Fraudulent Notarization Voids Mortgage – Dismissal Reversed
The Alabama Court of Civil Appeals reversed a Circuit Court’s dismissal of a fraudulent notarization claim. The complaint alleging that a mortgage was void because it was fraudulently notarized. In the case of Lowery v. Wells Fargo Home Mortgage, Lowery claimed that certain pages of her mortgage loan documents had been notarized outside of her presence and by a person with whom she had never made contact.
Under Alabama Code § 35-4-20, a conveyance of land, such as a mortgage, must be written or printed, must have the signature of the party at the bottom, and the signature must be attested to by at least one witness. Alabama Code § 35-2-24 provides that the attestation may be done by a notary public. Proper notarization requires that the signing party actually appear before the notary public to either sign the document or to attest that the signature is actually their signature. Failure to do so may constitute a fraudulent notarization.
The Court of Civil Appeals held that because the mortgage was not properly notarized, it was void under the statues and Alabama. The Court of Civil Appeals reversed the trial court’s dismissal of the case, and remanded the case back to the Circuit Court with instructions for the case to proceed.
In addition to the holding regarding fraudulent notarization claims, the Court of Appeals reaffirmed the principle that, although a fraudulent notarization is subject to a two year statute of limitations, under the discovery rule, the two year period does not start until the fraud is discovered.
Etta Lowery v. Wells Fargo Home Mortgage, Appeals Court # 2131060 – Lowery v. Well Fargo