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Posted by Linda/nj on 4/23/05 8:50am
Msg #33498

Closing instructions/Failure of the closing agent to comply.

Goodmorning, if anyone can please give me a quick answer if they do or do not sign this. It is on a Wamu closing instruction pages and it has a spot for notary to sign. Below it, it says Failure of the closing aent to comply with Washington mutual's written closing instructions may result in Wamu incurring a penalty for the late loan deliveries. The undersigned agent hereby agrees to reimburse Wamu for any penalties it may incur as a result of closing agent's errors and/or nor-compliance with these instructions. Now I have done plenty of these, has anyone sent this back unsigned? I know my docs are fine but its just that I feel I just DON'T want to sign this! Thanks, Linda.

Reply by Amanda/VA on 4/23/05 8:57am
Msg #33501

I don't think that you are suppose to sign this page. If its the form I'm thinking of, I never sign it.

Reply by Linda/nj on 4/23/05 9:09am
Msg #33503

I called the signing Co. They said to sign it, your E&o insurance covers that! like I said, i know my docs are perfect, but I take exception signing something like that. please excuse my Cap/non caps. in need of a need key pad! Linda

Reply by Bobbi in CT on 4/23/05 9:56am
Msg #33513

Not a "closing agent"

I never sign this.

1. I am not the "closing agent" in Connecticut (i.e., disburse the funds, record documents and issue title insurance policy).
2. My E&O does NOT cover everything within the text of that document. So if the "closing agent" disbursed the funds later than anticipated and the borrowers refused to pay the additional interest and late fees due to the original lender, who refused to release their mortgage until paid, and the new lender was PO'd because they are not in a first lien position - would your Notary Public E&O cover this? It wasn't within your function as a NSA, but you signed agreeing to pay any lose or fees ... and the title company didn't have to sign it because you already did.
3. I will sign NSA checklists, anything where I state I saw original identification as an NSA, but I never sign anything agreeing to cover loses where I have no control over the entire transaction.

My Connecticut personal opinion. May be different in your state. On Monday, for curiosity sake, call your E&O company and ask if they would cover this type of situation. Also ask if they cover your courier services (i.e., taking loan package to drop box, get in car accident on the way, signed loan documents destroyed, and borrowers have to re-sign at a higher interest rate because of delay and increase in rates).

Reply by Linda/NJ on 4/23/05 10:02am
Msg #33516

Re: Not a "closing agent"

Bobbi, I agree, completely. I think maybe this person I was talking to at the SS just did not care to hear what I was saying to her. I told her i am not the closing agent. I am sure I have come across this before and have not signed it, but since this is the first time I am working for this Company, I was reading everything 3 and 4 times to see if there was anything different from the norm, and this just stood out when I was asking Q's on their proceedures and giving a shipping #

Reply by PAW_Fl on 4/23/05 10:33am
Msg #33523

Re: Closing instructions/Failure of the closing agent to com

>>> They said to sign it, your E&o insurance covers that! <<<

Don't you believe that for one minute.

Errors and Omissions insurance provides protection in the event that you commit a negligent act or make an error or omission ***while acting as a notary*** if the error or omission causes a loss to a customer.

Everything else you do, as a signing agent, you are NOT protected under your notary E&O. You are personally liable for your mistakes. You may want to consider general business insurance for additional coverage. Speak with an insurance representative.

Errors and Omissions insurance protects you up to the amount of the policy. Most policies also provide you with legal defense at no additional cost.

Your notary bond does not protect you; it protects your customers. When a bonding company pays for a loss on a notary bond it has the legal right to recover the loss from you.

Errors and Omissions insurance protects you and typically there is no reimbursement to the insurance company from you.

Even simple oversights, such as a failure to affix your notary seal or to properly identify the customer could subject you to be personally liable for losses.

Reply by Stephen_VA on 4/23/05 10:52am
Msg #33525

Re: Closing instructions/Failure of the closing agent to com

** Errors and Omissions insurance protects you up to the amount of the policy. Most policies also provide you with legal defense at no additional cost. **

Does your insurance have a "duty to defend" clause? If not, in my opinion, it effectively nullifies the insurance. They do not cover things that are willful. If a company actually decided to sue me over an error, you can bet that they would say that I did it intentionally because it strengthens their case. At which point, my insurance company could bow out. A "duty to defend" clause would mean that would have to be proved in court that it was willful before they could claim that they have no responsibility to cover it.

I suggest everyone look this up further, the above is about all the information that I have on the matter. However, my father recently gave me a lesson in this type of insurance after recounting a personal protracted court case of his.

Reply by PAW_Fl on 4/23/05 2:11pm
Msg #33540

Re: Closing instructions/Failure of the closing agent to com

>>> Does your insurance have a "duty to defend" clause? If not, in my opinion, it effectively nullifies the insurance. <<<

Well, maybe not! It is well-settled in Pennsylvania that an insurer has a duty to defend its insured whenever there is a claim stated in a complaint that "potentially may become one which is within the scope of the policy." <Cadwallader v. New Amsterdam Casualty Co.> Thus, a duty to defend exists "[a]s long as the complaint comprehends an injury which may be within the scope of the policy." <United Services Auto. Assn. v. Elitzky> So, the "duty to defend" may exist, even though not explicitly stated within the policy, as there has been precedence set to so indicate.

The preceding is a paraphrased excerpt from an article that first appeared in The Legal Intelligencer, November 16, 2000, "Determining an Insurer's Duty to Defend as Between Covered and Non-Covered Claims: The Dichotomy Between Pennsylvania and New Jersey Law"
By: Neil S. Witkes, Esquire

Reply by Ted_MI on 4/23/05 9:31am
Msg #33506

Linda,

Is this relative to a HELOC? I have done loads of WaMu HELOC's and have never seen anything with the language you have indicated. Admittedly, there is a notary checklist which they wish signed at the bottom, which seems reasonable to me. But it sure doesn't contain the onerous language you have set forth.

Reply by PA Notary on 4/23/05 9:43am
Msg #33508

I never sign those. The SS/TC would be the closing agent. I am the Notary. Typically, the SS/TC rep. signs it. (at least all the ones I've seen)

Reply by Linda/nj on 4/23/05 9:50am
Msg #33510

I am not going to sign it. It nothing on all the 6 pages that has anything to do with funding and nothing in the 6 pages has to be notorized, so I am not signing it. Geeze, it's like the ones you get that say to sign the HUD, because the lender likes it when the person signing the HUD is in front of the borrowers, yeah right, I'm putting my name on the HUD like I prepared it, sure!

Reply by Linda/NJ on 4/23/05 9:57am
Msg #33515

PA Notary, When i spoke with the SS I told her that. She says, "just sign", I guess I'll say just "NO". Linda

Reply by Linda/NJ on 4/23/05 9:46am
Msg #33509

It's a refi. on page 5 of 1 thru 6 of closing instructions. I have seen similar with other lenders and did not sign. BUT, this is the first signing i am doing for this company, and have done many Washington Mutuals, but this is the first time I have seen this in the closing instructions for ME to sign. linda

Reply by Linda/NJ on 4/23/05 10:33am
Msg #33522

Thank you all for your response. I guess just having a brain cloud today! I should know better. I AM NOT THE CLOSING AGENT. Regardless of what the SS is telling me. I wouldn't jump off a bridge, etc. Thanks again for all help and all the knowledge. THANKS! Linda