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Notary Question

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R

rml

Guest
In 1996, My father cosigned a construction loan with my wife. The closing took place at my fathers house with a representive of the mortgage company bringing all the documents to be signed with her. With the mortgage company failing, They have failed to provide a end loan for the construction. I have noticed that the copy of the mortgage that is on file with the Reg. of Deeds office has a person that was not present notorizing the mortgage signatures. Is this legal? Can I file with thecourts to have their lein invalidated if its not legal? The rep that was at the closing was a college student and not a notary. Please help me.
 


HomeGuru

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:
In 1996, My father cosigned a construction loan with my wife. The closing took place at my fathers house with a representive of the mortgage company bringing all the documents to be signed with her. With the mortgage company failing, They have failed to provide a end loan for the construction. I have noticed that the copy of the mortgage that is on file with the Reg. of Deeds office has a person that was not present notorizing the mortgage signatures. Is this legal? Can I file with thecourts to have their lein invalidated if its not legal? The rep that was at the closing was a college student and not a notary. Please help me.<HR></BLOCKQUOTE>

If the notary jurat was signed by the indivdual as notary public and this person was not present to witness the signatures as a free act and deed, that is wrong. If the individual represented herself as the notary, with no notary license and registration, that is wrong again. The documents may still be legal as the proper mortgagors signed but their signatures would not be legally notarized.
 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:
If the notary jurat was signed by the indivdual as notary public and this person was not present to witness the signatures as a free act and deed, that is wrong. If the individual represented herself as the notary, with no notary license and registration, that is wrong again. The documents may still be legal as the proper mortgagors signed but their signatures would not be legally notarized. <HR></BLOCKQUOTE>


I have ownership rights on the title of the property but am not on the mortgage. Can I sue to have my title cleared due to the notary not being present. It is my understanding that a mortgage company can only file a lein if the mortgage is properly notorized.
 

HomeGuru

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:

I have ownership rights on the title of the property but am not on the mortgage. Can I sue to have my title cleared due to the notary not being present. It is my understanding that a mortgage company can only file a lein if the mortgage is properly notorized.
<HR></BLOCKQUOTE>

You can sue for fraudulent dealings but title would not be cleared if you prevailed. You have alluded to the possibility of making a claim that the mortgage is voidable and unenforeable due to the notary problem. Even if the mortgagors signatures were not notarized, the mortgage would still be valid and enforceable although the document may not be acceptable for recording. In your case, the execution of the mortgage and the prom note, and the recording of the mortgage document creates the lien automatically. The fraudulent notary does not void the mortgage and lien that is created. Your interest in the property is subordinated to the first mortgage lender. Most likely the mortgage was recorded first, then you aquired interest in the property.

[This message has been edited by HomeGuru (edited July 21, 2000).]
 
R

rml

Guest
Originally posted by HomeGuru:
You can sue for fraudulent dealings but title would not be cleared if you prevailed. You have alluded to the possibility of making a claim that the mortgage is voidable and unenforeable due to the notary problem. Even if the mortgagors signatures were not notarized, the mortgage would still be valid and enforceable although the document may not be acceptable for recording. In your case, the execution of the mortgage and the prom note, and the recording of the mortgage document creates the lien automatically. The fraudulent notary does not void the mortgage and lien that is created. Your interest in the property is subordinated to the first mortgage lender. Most likely the mortgage was recorded first, then you aquired interest in the property.

Actually, I aquired the property prior to the mortgage being recorded. The deed is in my name, not my fathers nor my wifes. She automatically gets marital interest but my father has no ownership interest at all. Should I sue at all angles afterall, All I want is an end loan. The construction loan is at 15 % and was actually due april of 1997. They now say that 218,000 is due, the property appraised at 170,000 and the original note was for 123,265. Remember, they were to refinance at the end of contruction, which they have failed to do.
 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:
Originally posted by HomeGuru:
You can sue for fraudulent dealings but title would not be cleared if you prevailed. You have alluded to the possibility of making a claim that the mortgage is voidable and unenforeable due to the notary problem. Even if the mortgagors signatures were not notarized, the mortgage would still be valid and enforceable although the document may not be acceptable for recording. In your case, the execution of the mortgage and the prom note, and the recording of the mortgage document creates the lien automatically. The fraudulent notary does not void the mortgage and lien that is created. Your interest in the property is subordinated to the first mortgage lender. Most likely the mortgage was recorded first, then you aquired interest in the property.

Actually, I aquired the property prior to the mortgage being recorded. The deed is in my name, not my fathers nor my wifes. She automatically gets marital interest but my father has no ownership interest at all. Should I sue at all angles afterall, All I want is an end loan. The construction loan is at 15 % and was actually due april of 1997. They now say that 218,000 is due, the property appraised at 170,000 and the original note was for 123,265. Remember, they were to refinance at the end of contruction, which they have failed to do. the contract was made in MIchigan.
<HR></BLOCKQUOTE>
 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:
Originally posted by HomeGuru:
You can sue for fraudulent dealings but title would not be cleared if you prevailed. You have alluded to the possibility of making a claim that the mortgage is voidable and unenforeable due to the notary problem. Even if the mortgagors signatures were not notarized, the mortgage would still be valid and enforceable although the document may not be acceptable for recording. In your case, the execution of the mortgage and the prom note, and the recording of the mortgage document creates the lien automatically. The fraudulent notary does not void the mortgage and lien that is created. Your interest in the property is subordinated to the first mortgage lender. Most likely the mortgage was recorded first, then you aquired interest in the property.

Actually, I aquired the property prior to the mortgage being recorded. The deed is in my name, not my fathers nor my wifes. She automatically gets marital interest but my father has no ownership interest at all. Should I sue at all angles afterall, All I want is an end loan. The construction loan is at 15 % and was actually due april of 1997. They now say that 218,000 is due, the property appraised at 170,000 and the original note was for 123,265. Remember, they were to refinance at the end of contruction, which they have failed to do.
<HR></BLOCKQUOTE>
 

HomeGuru

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:
Originally posted by HomeGuru:
You can sue for fraudulent dealings but title would not be cleared if you prevailed. You have alluded to the possibility of making a claim that the mortgage is voidable and unenforeable due to the notary problem. Even if the mortgagors signatures were not notarized, the mortgage would still be valid and enforceable although the document may not be acceptable for recording. In your case, the execution of the mortgage and the prom note, and the recording of the mortgage document creates the lien automatically. The fraudulent notary does not void the mortgage and lien that is created. Your interest in the property is subordinated to the first mortgage lender. Most likely the mortgage was recorded first, then you aquired interest in the property.

Actually, I aquired the property prior to the mortgage being recorded. The deed is in my name, not my fathers nor my wifes. She automatically gets marital interest but my father has no ownership interest at all. Should I sue at all angles afterall, All I want is an end loan. The construction loan is at 15 % and was actually due april of 1997. They now say that 218,000 is due, the property appraised at 170,000 and the original note was for 123,265. Remember, they were to refinance at the end of contruction, which they have failed to do.
<HR></BLOCKQUOTE>


*************************************
Something does not seem right. You aquired the property prior to the mortgage and the deed is in your name. Yet you are not on the mortgage and your father and your wife are on the mortgage but not on title. Lenders do not close mortgage loans to individuals that do not own the property because in this case your father and your wife can not offer the lender the requisite security interest in the property.

The 15% interest is high. The high interest rate, the title/mortgage discrepancy and the fake notary leads me to conclude that this was not a normal conventional transaction. And you have not provided the full details. Under the circumtances, no lender will provide an end loan because the title is messed up due to the mortgage and there is a negative equity in the property.
 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:

*************************************
Something does not seem right. You aquired the property prior to the mortgage and the deed is in your name. Yet you are not on the mortgage and your father and your wife are on the mortgage but not on title. Lenders do not close mortgage loans to individuals that do not own the property because in this case your father and your wife can not offer the lender the requisite security interest in the property.

The 15% interest is high. The high interest rate, the title/mortgage discrepancy and the fake notary leads me to conclude that this was not a normal conventional transaction. And you have not provided the full details. Under the circumtances, no lender will provide an end loan because the title is messed up due to the mortgage and there is a negative equity in the property.
<HR></BLOCKQUOTE>


The mortgage company advised against using my name due to my credit at the time. Is it possible that the mortgage company was trying to bail itself out of financial difficulties by using my father as a co-maker?(his income is double mine) When the papers were being signed at my fathers house, the first ones were for the fees that the mortgage company charged. I am beginning to think that they may have been defruading their investors as well as myself, my wife and my father. The stress levels created by this are starting to affect my marriage and our careers. What would be the best way to stop any forclosure and could I sue them for the distress this is causing?

 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:

*************************************
Something does not seem right. You aquired the property prior to the mortgage and the deed is in your name. Yet you are not on the mortgage and your father and your wife are on the mortgage but not on title. Lenders do not close mortgage loans to individuals that do not own the property because in this case your father and your wife can not offer the lender the requisite security interest in the property.

The 15% interest is high. The high interest rate, the title/mortgage discrepancy and the fake notary leads me to conclude that this was not a normal conventional transaction. And you have not provided the full details. Under the circumtances, no lender will provide an end loan because the title is messed up due to the mortgage and there is a negative equity in the property.
<HR></BLOCKQUOTE>

Is there any releif possible., Any state organizations that I can contact?

 

HomeGuru

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:

The mortgage company advised against using my name due to my credit at the time. Is it possible that the mortgage company was trying to bail itself out of financial difficulties by using my father as a co-maker?(his income is double mine) When the papers were being signed at my fathers house, the first ones were for the fees that the mortgage company charged. I am beginning to think that they may have been defruading their investors as well as myself, my wife and my father. The stress levels created by this are starting to affect my marriage and our careers. What would be the best way to stop any forclosure and could I sue them for the distress this is causing?

<HR></BLOCKQUOTE>

Please provide more info. What is the basis of the foreclosure action; nonpayment of mortgage payments or no refinance of the construction loan upon term expiration? Are there 2 mortgages on the property: the original first and the construction loan from the same mortgage company or are there 2 different loan companies involved? How did the total mortgage balance get so high? What was the total original balance of the construction loan? Sounds like you have been behind on your payments for sometime. You can not sue them for distress if you ( and father and wife) are the ones in default.

If you can indeed make the monthly payments, a loan workout with the lender(s) is in order. If the payments are too high then you should consider giving the property to the lender via a deed-in-lieu of foreclosure. The other option is to file BK. Since your situation is a bit complicated, you need to hire a real estate attorney in your state.
 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:
Please provide more info. What is the basis of the foreclosure action; nonpayment of mortgage payments or no refinance of the construction loan upon term expiration? Are there 2 mortgages on the property: the original first and the construction loan from the same mortgage company or are there 2 different loan companies involved? How did the total mortgage balance get so high? What was the total original balance of the construction loan? Sounds like you have been behind on your payments for sometime. You can not sue them for distress if you ( and father and wife) are the ones in default.

If you can indeed make the monthly payments, a loan workout with the lender(s) is in order. If the payments are too high then you should consider giving the property to the lender via a deed-in-lieu of foreclosure. The other option is to file BK. Since your situation is a bit complicated, you need to hire a real estate attorney in your state.
<HR></BLOCKQUOTE>


The balance got so high because there was no where to send payments. The company "vanished". I found them recently and tried to force them to give us a regular mortgage. ( the construction loan was a balloon note due 4/97 and they never followed through with the refinance.) They went out of business and it took many phone calls to bankruptcy courts to find them. they are the only ones involved and i am having a hard time securing a mortgage to pay them off because of the lein. that brings me back to the original question. The notary was falsified and i need to know how to get the lein off so that I can pay them off with a new mortgage. This is very nervracking and i feel as if we are being victmized.
 

HomeGuru

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by rml:

The balance got so high because there was no where to send payments. The company "vanished". I found them recently and tried to force them to give us a regular mortgage. ( the construction loan was a balloon note due 4/97 and they never followed through with the refinance.) They went out of business and it took many phone calls to bankruptcy courts to find them. they are the only ones involved and i am having a hard time securing a mortgage to pay them off because of the lein. that brings me back to the original question. The notary was falsified and i need to know how to get the lein off so that I can pay them off with a new mortgage. This is very nervracking and i feel as if we are being victmized.
<HR></BLOCKQUOTE>

You know you are in default for nonpayment and for not refinancing the construction loan. Lenders that make interim loans are not required to provide permanent financing, although some do. If there was a written agreement that the lender convert the construction loan to a fixed loan, you know that it is a moot point because of the out of business and BK situation. The lenders BK situation only compounded the problem. I do not believe that the lender vanished as you say. The lender had a definite contact person pursuant to Federal Law and a Federal BK petiton number was assigned. The BK trustee was the one you should have been and should be talking to. In cases where there is no place to send the payments to, an escrow or attorney client trust account should have been established and the mortgage payments sent monthy to escrow/attorney. That way when the lenders' proper contact person is found, you would give escrow directive to disburse the funds. Bottomline: your loan would be current and not in payment default.

Back to my original response: the lien is a mortgage lien and you can not get it off without first paying it off. You are in dreamland if you think: the lien is going to be removed due to the fake notary and you qualify and get a new mortgage on a free and clear title. If you somehow got the lien removed, you would not need a new mortgage. Your reasoning that you can not get a new mortgage because of the existing lien does not hold water. The entire process for a refinance is a new mortgage paying off the existing mortgage lien.
 
R

rml

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:
You know you are in default for nonpayment and for not refinancing the construction loan. Lenders that make interim loans are not required to provide permanent financing, although some do. If there was a written agreement that the lender convert the construction loan to a fixed loan, you know that it is a moot point because of the out of business and BK situation. The lenders BK situation only compounded the problem. I do not believe that the lender vanished as you say. The lender had a definite contact person pursuant to Federal Law and a Federal BK petiton number was assigned. The BK trustee was the one you should have been and should be talking to. In cases where there is no place to send the payments to, an escrow or attorney client trust account should have been established and the mortgage payments sent monthy to escrow/attorney. That way when the lenders' proper contact person is found, you would give escrow directive to disburse the funds. Bottomline: your loan would be current and not in payment default.

Back to my original response: the lien is a mortgage lien and you can not get it off without first paying it off. You are in dreamland if you think: the lien is going to be removed due to the fake notary and you qualify and get a new mortgage on a free and clear title. If you somehow got the lien removed, you would not need a new mortgage. Your reasoning that you can not get a new mortgage because of the existing lien does not hold water. The entire process for a refinance is a new mortgage paying off the existing mortgage lien.
<HR></BLOCKQUOTE>


The reason I am having difficulty is because I am on title but not on the mortgage. Would it be possible if I quit-claim myself off the deed, that I could purchase as a new buyer and my wife and father could use that to pay off the construction loan? I have consulted an attorny to try and sort this out. I am open for any legal ways to get this mess cleaned up. The last company I tried with stated that because I am on title with no loan and my father is on the loan and not the title that title would need clearing prior to us proceding. Any ideas?



[This message has been edited by rml (edited July 23, 2000).]
 

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