Much has been made lately of the claims that lenders have intentionally or negligently relied upon bogus documents when foreclosing folks out of their homes. Setting aside the ethical side of the issue – if that’s possible – let’s look at the legal side.
What follows is a short summary of the statutory laws that come into play when an interest in land is conveyed in Oregon. After review, ask yourself whether the use of bogus documents – if true – is a mere “technicality”?
- Oregon Recording and Conveyancing Laws. All conveyances of land, or any interest therein, must be made by: (a) A written document; and (b) Signed by a grantor of legal age; or the lawful agent of the grantor; (c) Whose signature is notarized; and (e) The document is recorded in the country where the property is located. (See, ORS 93.010, 93.020.)
- Oregon Notary Laws. A notarization, is a statement by the notary that the person signing a document did so for the purposes stated therein; and if signing in a “representative capacity” (e.g. by a power of attorney), that the representative (called the “attorney-in-fact”) signed with proper authority as the act of the person or entity they represent.
- In witnessing a signature, the notary must determine, either from personal knowledge or from other satisfactory evidence, that the signature is that of the person actually appearing before them.
- A notary has “satisfactory evidence” that the signer is the actual person they purport to be, if the signer: (a) Is personally known to the notary (i.e. familiarity based upon interaction with the signer over a reasonable period of time); (b) Is identified by oath or affirmation of a credible witness personally known to the notary; or (c) Is identified on the basis of certain identification documents (e.g. Current driver license; Identity card from any state; Current U.S. passport or officially recognized passport of a foreign country; Current U.S. military identification card; Current identity card issued by a federally recognized Indian tribe; Or at least one other current document issued by the federal government or a state, county, municipal or other local government containing the person’s photograph, signature and physical description).
- Each notary public is required to keep and maintain one or more chronological journals of their notarial acts. An act of misconduct by a notary in their official capacity is subject to a civil penalty of up to $1,500 per occurrence. In lieu of a civil penalty, the Oregon Secretary of State may deliver a written Official Warning to Cease Official Misconduct to any notary whose actions are deemed “official misconduct.” Misconduct can also constitute a Class B misdemeanor. (See, ORS Chapter 194.)
- Oregon Trust Deed Laws. Before commencing a trust deed foreclosure in Oregon, “…the trust deed and any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are required to be recorded in the mortgage records in the counties in which the property located.” (See, ORS 86.735(1). Emphasis mine.)
These laws have been in place for many years and are substantially the same as those in most other states. As a result, these real estate laws, customs and practices give assurance of reliability to the public, the courts, and our system of tracking the ownership of land. There are no exceptions to these requirements. Without their observance, the system fails.
