By David A. Wolfe, Esq. and Michael I. Rich, Esq.
Over the past few years, deficiencies in lenders’ and servicers’ processes, procedures, controls, and staffing resulted in numerous inaccurate affidavits relating to its execution and documentation. Consequently, foreclosure and debt collection practices have come under rigorous scrutiny by federal and state governmental authorities, courts and the media. Courts are continuing their focus on the supporting affidavits and are more willing to entertain debtor claims of faulty documentation. To avoid the delays and other issues this may cause, it is important to understand the elements and operation of the process.
An affidavit is a type of voluntary verified or formal sworn statement of fact signed under penalty of perjury by an individual and witnessed, as to the authenticity of the signer’s (affiant’s) signature, by a taker of oaths, usually a notary public. Any person having the intellectual capacity to take an oath or make an affirmation and who has knowledge of the facts that are in dispute may make an affidavit, but the affiant must possess the level of knowledge of the information that they are attesting to in the affidavit. An individual familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be clear, so when executing an affidavit, the affiant is verifying that they have authority to sign the affidavit and their personal knowledge of the facts.
An oath is essential to an affidavit. The statement of the affiant does not become an affidavit unless the proper official administers the oath. A person who takes an oath or affirmation in connection with an official proceeding may be prosecuted for perjury should he or she fail to be truthful. The jurat is typically performed on affidavits, depositions and interrogatories. For a jurat, the signer must appear in person at the time of notarization to sign the document and to speak aloud an oath or affirmation promising that the statements in the document are true.
It is important to remember that the notary is screening the signer for identity, volition and awareness, but is not verifying the truth, form or contents of an affidavit that he or she notarizes.
A widely endorsed notary’s best practice is to record details of the notarization in a notary log. Keeping such a chronological journal is a requirement of law in some jurisdictions, and some states even require document signers to leave a signature and a thumbprint in the notary’s journal. Each state has certain requirements, and it is important to know these rules as documents that are valid in one jurisdiction may not be properly executed in another.
If you have any questions on this matter, please contact Mr. David Wolfe, Esq. or Mr. Michael Rich, Esq. of Weltman, Weinberg & Reis Co., LPA. David is an associate in the Consumer Collections Group of the Michigan office. He can be reached at 248.362.6142 and dwolfe@weltman.com. Mike is a managing attorney in the Real Estate Default Group in the Detroit office for Thoroughbred Title Agency, Inc., an affiliate of WWR. He can be reached at 248.786.3137 and mrich@weltman.com.
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