Posted by Korey Humphreys on 2/9/05 8:42pm
Msg #19997

ANYONE FROM MASSACHUSETTS?

I was wondering what you input is on the following revised order given by the governor (Executive Order 455 (04-04)).

Section 8, subsection C reads:

(c) A notary public who is not an attorney licensed to practice law in Massachusetts, or who is not directly supervised by an attorney, shall not conduct a real estate closing and shall not act as a real estate closing agent. A notary public who is employed by a lender may notarize a document in conjunction with the closing of his or her employer's real estate loans.

QUESTION: Lets say American Tilte, for instance, calls me to go to a client to conduct a real estate closing. Technicaly speaking, I am hired by the lender (American Title), therefore, would you say it is illegal for me to conduct the real estate closing?

Thank You

Reply by PAW_Fl on 2/9/05 8:54pm
Msg #19998

Yes. And that has been echoed by many notaries in MA. I know of a couple who now continue to do signings, but they are paid by and under the supervision of a licensed attorney in the Commonwealth of Massachusetts.

The last line, "A notary public who is employed by a lender may notarize a document in conjunction with the closing of his or her employer's real estate loans." does not include independent contractors hired by the title company or signing service, nor the lender. IC's are not employees of the lender. Now, if you were an employee, in the strictest definition of the word, by MA statute, then you could notarize the documents in the loans for your employer.

Reply by Ted_MI on 2/9/05 9:25pm
Msg #20009

Paul.

I take it from what the two of you are saying that you view the word "closing" as equivalent to "signing". My perspective has always been that the word closing was usually used in conjunction with a purchase mortgage, where not only were documents signed and notarized but funds also changed hands. Now I appreciate that the phrase may well be used rather loosely in other states, and that in certain other states signing agents are referred to as closing agents.

Yes, by definition ic's (indenpendent contractors) would not be employees of the lender. If they were, as I am sure you are well aware, they wouldn't be independent contractors.

You all might be intersted to know that the governor of Massachusetts, Mitt Romney, is the son of the former (late) governor of Michigan.

Reply by PAW_Fl on 2/9/05 10:16pm
Msg #20019

IIRC, in the EO that Gov. Romney issued, he specifically called it a "closing". Actually addressed the term "witness closing" as well.

From a title perspective, a closing isn't limited to true purchases. Even "sellerless" transactions still have to be "closed". I certainly do not equivocate "closing" to a "signing". IMO, a "signing" is a subset of the "closing" since the "closing" includes the disbursement of funds, which is not accomplished (usually) at a signing. Some states, including Florida, use the term closing very loosely, as well as the term closer. I have found no legal definition in the Florida statutes for either. However, lenders and title companies certainly do have "job descriptions" for them and signing agents don't typically fit those descriptions. But that certainly has not stopped them from calling us "closing agents". (Whenever I see that term on a document that I sign as an NSA, I cross it out and write "signing agent", except when I am actually performing in the position of a closer.)

Reply by PAW_Fl on 2/9/05 11:05pm
Msg #20026

After rereading what I had written, I've decided that what I wrote was written rotten. It wasn't Gov. Romney of MA that specifically addressed "witness signings", but the State Bar of Georgia in their recent UPL advisory.

It is interesting to note, that both MA and GA consider the product of what the NSA did, was a "closing". However the GA courts have more or less defined a closing as a series of events, in which the product of the NSA is simply some of those events. But, "[t]he lawyer must be in control of the closing process from beginning to end. The supervision of the paralegal must be direct and constant."

Reply by Ted_MI on 2/10/05 8:11am
Msg #20048

Paul,

I guess the bottom line is that Massachusetts has become a quasi-Attorney state. I use the word quasi as apparently an nsa can perform "closings" if they are acting under the direction of an attorney or if they are employed by a real estate agent.

I believe that if the phrase "contracted by a title company or a signing service" (those may not be the exact words" does appear in the statute, then massachusetts nsa's have been put on notice that they can't continue to handle signings unless any of those three conditions in the statute have been met.

Reply by PAW_Fl on 2/10/05 8:42am
Msg #20051

That is my interpretation as well. And, apparently, that of the NSA's that I do know who are continuing to do in-home closings **under the direction of a licensed attorney**. I also know of one that has said that he/she continues to do signings for a signing company because that's what he/she is being told to do, since it is "under the direction of the title company's attorney". I don't think that would hold water, but that's just my opinion.

The bottom line for Mass NSA's, is that Mass is now an attorney state, more or less.

Reply by Ted_MI on 2/10/05 3:07pm
Msg #20109

Paul,

I fully agree with you that the perception that an nsa is operating under the direction of the title company's attorney is really stretching it, as there is no real clear nexus between the title company's attorney and the nsa. That is because the signing company is an intermediary. Now if an nsa were working directly with a title company, I suppose at a minimum that argument would present what is called a colorable claim, in other words that such a position might well hold water.

Reply by ItsMe123 on 2/10/05 10:43am
Msg #20065

I know a senator from massachusetts

Sorry, I just had to. Seems like the poor guy ran for president and will be forever branded as "THe Senator From Massachuetts". personally I never got that. Mass seems like an upbeat area. I think I would be embarrassed to be known as "the Senator From Michigan" as we are in the running for the highest tatoo to teeth ratio. Now this is just in good fun

Reply by Ted_MI on 2/10/05 3:15pm
Msg #20111

Re: I know a senator from massachusetts

Hi,

So which Senator from Massachusetts are you referring to? As I recollect they both ran for president (or at least seriously considered it). I presume though you are referring to John Kerry.

So Michigan is known as the "highest tatoo to teeth ratio"? Very curious.

Reply by Bobbi in CT on 2/10/05 5:30pm
Msg #20128

Mass NSAs

The few Mass NSAs that I know are working are doing so through an attorney, mostly solo practitioners / small firms.

Unless the title insurance company or lender puts you on their Payroll with all the bells and whistles, deducts taxes and social security, you are not an "employee".

Not an attorney. Not a legal opinion. Check the IRS website for the definition of employee v. independent contractor.