The following California cases appear to support the proposition that criminal prosecutions for forgery can be properly brought against those (ie. equity stripping, foreclosure rescue operators and others) who trick or deceive financially strapped homeowners into unwittingly signing over interests in their homes through grant and trust deeds (cases available online courtesy of Findlaw.com; free registration may be required):
People v. Martinez, (2008) 161 Cal. App. 4th 754; 74 Cal. Rptr. 3d 409:
- Nevertheless, a forgery conviction can be based on a document with a genuine signature. "[F]orgery is committed when a defendant, by fraud or trickery, causes another to execute a . . . document where the signer is unaware, by reason of such trickery, that he is executing a document of that nature." (People v. Parker (1967) 255 Cal.App.2d 664, 672.)
- Defendant argues that this rule applies only where the "fraud or trickery" consists of an affirmative misrepresentation regarding the nature of the document. He concedes that Michiel may have "signed the . . . trust deed without understanding what she was signing," but he argues that he "did not make any material affirmative misrepresentations to her."
- Preliminarily, even assuming defendant is correct about the law, there was sufficient evidence that he did, in fact, affirmatively misrepresent the nature of the trust deed. Michiel testified that defendant "provided [her] with a number of documents to sign to try and help [her] with [her] financial problems . . . ." (Italics added.)
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- In sum, there was evidence that defendant presented Michiel with a stack of documents to be signed and that he affirmatively misrepresented to her that their purpose was to help her with her financial problems and/or help her file a bankruptcy.
- Separately and alternatively, however, even assuming there was no evidence that defendant affirmatively misrepresented the nature of the trust deed, he could still be found guilty of forgery. People v. Parker, supra, 255 Cal.App.2d 664 involved strikingly similar facts. There, the defendants (Parker and Ex) sold aluminum siding to a number of homeowners. They gave each purchaser a stack of papers, including a trust deed, and they indicated where the purchaser should sign. Occasionally, they affirmatively misrepresented the nature of the trust deed; for example, they told two couples that the papers consisted of a "purchase order," plus several "copies" thereof. (Id. at p. 668 [Edwards and Helland transactions].) Most of the time, however, they simply failed to disclose that the papers included a trust deed. (Id. at pp. 667 [Kinsfather transaction], 668-669 [Buss transaction], 669 [Dick transaction], 669-670 [Longoria transaction], 670 [Kincaid transaction].) The appellate court held that there was sufficient evidence of forgery in connection with each and every sale (see id. at pp. 665-666): "The crime of forgery is committed when a defendant, by fraud or trickery, causes another to execute a deed of trust or other document where the signer is unaware, by reason of such trickery, that he is executing a document of that nature." (Id. at p. 672.) "Clearly, from the evidence in this case appellants are guilty of the forgeries as charged . . . . [Citations.]" (Ibid.)
(For a related post, see California Appeals Court Says Genuine Homeowner Signature On Instruments In Foreclosure Rescue Scheme Not A Bar To Scammer's Forgery Conviction.)
People v. Parker, (1967)
255 Cal.App. 2d 664:
- The crime of forgery is committed when a defendant, by fraud or trickery, causes another to execute a deed of trust or other document where the signer is unaware, by reason of such trickery, that he is executing a document of that nature. In Buck v. Superior Court, supra, (an aluminum siding case) 232 Cal.App.2d 153, it is stated at page 162: "Where a person who has no intention of selling or encumbering his property is induced by some trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is just as much a forgery as it would have been had the signature been forged. [Citations.] ... The crime of forgery is complete when one makes or passes an incorrectly named instrument with intent to defraud, prejudice, or damage, and proof of loss or detriment is immaterial. [Citations.] Whether the instrument forged has independent value is unimportant; the crime is complete when the act is done with the requisite intent." (See also Buck v. Superior Court, supra, 245 Cal.App.2d 431, 436-437 [54 Cal.Rptr. 282]; People v. Carson, 240 Cal.App.2d 477, 480 [49 Cal.Rptr. 653].)
- Clearly, from the evidence in this case appellants are guilty of the forgeries as charged and of the grand theft as charged. (See Buck v. Superior Court, supra; People v. Bresin, 245 Cal.App.2d 232, 237-238 [53 Cal.Rptr. 687]; Buck v. Superior Court, supra, 232 Cal.App.2d 153, 162.) [255 Cal.App.2d 673].
Buck v. Superior Court, (1966) 245 Cal.App.2d 431, 436-437; 54 Cal.Rptr. 282:
- That the crime of forgery is committed when a defendant, by fraud or trickery, causes another to execute a deed of trust or other document, where the signer is unaware, by reason of such trickery, that he is executing a document of that nature, is now settled by Buck v. Superior Court, supra, (1965) 232 Cal.App.2d 153.
People v. Carson, (1966) 240 Cal.App.2d 477, 480; 49 Cal.Rptr. 653:
- The issue is settled in Buck v. Superior Court, supra, 232 Cal.App.2d 153, 161- 162, where the court said: "Where a person who has no intention of selling or encumbering his property is induced by some trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is just as much a forgery as it would have been had the signature been forged. [Citations.] An encumbrance may be the subject of forgery. [Citation.] The crime of forgery is complete when one makes or passes an incorrectly named instrument with intent to defraud, prejudice, or damage, and proof of loss or detriment is immaterial. [Citations.] Whether the instrument forged has independent value is unimportant; the crime is complete when the act is done with the requisite intent."
Buck v. Superior Court, (1965) 232 Cal.App.2d 153:
- Where a person who has no intention of selling or encumbering his property is induced by some trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is just as much a forgery as it would have been had the signature been forged. (Conklin v. Benson, 159 Cal. 785, 791 [116 P. 34, 36 L.R.A. N.S. 537]; Wright v. Rogers, 172 Cal.App.2d 349, 362 [342 P.2d 447].) An encumbrance may be the subject of forgery. (Conklin v. Benson, supra, page 792.) The crime of forgery is complete when one makes or passes an incorrectly named instrument with intent to defraud, prejudice, or damage, and proof of loss or detriment is immaterial. (People v. McAffery, 182 Cal.App.2d 486, 493 [6 Cal.Rptr. 333]; People v. Morgan, 140 Cal.App.2d 796, 800 [296 P.2d 75].) Whether the instrument forged has independent value is unimportant; the crime is complete when the act is done with the requisite intent."
People v. McAffery, (1960) 182 Cal.App.2d 486, 493, 6 Cal.Rptr. 333:
- The crime of forgery (Counts I, II and III) is committed when one makes or passes a false instrument with intent to defraud, the element of loss or detriment being immaterial (People v. Morgan, 140 Cal.App.2d 796, 800; 296 P.2d 75).
Wright v. Rogers, (1959) 172 Cal.App.2d 349, 342 P.2d 447:
- "Where a person who has no intention of selling his property is induced by some trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is a forgery." (People v. Nesseth, 127 Cal.App.2d 712, 718-720, 274 P.2d 479.
People v. Morgan, (1956) 140 Cal.App.2d 796, 800; 296 P.2d 75:
- That crime is committed when one makes or passes a false instrument with intent to defraud. "The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud. (Pen. Code, § 470.) Whether the forged instrument is one of a particular [140 Cal.App.2d 801] name or character or, if genuine, would create legal liability, is immaterial; the test is whether upon its face it will have the effect of defrauding one who acts upon it as genuine." (People v. McKenna, 11 Cal.2d 327, 332 [79 P.2d 1065].) "In the case of a forgery of an instrument it is not necessary that the forged writing create a valid and legally enforcible obligation in order to constitute the making of it a forgery. It is sufficient that it may possibly deceive another and was prepared with intent to deceive and defraud another. Where the writing alleged to have been forged shows on its face that it might be the means of fraud, no averments of extrinsic facts to show how this could be are necessary." (People v. Brown, 101 Cal.App.2d 740, 742 [226 P.2d 647].) Failure to consummate the intended fraud is not of the essence. (People v. Horowitz, 70 Cal.App.2d 675, 688 [161 P.2d 833].)
People v. Nesseth, (1954) 127 Cal.App.2d 712, 718-720; 274 P.2d 479:
- Mr. Justice Fox' statement in People v. Frankfort, 114 Cal.App.2d 680, 700; 251 P.2d 401, is here appropriate: "... The fact that the documents were read would not make it inherently improbable that other, different and additional representations were made by the salesmen.
- "Defendants insist these contracts insulate them from this prosecution because they contain the statement that they constitute the entire agreement between the parties, that the Spa Corporation is not bound by any representations outside the contract, that no salesman is authorized to make any additional or contrary representations, and that the club member has read and understands what he is signing. The simple answer to this argument is that 'The People prosecuting for a crime committed in relation to a contract are not parties to the contract and are not bound by it. They are at liberty in such a prosecution to show the true nature of the transaction.' ... The practical wisdom of the rule is illustrated in this case. Upon at least three occasions prospective purchasers complained to defendant Nudelman that the written agreement did not seem to conform to what they had been told, whereupon he assured each party, in effect, that everything would be taken care of and he need not worry."
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- That the foregoing facts constitute forgery is evident. Section 470 of the Penal Code provides in part as follows: "Every person who, with intent to defraud, ... falsely makes, alters, forges, or counterfeits, any ... writing obligatory, ... contract ... is guilty of forgery."
- That the correct rule is that the procuring of a genuine signature to an instrument by fraudulent representations constitutes forgery is supported by these well reasoned authorities: State v. Shurtliff, 18 Me. 368; Commission v. Foster, 114 Mass. 311 [19 Am.Rep. 353]; Gregory v. State, 26 Ohio St. 510 [20 Am.Rep. 774]; State v. Farrell, 82 Iowa 553 [48 N.W. 940]; Williams v. State, 213 Ala. 1 [104 So. 40]; Williams v. State, 20 Ala.App. 337 [104 So. 38]; Horvath v. National Mortg. Co., 238 Mich. 354 [213 N.W. 202, 56 A.L.R. 578]; Turner v. Nicholson, 115 Okla. 56 [241 P. 750]; Julia Oil & Gas Co. v. Cobb, 128 Okla. 260 [262 P. 650].
- This rule appears to be supported by Conklin v. Benson, 159 Cal. 785, where the court says, at page 791 [116 P. 34, 36 L.R.A.N.S. 537]: "There is no foundation in the facts above set forth for the conclusion that the papers signed by plaintiff were forgeries, and absolutely ineffectual even to serve as a basis for the application of the doctrine of estoppel. The theory of the learned judge of the trial court appears to have been that all of these papers, including the deeds of the Monache lands to the United States, were in effect forgeries and absolutely void. The idea underlying this apparently was that plaintiff was so deceived in the matter of executing these instruments as to bring her within the doctrine of certain cases which substantially hold that where a person who has no intention of selling or encumbering his property is induced by some trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is just as much a forgery as it would have been had the signature been forced. These decisions are not such as to sustain plaintiff's claim in this regard. The distinguishing feature between all such cases and the case at bar is that here plaintiff fully understood and believed that she was signing papers which, when delivered, would convey all her interest in the Monache lands. She intended to execute papers having this effect. The difference between the papers she thought she was signing, according to the evidence, and the papers she actually signed, was merely one of detail and in no degree material, one set of papers having precisely the ultimate effect of the other, the conveyance of her interest in this land. Her real and only complaint upon her own testimony was her failure to personally receive full payment for her land claimed to have been occasioned by reason of the failure of her agent to place the papers in escrow, to be taken up as payments were made, and the delivery thereof to Benson without payment first having been made. ..."
People v. Frankfort, (1952) 114 Cal.App.2d 680, 700; 251 P.2d 401:
- The fact that the documents were read would not make it inherently improbable that other, different and additional representations were made by the salesmen. Defendants insist these contracts insulate them from this prosecution because they contain the statement that they constitute the entire agreement between the parties, that the Spa Corporation is not bound by any representations outside the contract, that no salesman is authorized to make any additional or contrary representations, and that the club member has read and understands what he is signing. The simple answer to this argument is that "The People prosecuting for a crime committed in relation to a contract are not parties to the contract and are not bound by it. They are at liberty in such a prosecution to show the true nature of the transaction." (People v. Chait, 69 Cal.App.2d 503, 519 [159 P.2d 445]; People v. McEntyre, 32 Cal.App.2d Supp. 752, 760 [84 P.2d 560]; People v. Jones, 61 Cal.App.2d 608, 620 [143 P.2d 726]; People v. Pierce, supra, p. 605.) The practical wisdom of the rule is illustrated in this case. Upon at least three occasions prospective purchasers complained to defendant Nudelman that the written agreement did not seem to conform to what they had been told, whereupon he assured each party, in effect, that everything would be taken care of and he need not worry.
People v. Brown, (1951) 101 Cal.App.2d 740, 742; 226 P.2d 647:
- In the case of a forgery of an instrument it is not necessary that the forged writing create a valid and legally enforcible obligation in order to constitute the making of it a forgery. It is sufficient that it may possibly deceive another and was prepared with intent to deceive and defraud another. Where the writing alleged to have been forged shows on its face that it might be the means of fraud, no averments of extrinsic facts to show how this could be are necessary.
People v. McKenna, (1936) 11 Cal.2d 327, 332; 79 P.2d 1065:
- The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud. (Sec. 470, Pen. Code.) Whether the forged instrument is one of a particular name or character or, if genuine, would create legal liability, is immaterial; the test is whether upon its face it will have the effect of defrauding one who acts upon it as genuine. (People v. Gayle, 202 Cal. [11 Cal.2d 333] 159 [259 P. 750]; People v. Thorn, 138 Cal.App. 714 [33 PaCal.2d 5]; People v. Munroe, 100 Cal. 664 [35 P. 326, 38 Am.St.Rep. 323, 24 L.R.A. 33].) A deed which conveys no title may be the subject of forgery. (People v. Baender, 68 Cal.App. 49 [228 P. 536].)
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