ONE ON ONE WITH NEIL GARFIELD
COMBO ANALYSIS TITLE AND SECURITIZATION
EDITOR’S NOTE: We have received reports of using radioactive carbon-dating and microscopy proving the age the paper and the age of the signature differ by a matter of years. Dating the other writing on the paper further corroborates the allegation of forgery. Sources have reported that in Atlanta, the procedure has been used on the “original” note produced in court by the pretender lender, proving the document was a forgery even though the borrower conceded the signature was authentic.
There are several ways to reproduce an authentic signature on a new document making it appear to be an original document. And there are several conclusions, each leading to proof of forgery:
- If the document is dated 5 years ago, and the signature, indorsement or assignment execution is dated on paper that is more recent, or the actual signature is more recent than the rest of the document (the paper, the other writing etc.) then the signature was not on the document at or near the time of the document’s creation.
- If it is the borrower’s signature that has been technologically reproduced and introduced as an original it means that the the actual original note is somewhere else. It also raises the possibility that more “originals” are circulating in those fictitious “Trusts” or “pools” purporting to claim the obligation, note or mortgage.
- If it is the signature or paper that is presented as an assignment dated at or near the time of closing with the borrower but either the paper, the signature, the witness signature or the notary signature or stamp does not coincide with the date of the purported document, the same analysis holds: it is a forgery. This also raises the possibility that the “original” note or mortgage has been reproduced more than once and has been sold more than once to more than one “Trust” or “Pool.” This will frequently occur where the originator of the loan misrepresenting itself as a lender is said to have executed an indorsement, delivery and assignment of the note and mortgage at the time of the loan transaction as required by the REMIC statute and the Pooling and Services Agreement.
- If the originator is out of business or bankrupt and the person signing, executed the instrument a few days before an evidentiary hearing they must prove their authority to execute the instrument on behalf of what is now a defunct company. The document that is produced to enable the “Limited Signing Officer” to execute will also show that it was recently produced, contrary to the requirements of the REMIC statute and the requirements of the Pooling and Servicing Agreement. This raises the additional possibilities mentioned above, but more importantly the probability that the transfer instrument is void.
- Even if the originator of the “loan” transaction is still in business and even if the signor was authorized to sign on behalf of the originator (doubtful in most cases) if the alleged transfer documents took place outside of the 90 day window provided by the REMIC statute and the Pooling and Servicing Agreement, the transfer is void without an additional document showing acceptance by the transferee “trust” or “pool” and waiving the requirements of statute and the PSA. [In order to prove this you might need discovery or testimony from the alleged “trustee” that he would accept a non-performing loan or this loan without consent of the investors or that he had consent of the investors in which case he would need to identify the investors, each of whom would be required to authenticate a document that does not exist].
- In order to execute such a waiver, the signature of the investors would be required. Since these events inevitably occur long after the loan is declared in”default” (even if the investor continued to receive payments) it is highly unlikely that an investor would agree to accept a non-performing loan or even a loan which on which payments are being made by a third party but where the borrower has ceased making payments.
- In all such events the original note described a transaction that did not occur and the obligation (that arose when the money was received by borrower or paid to a third party on behalf of the borrower) is not documented. Hence the mortgage, unless it identifies the correct parties and the correct obligation, secures an invalid note. This the obligation is not secured and the note which purports to be secured is evidence of a transaction that never occurred. Thus the mortgage that is incident to the note described in the mortgage is void, in effect a “wild deed.”
- The result is that the obligation still exists, although undocumented and unsecured, owed to an unidentified third party who actually funded the loan. In most cases this is the investor who purchased bogus mortgage backed securities or synthetic derivatives based upon MBS.
- The investor probably has a right to sue the homeowner claiming unjust enrichment and perhaps an equitable lien in favor of the investor. The risk to the investor is choosing that remedy is that they would be opening the door to defenses and counterclaims for fraudulent acts and violations of statutes committed by their agents at the closing. Thus instead of pursuing an unsecured undocumented obligation from a homeowner whose wealth is tied up in a largely depreciated home, the investors have elected to sue the investment banking houses for selling bogus bonds.
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Document Forgery
Information can serve as evidence in a forensic investigation. Paperwork, computer files, notes, and more can help piece together the incident under study. However, it is not always guaranteed that the information is genuine. Identifying a deliberately altered document or identifying the manufacture of a fictitious, but convincingly real, document or file is a challenge for the forensic investigator.
Forensic scientists examine paper manufacturers’ marks and, if necessary, use radiocarbon dating techniques to verify the age of a document. Handwriting and linguistic style analysis can help determine the document’s author. Forgery specialists also make use of ultraviolet lighting and spectography equipment to determine whether a document contains evidence of tampering through erasure or added characters. Inks and dyes are examined through chemistry, and paper fibers are examined microscopically in order to validate or determine their source. When criminals create elaborate forgeries, such as counterfeit currency, sophisticated computerized printers are often used, and examining their encrypted computer files and printer cartridges can help determine the source of the forgery. Evidence from criminal cases of suspected forgery are probed by the Federal Bureau of Investigation’s Questioned Documents Unit; the United States Secret Service investigates counterfeit currency.
On September 8, 2004, CBS News anchor Dan Rather aired a news report questioning the service record of President George Bush in the Texas Air National Guard during the Vietnam War. Several weeks later, when the authenticity of one of the key documents used by CBS News was called into question, Rather publicly apologized. CBS News has since been criticized for failing to follow basic journalistic principles; in essence by failing to properly conduct a forensic investigation.
The CBS debacle is one of literally hundreds of examples of forged documents passing scrutiny as the authentic item. On September 17, 1980, White House press spokesman Jody Powell announced that an unidentified group had sought to sow racial discord by circulating a forged Presidential Review Memorandum on Africa that suggested a racist policy on the part of the United States. The first surfacing of the forgery appears to have been in the San Francisco newspaper, Sun Reporter (September 18, 1980). The Sun Reporter’s political editor, Edith Austin, claims in that issue of the paper to have received the document from an “African official on her recent visit on the continent.” The forgery was replayed by the Soviet news agency TASS on September 18, 1980, and distributed worldwide.
Former United States Ambassador to the United Nations Jeanne Kirkpatrick was the target of more than one Soviet forgery. On February 6, 1983, the pro-Soviet Indian weekly, Link published the text of a supposed speech by U.N. Ambassador Kirkpatrick outlining a plan for the Balkanization of India. The speech was never given, but this forgery was replayed many times by Soviet-controlled propaganda outlets. Its most recent appearance was in the book, Devil and His Dart, published in 1986. The author, Kunhanandan Nair, was the European correspondent of Blitz, another pro-Soviet publication.
On November 5, 1982, the British magazine, New Statesman published a photostat of a letter supposedly from a South African official to Kirkpatrick. He was allegedly sending her a birthday gift. The U.S. Mission to the U.N. wrote the magazine on November 19, branding the letter a forgery. The New Statesman countered this by printing another photostat of the forgery with entirely different spacing between the lines. The magazine claimed that the letter was authentic and that they had received it from a source in the U.S. Department of State. A comparison of this forgery with a letter sent by the South African official to a number of U.S. journalists announcing his appointment as Information Counsellor at the embassy revealed that this letter was the exemplar. The real letter had been typed on a computer. The forgery based on it was typed on a typewriter and contained a number of misspellings.
In a particularly bizarre incident, two leaflets were mailed to African and Asian participants in the 1984 Los Angeles Summer Olympics, which were boycotted by the Soviets. Signed by the Ku Klux Klan, they threatened the lives of the athletes. These leaflets later proved to be Soviet forgeries, written in poor English. When the U.S. government exposed them and pointed out that there is no organization in the United States called simply the Ku Klux Klan (the organizations bear individual names like White Knights of the Ku Klux Klan or Invisible Empire of the Ku Klux Klan), TASS, the Soviet official news agency, responded on July 12, 1984, by claiming that the leaflets were signed “the Invisible Empire, The Knights of the Ku Klux Klan.” TASS attempted unsuccessfully to correct the error on the leaflets made by the KGB. The forgeries were intended to preoccupy African-American and Asian-American athletes with intimidation, and negatively affect their performance.
In the 1980s, before the downfall of the Berlin Wall in 1989 and the Soviet Union in 1991, President Ronald Reagan’s signature appeared on a number of forgeries. The last to appear was in May 1987. It was a supposed memorandum to the Secretaries of State and Defense, and the Director of the CIA. In this forgery, which bore the date March 10, 1983, the President was supposedly ordering the establishment of a U.S. military force called the “Permanent Peace Forces” to intervene in Latin America. This forgery received wide circulation in Latin America and was designed to inflame nationalist and anti-American feelings.
These and other examples serve to illustrate how effective a forgery can be. While a typical forensic investigation would likely not have such political ramifications, a forgery could undermine a legal case or lead the investigation in a wrong direction.
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