World Trade Center AftermathThe law treats some acts as grave enough that it won't give them legal effect unless a person with knowledge of the facts attests to them. The oath of a witness tends to give the act heft. It suggests you can trust what the witness says.

But what happens when the witness botches the oath? Does the act still count?

In the last week, two courts of appeals made rulings about the effect of statements that fell short of what an oath-governing statute called for. The cases make a striking contrast.

In the first case, a panel held that a false statement under oath in an assignment (of a mortgage) did not void the transfer. The affiant had sworn that he signed the assignment — when in fact someone had scanned an image of his name onto it. He also vowed that he inked it in the presence of the notary — but in truth the notary likely didn't see him. The two-judge majority ruled that those sorts of defects did not matter, in part because they didn't render the affiant guilty of "forgery" under the Texas Penal Code. Reinagel v. Deutsch Bank Nat'l Trust Co., No. 12-50569, slip op. 10 n.22 (5th Cir. July 11, 2013). The third judge disagreed, concluding that forgery did occur but that the debtors waived the point.

The other case dealt with answers to questions about the claims of people who cleaned buildings near the World Trade Center after the Towers fell. Rule 33 of the Federal Rules of Civil Procedure required the claimants to answer the questions under oath, either in the form of an affidavit or "an unsworn declaration [or] statement" per 28 U.S.C. 1746. If they chose the latter way, the statute said, they had to recite that they declared the facts "under penalty of perjury". But the claimants didn't include "under penalty of perjury". They instead said "I am aware that if any of the foregoing responses are willfully false, I am subject to punishment." The court ruled that the statement didn't go far enough. "Inclusion of the language 'under penalty of perjury' is an integral requirement of the statute for the very reason that it impresses upon the declarant the specific punishment to which he or she is subjected for certifying to false statements." Cortez v. City of New York (In re World Trade Center Disaster Site Litig.), No. 2-87-cv, slip op. 8 (2d Cir. July 16, 2013).

The settings differ, of course. The first case involved a bank's efforts to foreclose on an overdue mortgage, and the second concerned an attempt by defendants to get plaintiffs to reveal the factual basis for their claims. Yet both rulings went against the little guy. Hmmm.