A Criminal Case Study of Fraudulent Electronic Notarization ...

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1. A Criminal Case Study of Fraudulent Electronic Notarization: Lessons Learned NNA California eNotarization Forum Los Angeles, California October 19, 2005

3. The San Diego City Attorney’s Office Civil and Criminal Divisions Over 130 Attorneys Civil Advisory and Litigation Criminal Misdemeanor Prosecution General Trial Unit Specialized Units

4. Consumer and Environmental Protection Unit Five Attorneys Civil Cases – Unlawful Business Practices Criminal Cases – Consumer Fraud, Theft, Unlicensed Business Practices Something New Every Day!

5. First Notary Complaint Discovered Forgery of Signature and Seal Secretary of State Response Referred to Local Police Department Couldn’t Help – No Monetary Loss Referred to San Diego City Attorney Investigation Opened

6. First Notary Allegations Former Notary for the Company Debt Collection Services Forged Signature and Seal On 50-100 Affidavits (Verification of Account) All Sent to Attorney’s Office in Kansas

7. The Affidavit in Question

8. Initial Investigation Confirmed Kansas Received Documents Dated over 30 Days after Notary Resigned Signature Scanned or Forged? Seal Scanned or Copied? Is there a victim? Kansas Attorney? The Kansas Courts? The Notary? Another Notary Came Forward

9. Second Notary Allegations Notarized 50 Affidavits at a Time 300 Affidavits Needed Notarization Company wanted to Scan Signature and Seal Legal or Not? Must Protect Seal, Signature, and Log Refused to Notarize any more Affidavits Seal and Signature might be Scanned

10. Additional Investigation Company had an Electronic Journal Backlog of Affidavits Told Notary2 would Password Protect her Signature and seal Attempted to Develop In-house System Claimed Affidavits were a Test – not meant to be sent to Kansas

11. Charges Considered Forgery (signature) – PC 470 Forged Public Seal – PC 472 False Personation – PC 529(2) Coercion of a Notary – GC 8225

12. Forgery Penal Code section 470 (signature) Penal Code section 472 (seal) Easy to Prove the Forgery Specific Intent to Defraud – a lot Tougher!

13. False Personation Penal Code section 529(2) Assumed Another’s Character Verified or Published a Written Instrument Intended it be Recorded or Used as True

14. Coercion of a Notary Government Code section 8225 Solicited, Coerced, or Influenced a Notary To Perform an Improper Notarial Act Knowing the Act is Improper What was the Improper Act?

15. Improper Acts Scanning the signature? Electronic Signatures - Civil Code 1633.11(a) Digital Signatures – Government Code 16.5 Scanning the seal? Government Code section 8207 and 8207.3 Under exclusive control of notary Allows for an electronic seal

16. Improper Acts Asking Notary to Notarize 300 Affidavits signed 3 months ago? Using Electronic or Traditional Journal? Government Code section 8206 Direct and Exclusive Control of Notary

17. Outcome Corporation Plead No Contest to Five Misdemeanor Violations (unlicensed practice) $10,000 fine $10,000 for NNA Brochure and Ad Forensic Analysis of Notary Practices In-house Training Reduced to Infractions when Completed

18. Lessons Learned Growing Need for Electronic Notarization Secretary of State Jurisdiction is Limited Businesses want to do the Right Thing Laws and Regulations Unclear Inadequate Guidelines for Businesses and Notaries

19. A Criminal Case Study of Fraudulent Electronic Notarization: Lessons Learned Joan N. McNamara Deputy City Attorney San Diego City Attorney’s Office 1200 Third Avenue, Suite 700 San Diego, California 92101 (619) 533-5699 (phone) 533-5504 (fax) [email protected]

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