Fountain pens and foreclosures
In these days of robo-signers and rocket-dockets, you can easily imagine losing your family home at the stroke of a pen—based on the signature on a perjured affidavit, or the order of a hurried judge—but how often have you heard of a home saved by the stroke of a pen?
A bank folds when its fraud is exposed
Several months ago, I got a call from a couple facing foreclosure. They were convinced, and soon convinced me, that the bank had forged certain key documents in the case. I asked several pointed questions, got the facts I needed, and drafted both an answer to the complaint and an affidavit from my client about the fraud.
The answer, which stated the facts in mostly general terms, I filed right away, and “kept my powder dry” with the affidavit. At first, the bank freaked out. They heaped scorn our defenses, calling them “frivolous” and “without basis.” Judges balked—even in the face of overwhelming evidence that they do it every day—at the thought that a bank could commit foreclosure fraud. Shamefully, one judge even threatened my client with criminal charges for perjury.
Getting ready for trial
But we did not waver. We used our secret to its best effect, and properly prepared, we survived the summary judgment hearing. The court set a trial date. I began the process of assembling our trial evidence and witnesses, including an expert witness to testify about the fraud we’d uncovered. And then the strangest thing happened: the bank gave up.
The bank folds in the face of a trial
As the trial date drew nearer, the bank showed signs that they had no intention of going to trial. They missed several deadlines, including depositions and witness disclosure deadlines. The bank’s lawyer told me she couldn’t get her client to tell her what the bank wanted to do. And then finally, about a ten days before trial, they caved: hot off my fax machine came a Notice of Voluntary Dismissal.
The secret fraud we uncovered
What dark secret had we uncovered that sent the bank running for cover? Simple: we found that they had filed with the court an “original note” that was, in fact, a forgery. My client had gone to the courthouse herself to view the so-called original note, and when she opened the court file, she made a stunning discovery: her signature at the bottom of the page was in blue ink.
Blue ink signatures can be fakes, too
There’s a common misconception that blue-ink signatures can’t be faked. I’ve had at least one judge tell me that she knew the note in the court file was the original because it was signed in blue ink. This isn’t true, of course—blue ink signatures can be faked, too—but this common misconception among judges and defense lawyers alike makes the blue ink signature the holy grail of frauds. Those forgers who know how to fake blue-ink notes know that they will withstand all but the most clever of challengers. In this case, however, they got busted.
Meet the fountain pen collector
My client, a former paralegal, happened to be a fountain pen collector. For signing legal documents, she had a particular pen that she always used: an Oriental Red, Expert II Waterman pen, which she always kept loaded with blue Waterman ink. But when she got to the closing, the notary refused to let her use that blue-ink pen to sign the documents. Black ink only, he told her, it photocopies better.
She was, to put it mildly, pretty upset. That’s exactly why she wanted to use blue ink, so she could tell the photocopies from the originals. But the notary refused to notarize anything but a black-ink signature and she relented.
So imagine her surprise when she saw the bank’s “original note” was in blue ink. Imagine the bank’s surprise when they learned the notary had insisted on black ink—after they went to the trouble of creating a so-called original with a blue-ink signature they must have duplicated from a high-quality scan. Faced with the prospect of proof, at trial, that their “original” was a fake, they opted instead to drop the case. Victory!
When is a blue-ink signature fake?
Now, how do foreclosure plaintiffs fake blue-ink signatures? In the age of high-quality scanners and color laser printers, it’s not difficult to produce realistic looking fakes that will pass inspection almost all the time. (That’s one of the reasons the U.S. government keeps re-designing our paper money—to fight counterfeiting.) I know at least one lawyer who has worked for foreclosure mills in the distant past. He tells me the foreclosure mills easily can, and often do, generate high-quality fakes in many cases. But in this case they got tripped up by someone who knew what she signed and knew what to look for.
There are two lessons to be learned here: first, don’t roll over. If you look carefully, and know what to look for, you just might find something terribly wrong with your own foreclosure case. Second, if you find something worth fighting about, dig in and do it, because when push comes to shove, many of these foreclosure mills will rather surrender than fight a losing battle.