It happens from time to time; a borrower in a foreclosure action claims that the signature on the note or mortgage or other document is not genuine – that it is a forgery. Is this a valid defense?
If it really is a forgery, yes, it certainly is a defense. (Whether this invokes protection from a title company is a different and more elusive subject.) We all know that sometimes a husband brings a girlfriend to a closing pretending to be the wife, and versa, just one of more than a few schemes perpetrated by the shady.
But in the case where this defense of forgery is just one of a host of manufactured responses to the foreclosure, the protesting borrower will need much more proof than just the denial of a legitimate signature.
Mindful that notes should be and are typically acknowledged (signature taken before a notary public) and mortgages must be acknowledged in order to be recorded, the prevailing rule helps. A certificate of acknowledgment attached to an instrument (like a mortgage) raises a presumption of due execution, rebutted only after being weighed against evidence showing that the instrument was not duly executed. [Osbourne v. Zornberg, 16 A.D.2d 643, 792 N.Y.S.2d 183 (2d Dept. 2005], citing a host of cases for the proposition.
A key point in employing the rule is a further maxim that the unsupported testimony of an interested witness is insufficient to rebut the presumption of due execution of the document. So in the case where the borrower made up the story, the borrower’s affidavit alone fails and the mortgage (or note) survives the attack.
Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.