The Trusted Adviser April 2010 | Volume 3 • Number 4



Fraud; Notary Act

Bank of America, NA v Bird, 392 Ill App 3d 621, 911 NE2d 1239, 331 Ill Dec 1009 (5th D 2009).

Facts:Bank of America attempted to foreclose on a mortgage lien on property owned by Ross and Vicki Bird. Ross Bird filed an affirmative defense in answer that claimed that Vicki had forged his signature on the mortgage documents and that a notary public employed by Bank of America had notarized the forged signature. Ross Bird further filed a counterclaim for this fraudulent notarization, alleging that Bank of America was liable for the notary's negligence, for violating the Notary Act, and for fraud.

Bank of America filed a motion for summary judgment on Ross Bird's counterclaim on the grounds that its liability for its employee-notary's misconduct was exclusive province of the Notary Act and that, under the Notary Act, it could not be held liable unless Bird could prove that Bank of America had consented to the misconduct.

The circuit court denied Bank of America's motion for summary judgment, as well as a subsequent motion for the limitation of Ross Bird's demand for his jury trial on the counterclaim. The circuit court, however, certified two questions for appeal.

Holding:Certified Question Answered. Cause remanded. The appellate court was presented with two questions. The first was whether the Notary Act had sole governance over the liability of employers of notary publics. The court ruled on that question that the Notary Act is not the sole governance and does not preclude common law theories of recovery. Specifically, the court noted that employers were only liable under the Notary Act if they were active tortfeasors. This, according to the court, led to the logical conclusion that the Notary Act was not intended as a finite and complete remedial measure against the employers of notaries. The court noted that any negligence or recklessness on the part of the employer is actionably independently of the vicarious liability under the Notary Act.

The court was also presented with the question of whether a litigant under the Notary Act was entitled to a jury trial. The court noted that the Illinois constitution provides jury trials for all those cases where the right existed at the common law prior to the ratification of the state constitution. While the Notary Act was not in existence at that time, the liability for employers arising from the negligence, recklessness, and intentional misconduct of their employees was, at common law, tried before a jury. Because the public policy interests protected by the Notary Act are an extension of those protected in such cases at the common law, the court saw it fit to extend the right to a jury trial to cases brought under the Notary Act.






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[Last update: 3-24-10]