Legal Question in Real Estate Law in Florida
Validity of Mortgage that was fraudulently notarized.
What is the consequence during a mortgage foreclosure action if it is found the notary did not witness the signature. As it is the security instrument for the basis of the proceedings, could it be ruled invalid? The note would be valid, but would it then become an unsecured note? Would the second mortgage then take the first position? I would expect the Title Company who insured the closing with the fraudulent notary action would step in for the lender.
If the notary's actions do not invalidate the security agreement, why have it notarized in the first place?
1 Answer from Attorneys
Re: Validity of Mortgage that was fraudulently notarized.
Unfortunately, theer is no easy answer to this question. The note could be ruled invalid by the judge and the title company could become liable. Some judges, however, rule that the note is still good. I've never seen a judge rule that the note becomes unsecured. You should speak to a good real estate lawyer in your area.
Incidentally, when this happens, we usually report the notary to the governor's office, who usually takes away the person's notary.
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