I was recently asked what someone should do when they suspect that the co-owner of a parcel of property has obtained a loan using a forged power of attorney. I responded by advising that the first thing to do is answer a number of factual questions, the very first of which is whether or not any such fraudulent activity has actually occurred. If the co-owner has executed any documents pertaining to the “jointly” owned property, such document will be a matter of public record and reflected in the documents recorded with the county recorder’s office. For instance, if a loan encumbering the property was fraudulently obtained, evidence of that loan and the fraud itself will be reflected in the security instrument (normally a “deed of trust”) filed with the county recorder. Having done a search and determined that such a document does exist of record, immediate legal action would need to be undertaken to set aside the transaction. Absent very unusual circumstances, any such fraudulent lending transaction is not enforceable and can be expunged from county property records. The person who achieved the fraudulent loan will then be liable to the lender for the damages the lender has incurred (the proceeds of the loan, costs, damages, and probably attorney fees). And of course any fraud is a criminal act and may be the subject of criminal prosecution.
Litherland, Kennedy & Associates have been providing quality estate planning services in the Greater Bay Area since 1975. They are committed to helping those concerned with protecting their families from the devastating legal effects of disability and death. With the aid of public seminars, educational presentations, articles, and radio/television interviews, the law office has championed the use of revocable living trusts as a proven way to protect families from probate, to minimize or eliminate federal estate taxes, and to prevent the Medi-Cal Recovery lien. Roy W. Litherland and Justin M. Kennedy are certified as Legal Specialists in Estate Planning, Trust and Probate Law by the California State Bar Board of Legal Specialization. They are members of the American Academy of Estate Planning Attorneys and National Academy of Elder Law Attorneys.