Thursday, July 8, 2010
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Recorder Not Liable for Accepting Fake Document—C.A.
By KENNETH OFGANG, Staff Writer
The county recorder has no duty to examine a document for signs of fraud, as long as it is notarized and in proper form according to statute, the Third District Court of Appeal ruled yesterday.
The justices affirmed the dismissal of a suit against Amador County and its recorder. The plaintiff, Jewel Jackson, contended that a purported durable power of attorney and two quitclaim deeds executed by her brother should not have been recorded because a reasonable examination would have caused the recorder to realize that the documents did not give the brother the power to convey her interests.
Jackson failed to state a cause of action, Presiding Justice Arthur Scotland wrote, because Government Code Sec. 27201(a) “explicitly states that a county recorder shall not refuse, on the basis of ‘lack of legal sufficiency,’ to record ‘any instrument, paper, or notice that is authorized or required by statute or court order to be recorded.’ ”
Jackson alleged that her brother, Willie Norton, executed the durable power of attorney without her permission, and that the document purported to give him the power to sell two properties she owned in the county. She further alleged that he executed, before the same notary, two grant deeds purporting to convey the properties as her attorney-in-fact, then evicted the tenants, causing her to lose the rental payments and be unable to pay the mortgages.
She also sued her brother, as well as the notary and his surety, who settled.
In demurring, the county contended that Jackson was seeking to “require the county recorder to engage in the unauthorized practice of law.”
Amador Superior Court Judge Don F. Howard sustained the demurrer.
Scotland, writing for the Court of Appeal, said the trial judge was correct, rejecting the plaintiff’s argument that the recorder has a duty under Sec. 27203 to “spot forgeries” by ensuring that a document was signed by the property owner, or by an agent with actual authority. The statute allows the recorder to be held liable for recording a document “willfully or negligently, untruly, or in any manner other than that prescribed by” the Recording Act.
The presiding justice explained that there are five requirements for a document to be recorded—that fees and taxes be paid, that the document be a recordable instrument within the meaning of Sec. 27201, that it contain sufficient information to be indexed, that it be notarized and that it be photographically reproducible.
Because the documents presented by Norton met all five requirements, Scotland said, the recorder had to accept them for recording. Secs. 27201 and 27203, he said, must be reconciled as permitting liability only when the recorder records a document that fails to meet the five requirements.
In an unpublished portion of the opinion, the court concluded that a proposed amendment to the complaint, accusing the recorder of violating Civil Code sections dealing with the qualifications of subscribing witnesses, would not state a cause of action because those sections impose no particular duties on the recorder.
The case is Jackson v. County of Amador, 10 S.O.S. 3803.
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