg #57979

False affidavit

What is the notary public's responsibility, if any, if an affiant is falsely swearing to an affidavit, and he knows that the allegations are false?

Reply by Bobbi in CT on 8/10/05 6:41am
Msg #57983

YOU know the answer ...

No published good case law in CT.

Basically. The Notary can be pulled in as a co-conspirator to the fraud. Fraud = criminal offense.

Remember your old litigation classes: "BUT FOR" the actions of the Notary in knowingly taking a false statement this fraud could not have been perpetrated.

My guess is that if the Notary gets nailed, it will be settled for monetary damages based on what percentage of the fraud was the Notary's fault and jail time will be eliminated. Hugh, what's your guess? Is there a TX case out there with a definitive answer?

Reply by PAW_Fl on 8/10/05 9:03am
Msg #57996

As Bobbi said, YOU know the answer. In FL, we even have a statute covering this:

FL Statute §117.105 False or fraudulent acknowledgments; penalty.—
A notary public who falsely or fraudulently takes an acknowledgment of an instrument as a notary public or who falsely or fraudulently makes a certificate as a notary public or who falsely takes or receives an acknowledgment of the signature on a written instrument is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Reply by LawrenceOK on 8/10/05 9:05am
Msg #57997

Let him swear all he wants by golly, I aint stamping.

Reply by HisHughness on 8/10/05 10:28am
Msg #58016

Here's the situation:

1. Borrower married May 31, a few days after she applied for a refi by telephone on the home she owned at the time of her marriage. She never informed the lender she had married.

2. Texas is a community property state; both spouses have to sign 4-6 documents in a refi. New husband has some credit problems; they don't want him on the DOT.

3. All the documents are drawn with her as a single person. Included is an affidavit in which she swears there has been no change in her marital status since she applied for the loan.

4. Loan officer, who doesn't want to lose his commission, tells me to have her sign as a femme sole, or single woman.

I managed to get through to the title company. The TC told me to have the husband sign the requisite docs. I'm not sure what I would have done had I not reached the TC. I think what I would have done was have her execute the docs, explain to her what she was swearing, and written a CYA letter when I submitted the executed documents.

Reply by Julie-mi on 8/10/05 1:17pm
Msg #58078

Of course the title wants the husband to sign the proper way as the lien is not perfected if he doesn't sign. They could be liable.

Hugh, I'm rathered amazed that you would be going down this path.

If loan is only in her name and he has to sign spousal docs, his bad credit is mute as the loan is in her name only. #4 would not apply as docs could be redrawn correctly.

Wierd. Ususally a new bride will be the town cryer with her good news.

As a notary and retired attorney, I still cannot figure out why this would even be an issue.

Reply by LawrenceOK on 8/11/05 7:42am
Msg #58247

It may not be illegal, but once I know that everyone is LTAO, it becomes an ethical issue.

Reply by Art_MD on 8/11/05 9:12am
Msg #58262

Community property laws vary tremendously.

In some states, if not all, property acquired before marriage and kept seperate after marriage is NOT community property.

i.e. Woman has $10,000 in a savings account account when she gets married. If she deposits her hubby's paycheck into the account- even one time-, it becomes community property. If it sits and gains interest with no deposits, it is seperate property. A good example also is jewelry - hard to mingle assets so jewelry brought to a marriage is seperate property. If hubby buys it for her, it's community property.

JMHO - not legal advice.

Art