(1) Notaries Public § 1–Disciplinary Proceedings–Time for Instituting.
Disciplinary action taken by the Secretary of State against a notary public was not barred by the fact that the proceeding was instituted more than three years after the notary’s alleged improper act and more than one year after its discovery. Statutes of limitation barring civil actions brought by aggrieved parties are inapplicable to a disciplinary proceeding of a state administrative agency and there is no specific time limitation statute pertaining to the revocation or suspension of a notary’s commission.
(2a , 2b) Notaries Public § 1–Disciplinary Proceedings–Suspension of Commission–Failure to Faithfully Perform Duties–Gross Negligence.
The Secretary of State properly suspended the commission of a notary public under Gov. Code, § 8214.1, subd. (d), for failure to fully and faithfully perform her duties as a notary public in that she had certified the personal appearance and acknowledgment of a man who in fact did not appear before her. The notary’s attempted characterization of her error as “clerical” was unavailing since she had completely failed to read the certificate before signing it. Such failure was gross negligence and consequently a failure to faithfully perform her notarial duty as a matter of law.
[See Cal.Jur.3d, Notaries Public and Commissioners of Deeds, § 5; Am.Jur.2d, Notaries Public, § 13.]
(3) Statutes § 44–Construction–Aids–
Contemporaneous Administrative Construction.
Though the ultimate interpretation of a statute is a judicial function, a court must accord great respect to the views of the expert administrative body charged with enforcing a particular statute.
(4) Notaries Public § 1–Disciplinary Proceedings–Suspension of Commission–Failure to Maintain Records.
The Secretary of State properly imposed a one-month suspension of a notary public’s commission (to run concurrently with another suspension) for failure to maintain a record of transactions as required by former Gov. Code, § 8206. Retention by the title company that employed the notary of photographic copies of the instruments she certified in a file to which she had access was not a substitute for her obligation to personally maintain separate records. Reasonably interpreted, the former statute required a readily accessible, separate log of official transactions by date rather than the mere retention of photographic copies of all instruments certified or proved.
Like everyone else, I’d been reading with amazement the stories about one of those legal problems: the robo-signing scandal that has ensnared all the banks with mortgage servicing subsidiaries, Bank of America included. That’s the scandal in which a tiny handful of employees had signed — or allowed others to forge their signatures — on thousands of affidavits confirming that the banks had the legal right to foreclose on properties they serviced. In truth, they had often never seen the documents proving the bank had that legal right. In some cases, the documents didn’t even exist. As a result of the mounting publicity, many big banks had halted all foreclosures while they reviewed the legality of their affidavits. Its more than just the process of robo-signing its lying. In California in 2008 the California Foreclosure prevention act was passed requiring lenders to contact Borrowers and assess their financial condition before a valid foreclosure could be initiated. Rather some Mers employee signs a declaration that the borrower was contacted. They do not follow the law civil code 2923.5 and 2923.6 and 2924.
Southern California (909)890-9192 in Northern California(925)957-9797
A wrongful foreclosure action typically occurs when the lender starts a non judicial foreclosure action when it simply has no legal cause. This is even more evident now since California passed the Foreclosure prevention act of 2008 SB 1194 codified in Civil code 2923.5 and 2923.6. In 2009 it is this attorneys opinion that 90% of all foreclosures are wrongful in that the lender does not comply (just look at the declaration page on the notice of default). The lenders most notably Indymac, Countrywide, and Wells Fargo have taken a calculated risk. To comply would cost hundreds of millions in staff, paperwork, and workouts that they don’t deem to be in their best interest. The workout is not in there best interest because our tax dollars are guaranteeing the Banks that are To Big to Fail’s debt. If they don’t foreclose and if they work it out the loss is on them. There is no incentive to modify loan for the benefit of the consumer.
Sooooo they proceed to foreclosure without the mandated contacts with the borrower. Oh and yes contact is made by a computer or some outsourcing contact agent based in India. But compliance with 2923.5 is not done. The Borrower is never told that he or she have the right to a meeting within 14 days of the contact. They do not get offers to avoid foreclosure there are typically two offers short sale or a probationary mod that will be declined upon the 90th day.
Wrongful foreclosure actions are also brought when the service providers accept partial payments after initiation of the wrongful foreclosure process, and then continue on with the foreclosure process. These predatory lending strategies, as well as other forms of misleading homeowners, are illegal.