Legal Question in Real Estate Law in Florida
Validy of Mortgage
Can a mortgage be deemed invalid if the notary did not witness the borrower's signature (was not present at the closing). As a foreclosure is based on the mortgage as a security instrument, how could this affect any attempted foreclosure proceedings?
1 Answer from Attorneys
Re: Validy of Mortgage
There may be a viable defense to a foreclosure if the mortage was not properly executed or it was executed under fraudulent means. That said, if you were the borrower, and raise this defense, you would be admitting that you willingly participated in a fraudulant transaction that was perpetrated against the lender, thereby opening yourself up to potentially criminal prosecution.
It would not look good that you willingly went along with the fraudulent execution of the mortgage to acquire the property or refinance, but then raised an objection to the authenticity only after you became unable to make timely payments.
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