DerryNews.com, Derry, New Hampshire

November 7, 2013

It's important to fill in the blanks

About the Law
Andrew Myers

---- — Is a mortgage valid if the documents signed are not properly notarized?

Crazy facts sometimes make law.

Shawn and Annemarie refinanced property, but had someone else sign for them at the closing. This isn’t usually a problem. They simply needed what the law recognizes as a valid power of attorney. This authorizes someone else to sign for them at the actual passing of papers under a power of attorney.

So, Shawn and Annemarie signed a power of attorney. It was notarized using “standard form” notary language recommended by order of the executive branch in Massachusetts in the early 1990s.

The “standard” notary language included wording that Shawn and Annemarie “signed it voluntarily for its stated purpose.” Who pays attention to these things, anyhow? The phrase “voluntarily for its stated purpose” comes directly from the recommended notary language.

Another issue cropped up because the standard notary statement indicates that the notary public had “satisfactory evidence of identification” of the signer. A blank is left for the notary to indicate that the identification was made by way of a driver’s license or other ID. The problem here was that the blank was never filled in by the notary.

The actual statute in Massachusetts and most other states requires that notary publics confirm that anyone signing a legal document do so as their “free act and deed.” The language in the standard form said only that it was signed voluntarily.

In Weiss v. Wells Fargo Bank, decided Oct. 1, 2013, the U.S. Bankruptcy Appellate Panel in Boston held that the language referring to voluntary signing did not comply with the requirement that notarized documents be the signer’s “free act and deed.” Taken together with the line left blank regarding the form of identification used to verify the signer’s identity, the notarization was found to be materially and patently defective, and the mortgage was invalidated.

The Bankruptcy Appellate Panel, which reviews Bankruptcy Court decisions, included one of New Hampshire’s two bankruptcy judges, overturning a decision of the U.S. Bankruptcy Court for the District of Massachusetts.

Unique facts underlie the decision, which may have limited, if any, precedent. The power of attorney was signed in the morning in Massachusetts. The refinanced mortgage was signed the same day under the power of attorney in or around Pittsburg, Pa.

Nonetheless, the decision calls into question the use of standard forms, whether they come from the Internet, the stationery store or even the governor’s office. In the law, statutes are the trump card. Also, those who fail to fill in all of the lines do so at their own peril.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.