Question: My father is in his 90’s, and in frail health. He owns a house free and clear of any debt, and my cousin just told me that she now owns it. I am concerned that my cousin forged my dad’s name to the deed. My father does not remember signing any documents, and has always assured me that I would inherit the house. What should I do?
Answer: There are several steps which you must immediately take. You want to get a copy of the deed that transferred the house to your cousin. You can get this from the local Office of the Recorder of Deeds; many jurisdictions have on-line access to such information.
You also want to try to get your father to sign an affidavit that he did not deed the house over to your cousin. This may not be easy, depending on his mental and physical condition, but you want to create a record while he is still alive.
In order to record a deed on land records, the person giving the deed (called the Grantor) must have his or her signature notarized. Locate the notary whose name appears on the deed. You should be able to get information about that notary from the Office of the Secretary in your State.
Contact the notary and ask for proof that the deed was properly notarized. A notary is legally obligated to actually see the person who is signing a document, and keep accurate records reflecting each and every document that was notarized.
You should also discuss the situation with your dad’s medical team to determine if he was mentally and physically competent to sign the deed on the date reflected on that document.
While you can do all of this, it is recommended that you hire an attorney to assist you. It is important to understand that the burden of proof to show that the deed was not signed by your father falls on you. Although you may believe that the deed was forged, it is possible that your father changed his mind and decided to give the house to your cousin. Such actions are quite common in family relationships; a parent gets mad at his child and decides to cut him off from any inheritance.
You should also obtain a title search to determine if your cousin borrowed any money using the house as security. In other words, is there now a mortgage (deed of trust) on land records? If so, this can become a difficult legal issue, since the mortgage lender will claim that the transaction was legal, and that the moneys are owed.
A District of Columbia Court of Appeals case involved a claim of forgery and is helpful in explaining this area of law. Willie Smith allegedly gave his daughter Mary, a power of attorney, and then died one day later. Mary — asserting this power — conveyed to herself property owned by her father, and then borrowed money and gave a mortgage lender a deed of trust secured on that property. When Mary defaulted on her loan, the lender — now Wells Fargo — foreclosed and ended up owning the house.
Mary’s brother Daral filed suit against both Mary and Wells Fargo, asking the court to set aside the foreclosure on the grounds that the power of attorney did not specifically authorize Mary to convey the property to herself, and that the document was a forgery. This is called a “quiet title” suit, where Daral claimed that he should have an interest in the property.
Wells Fargo claimed that it was a bona fide purchaser (BFP) and that the deed of trust was valid. The legal definition of a BFP is a person who, in good faith, and for valuable consideration, has no knowledge or notice of any circumstances that would require further inquiry about the situation.
The court analyzed the case in two ways. If the power of attorney was forged, then the deed and the deed of trust would be void. The law of forgery throughout this country is that a forged document is invalid; in technical terms, it is void from its inception.
Determining whether a document has been forged is not a legal issue; it will be decided on all of the facts. Often, doctors will have to testify whether the person who signed the document was physically and mentally competent on the date the document was signed. Often, hand-writing experts will be called in to testify whether this was a valid signature.
Because the trial court did not allow Daral to present affidavits in support of his forgery claim, the court sent the case back to the lower court.
But the Court did not stop there. It analyzed the question of whether Wells Fargo was a BFP. If the lender knew — or should have known — of the facts involving the power of attorney, then Wells Fargo would not be a BFP, the deed of trust would be void and the foreclosure would be set aside. After a lengthy discussion, the court determined that Wells Fargo was protected as a bona fide purchaser — subject of course to whether in the final analysis the Power of Attorney was not a forged document. (Smith v Wells Fargo, Decided March 25, 2010)
If it is ultimately determined that your cousin forged the deed, there are also criminal charges that the government can bring — should you wish to pursue that route. In general — although different states may have different requirements — the major elements necessary to constitute the offense of forgery are (1) a false writing or alteration of a document and (2) the intent to defraud another person.
Written by Benny L. Kass for www.RealtyTimes.com Copyright © 2014 Realty Times All Rights Reserved.