Posted by PAW_Fl on 2/11/05 5:34pm
Msg #20290

Florida Notaries - Legal description required to be attached

In the long and enduring battle with some title companies about whether or not a legal description as an attachment must be provided with the mortgage, deed, and other documents that state it is attached, the American Society of Notaries (ASN) has prepared a letter stating their position on the subject. The following is a copy of that letter: [formatted as best as it could be for presentation in this forum]

-----------------------------------------------------
January 26, 2005

MEMORANDUM

TO WHOM IT MAY CONCERN

FROM: Kathleen Butler, ASN Executive Director, on Behalf of Paul Williamson
RE: Complete Document Required for Notarization

One of our well-informed and skilled notary members, Paul Williamson (Zephyrhills, FL), has asked me to provide our Society’s interpretation of Florida statutes regarding notarization of an incomplete document.

Mr. Williamson’s concern arises from repeated demands that he perform a notarial act over mortgage documents that are missing referenced attachments. Most commonly, at the time of notarization the mortgage is missing the Rider or Attachment that provides the legal description of the property. Mr. Williamson has correctly been refusing to proceed with notarization in such cases.

Florida Statute 117.107 (10) provides clear, unambiguous direction to Florida notaries on the handling of mortgages that are missing referenced attachments, as follows:

[Quote]
A notary public may not notarize a signature on a document if the document is incomplete or blank. However, an endorsement or assignment in blank of a negotiable or nonnegotiable note and the assignment in blank of any instrument given as security for such note is not deemed incomplete.*
[/Quote]

*NOTE: The second sentence narrowly addresses conditions affecting sale of the mortgage and note on the secondary market and has no bearing on this discussion of incomplete/complete documents.

Despite the clarity of this statutory guidance, Florida notaries are routinely urged to proceed with notarizations that are illegal due to the absence of referenced attachments to the underlying document. This activity contradicts not only Florida law, but also contradicts the clear intent of such mortgage document language as recently shared with us by Mr. Williamson:

Typically the mortgage states:

[Quote]
The "Property" means the real estate, including the leasehold (if any), located at <property address> and having the legal description attached to and made a part of this Mortgage.
[/Quote]

Clearly, the preceding mortgage language makes the Rider or Attachment containing the legal description of the property a fully integrated element of the mortgage. Its absence would therefore constitute an incomplete document. Under Florida law, neither Mr. Williamson nor any other Florida notary may proceed with notarization absent the referenced Rider or Attachment.

I’ll add that Mr. Williamson’s strict adherence to notary law protects him from potential criminal charges and ensures his transactions will stand up to legal scrutiny. Too many transactions are subsequently undone due to sloppy or illegal execution. Mr. Williamson does not wish this to occur, governs himself accordingly, and ASN applauds him for it.

Thank you for your consideration of these facts.

Kathleen Butler
Executive Director
American Society of Notaries

:me

Reply by Ted_MI on 2/11/05 7:04pm
Msg #20306

Paul,

Kudos to you for pursuing this issue. You directed your posts to "Florida Notaries". Would not your comments also apply to non-Florida notaries who were involved in a signing of property located in Florida?

Reply by PAW_Fl on 2/11/05 8:33pm
Msg #20320

Re: Florida Notaries - Legal description required to be atta

>>> Would not your comments also apply to non-Florida notaries who were involved in a signing of property located in Florida? <<<

The quick answer would be sure. But, since this is a notary law question and not a property recording issue, the answer is a definite maybe. I don't know if other states have an "incomplete document" phrasing in their notary laws, nor how those other states that do, would interpret what constitutes and "incomplete" document. Title companies will always tell you that the appropriate legal description will be attached to the mortgage prior to recording, which it certainly must be. However, there is no guarantee that it would be attached to the affidavit that references it, nor no indication that the correct legal description would be attached.

I know it is not within our jurisdiction to ascertain whether or not the attached legal description is valid, but the borrowers more often than not certainly can. Whenever I do a signing, I always present the legal description, or point it out if it is written within the mortgage and ask if it is correct. If they don't know that's okay, again since it's not "our" responsibility to validate the contents, only that they are there. But, as a signing agent, I feel I have a responsibility to properly address the process and guide the borrowers through the documents. There's a lot at stake for the signers.

Reply by Victoria/FL on 2/11/05 7:23pm
Msg #20308

Thank you, Paul...

I had this situation last month with a loan. I've printed out this posting to keep as a reference.

Reply by Melody on 2/11/05 9:40pm
Msg #20331

Hurray for you, Paul! n/m

Reply by Becca/FL on 2/11/05 10:09pm
Msg #20333

Paul, I'm really glad to hear this news. Just last night, I had the "Exhibit A" discussion with a newer Florida SS. I'm getting so tired of it! The SS owner stated, "I have been doing loan signings for four years and have never heard such a thing." She also said the legal description was the property address.

The SS owner said she faxed me the HUD, when she had fax page 1 of the HUD, additional closing instructions and some other doc, I can't remember now. It's scarry to know that people are starting Signing Services and don't even know what a HUD1 is, what an "Exhibit A" is, or how to properly do Notarizations.

On a much brighter note, Chase has started sending the proper amount of Exhibit A's with their packages AND they require the borrower to sign the Ex A. I sure do hope that other lenders will soon follow suit.

Reply by BrendaTX on 2/12/05 3:47pm
Msg #20397

Obviously, this is a FL thread, not a TX one...but I have to jump in for a minute. IMHO, the following comment by Becca is the only way the Exhibit A situation airtight and non-problematic.

"On a much brighter note, Chase has started sending the proper amount of Exhibit A's with their packages AND they require the borrower to sign the Ex A. I sure do hope that other lenders will soon follow suit."

I am glad that Paul's looked into this problem of Ex A. I agree with him that they should be included and I hope this problem is resolved for all states.

But, the reality is that nothing is "attached" to anything in our packages. I try not to think about these things, if you see what I mean...it makes me crazy.

Reply by PAW_Fl on 2/12/05 9:13pm
Msg #20428

Re: Florida Notaries - Legal description required to be atta

Brenda said, "I agree with him that they should be included and I hope this problem is resolved for all states." To which I must reply.

The wording, Brenda, needs to be much, much stronger than that. I submit that this problem MUST be resolved as the attachments, MUST BE INCLUDED BY LAW (at lease for us in FL). I'm glad to see that my former employer (Chase) has finally started to provide these as SOP and hopefully their operating procedures reflects the necessary closing instructions to the title companies that "Exhibit A - Legal Description" must be included in each and every package prior to the borrowers signatures being applied to the deed or mortgage.

As for being "attached", that doesn't necessarily mean to be physically coupled by staples. One of the definitions for "attached" is, "To affix or append; add: attached several riders to the document." So, the mere presence of the attachment with the main document is sufficient to satisfy the meaning of "attached hereto and made a part hereof" (or something similar). However, I have received some mortgages (and other multipage documents) that are stapled together.