can be a pretty lax thing.
Lax, but Not Lax Enough for Lenders
The requirements have apparently been too heavy for foreclosing institutions, though, as stories of people signing 8,000 affidavits per month are coming to light or signing affidavits far from the notaryor on different days than the notary signed. Signing an affidavit without reading it, where you state inthe affidavit that you have read it, is perjury. A notary notarizing a blank document is, in every jurisdiction of which I know, grounds for the dismissal of the notary. It may even be criminal. Theforeclosing institutions have rendered the legal apparatus, designed to protect borrowers from illegalforeclosures, a mockery. And this is probably because they do not have the documents they need toforeclose legally and do not even know where to find them.Right now the foreclosing institutions linked to these activities are under investigation by various stateattorneys general and are possibly liable to the people they have foreclosed upon for hundreds of millions of dollars, perhaps billions. Some banks have suspended foreclosures pending variousoutcomes.
How Would The New Bill Affect These Foreclosures?
Because the bill requires “recognition” of a “lawful” notarization, it is apparently designed to be a“procedural” requirement. That may not sound like much to non-lawyers, but it is actually a big dealand one of the most suspicious aspects of the legislation. See, “procedural” laws are normally appliedretroactively. The bill then may pave the way to whitewashing all these illegal affidavits retroactively,stealing the last rights of the banks' newly homeless victims.
It Would Probably Whitewash the Fraudulent Affidavits
It would appear that all these affidavits were not “lawful” notarizations at the time they were made, butwhat would happen if a state court in Delaware or North Dakota (to mention just two jurisdictions thatgo out of their ways to appease corporate interests) ruled that they were, in fact, lawful? Or what wouldhappen if any state passed legislation that purported to authorize, retroactively, these affidavits? Theseanswers are not clear to me, and I would suggest that they cannot be made sufficiently clear to justifythe law. There is a high risk that the law would be applied retroactively to render these fraudulentaffidavits effective.
And to be real for a minute, isn't that exactly what the purpose of the legislation clearly was?
clear is that under the legislation, if a state actually did that, it could export its policy toevery other state in the Union, regardless of whether those states wanted it.
The Bill Expands the Scope of Federal Government Too Much
Of course it is obvious, isn't it, that the bill was designed to take the power to regulate notarization outof the hands of the states, where it has long resided, and “federalize” the process. The bill, accepted byevery Republican Senator (and every Democratic one, too) is an affront to federalism and represents asignificant expansion of federal power. It is a gross intrusion into the function of the state courts. Whilesome would argue that the Supreme Court would strike the law down as an invasion of the powersreserved to (and traditionally residing with) the states under the 10
amendment, I do not share thisconfidence. Possibly it would be, but at a minimum this would require a year of litigation, during whichtime countless people would probably lose their homes.
But What about the Requirement of Interstate Commerce?
Of course there's the requirement that there be “interstate commerce,” doesn't that count for something