Is a signature still a signature?

11 Feb

A recent Minnesota Court of Appeals decision in National City Bank v. Engler confirmed that common sense can still prevail over creative reconstruction of a legal document. 

In the Engler case, a mortgage signed by husband and wife was later argued by her attorneys to not have been an actual signature for purposes of satisfying Minn. Stat. §507.02, which requires the signature of husband and wife on conveyance documents.  Their argument appears to be premised on the fact that she was not a “borrower” on the mortgage, and although she signed the mortgage, she signed solely for the purpose of waiving her homestead rights.

This “creative reconstruction” appears to have been based on the theory that since her signature was accompanied by the language “Signing solely for the purpose of waiving any and all Homestead Rights” it wasn’t actually a signature.  While the District Court allowed such an argument to prevail and held the mortgage void (for not having the signature of both spouses), the Court of Appeals came to the opposite conclusion.

The net result of this case is what many real estate and contract attorneys would already expect – the signature of the wife on the mortgage was in fact a signature, and the mortgage she signed is consequently not void. 

An article with various opinions on this issue, including a quote by the author of this blog entry (Thomsen Nybeck attorney Brad Boyd), appeared in Finance and Commerce February 1, 2010.  View the full article here: http://www.finance-commerce.com/article.cfm/2010/02/02/Court-Mortgage-valid-despite-wifes-failure-to-sign

This blog entry is written by Brad Boyd, Shareholder at Thomsen & Nybeck, P.A. Brad’s practice focuses primarily in Real Estate, Real Estate Brokerage, Business and Corporate law, and Wind Energy Law.  Brad works regularly with real estate buyers, sellers, and investors, real estate brokerages and agents, landowners, and small businesses.  He provides legal advice, guidance, and representation related to risk management in a wide variety of real estate and business law matters

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: