Posted by SoCalcloser on 2/23/08 3:56pm
Msg #236809

POA issue

I did a signing for a small lender where the signer has a POA. The POA is signed by all parties but the notary only notarized the appointed person and not the ill person who appointed him to sign. This is a first for me and have read before that you should look at the POA before notarizing, it wasnt until I looked closely after the signing, I noticed the problem. I told the lender that the POA is not valid and I dont feel comfortable returning the docs. He was very upset (which shocked me, I thought he would be on my side) and said their legal approved it and its just a matter of getting the same notary to notarize the ill person later. He also said I shouldn't be concerned with the POA, Im only there to witness his signature and not to approve POAs, that its their concern. I find it amazing that their underwriter approved it. I see red flags everywhere. Any thoughts about this?

Reply by Bob_Chicago on 2/23/08 4:05pm
Msg #236811

As you said...."I shouldn't be concerned with the POA..

Im only there to witness his signature and not to approve POAs, that its their concern".

Reply by SoCalcloser on 2/23/08 4:13pm
Msg #236813

Re: As you said...."I shouldn't be concerned with the POA..

It was the lender who said that. If you are saying that I shouldnt be concerned then why does my notary handbook say that I should look at the POA before I notarize. I'm trying to avoid going to court if this is a shady deal.

Reply by ZeeCA on 2/23/08 4:29pm
Msg #236816

Re: As you said...."I shouldn't be concerned with the POA..

would you quote the section that you are stating? I looked it up in my handbook, and it really does not mesh with what you are saying as to what I have read... thx

Reply by Linda_H/FL on 2/23/08 5:11pm
Msg #236822

Is it the XYZ Notary Law Primer?

I as because it is their contention that the notary or NSA should check to be sure the POA grants the proper authority for the transaction.

Reply by janCA on 2/23/08 8:31pm
Msg #236871

What notary handbook are you looking in????

Notarize don't analyze. I think what you are referring to is when the handbook states you should look at the original POA when you are certifying a copy to make sure they are one and the same. Unless you have the authority (you are an attorney) I would not base my decision on whether or not to send those docs back based on something XYZ has stated. We all know they are not the end all be all of the notary world.

Reply by DianeCipa on 2/25/08 8:35am
Msg #237004

agree

I agree that the notary, while correct in pointing out the flaw, should proceed with the notarization and allow the parties to make corrections to the document prior to recording.

I am always thankful when another professional in the transaction catches an error. You did a fine job of watching their back.

Reply by Demore on 2/23/08 4:45pm
Msg #236820

I would make sure that this matter be document in my Journal.

Reply by SoCalcloser on 2/23/08 5:25pm
Msg #236827

Ok I did some research and I dont think Im going to send the notarized documents. It says that if I feel the POA is not valid then I shouldn't go through with the signing. See the fifth paragraph down for exceptions to signing loan documents with POAs.....

Signing By Power Of Attorney


By David S. Thun
[e-mail address]
February 14, 2002

Most lenders do not like to allow power of attorney usage in a loan signing and will reschedule the appointment and redraw documents. However, if you arrive at the signing and the borrower informs you that they intend to sign for the spouse with a Power of Attorney this can be a very sticky situation. First, contact your client and the lender. If you cannot reach anyone (as in an after hours signing) there are a couple of options:
Option 1
Because you are not sure what should be done cancel the appointment. Safe decision or is it? Let's look at it another way:


Option 2
Continue with the appointment and send the ORIGINAL power of attorney document back with the docs to be reviewed and approved.
Here are a couple of reasons why we suggest Option 2:




Your primary objective is to complete the loan signing. If the lender does not allow power of attorney the docs would have to be redrawn anyway and you would have to make another appointment


If the lender does allow the power of attorney you just saved a delay in the closing and the additional expense of re-drawing documents.


If you decide not to sign and the lender does accept the power of attorney and you created the delay you could be liable for expenses incurred because it was your decision not to proceed.



Exceptions:



The spouse will be back before the docs expire (if they are not date sensitive) best to reschedule until you can contact the lender the next business day.

The Power of Attorney document presented is not the original you must have the original for the lender to review and for your notary journal only the original can be used as ID to notarize in the attorney-in-fact capacity.

The Power of Attorney is a special or specific format and does not specifically address signing loan documents or this loan transaction. If the POA presented is not a General POA than it must specifically call out loans, mortgages etc.

It is a General Power of Attorney form that has been signed and notarized but not witnessed General POA's normally require at least two witnesses. (Check with your state Notary laws for specifics on power of attorney) Look this up now and make a note for future reference you never know when a POA will pop-up!

You are even the least bit suspicious as to the validity of the document (POA) or the signing spouse seems to be acting suspiciously in any way!

NOTE: check your state notary law to see what type of acknowledgement is required when signing POA usually it is the same as the individual but check to make sure!

Initials using Power of Attorney
Our research indicates that when someone is using a POA to sign loan documents that they would initial as follows: Sam P. Davis by John D. Smith as his attorney-in-fact initials = SPD by JDS.
Remember, this is meant to be a guideline as to the best way to handle tricky situations in the field when you cannot reach the client or lender. You handle the situation the way you feel is best for you and your business.

Reply by Sylvia_FL on 2/23/08 6:18pm
Msg #236831

Go by CA notary law, not what the NNA says!

Normally the company has verified the POA. It is not up to us to decide if it is valid or not. (Are you an attorney that can determine the validity of a POA???)

By withholding the docs, you will cause the loan not to go through and could be sued by both the borrower and the company.
Can you afford to lose your home or any of your assets?

Reply by SoCalcloser on 2/23/08 6:27pm
Msg #236833

Re: Go by CA notary law, not what the NNA says!

Im trying to find something in the notary law in my state that can help me and Im at a lost. I dont know what to do and dont want to turn in my notarization when there could be a problem. With all the news about fraudulent transactions, I cant imagine how I can be sued when I need more research to be done on this, on a saturday, this is difficult. I would hope the court would appreciate a notary further researching possible fraud. I will call the Sec. of State on Monday to find out more info.

Reply by Sylvia_FL on 2/23/08 6:45pm
Msg #236844

Re: Go by CA notary law, not what the NNA says!

Unless you are an attorney you can not determine that a POA is invalid. So, you would tell a court that you did not return the documents because you determined that the POA could be invalid????

We are not even required to examine the POA.

As I said, I hope you have enough assets to cover you in a lawsuit.

Reply by Demore on 2/23/08 7:01pm
Msg #236850

Re: Go by CA notary law, not what the NNA says!


It seems that you and I have something in common which is likely to make things look complicated.

This is word from my English teacher "Simplify! Simplify!"

I am confused with you making decisions on this matter. Please, please, do not hold docs. . . communicate with the people who contract you. Is it simple?

Reply by Sylvia_FL on 2/23/08 7:13pm
Msg #236854

Re: Go by CA notary law, not what the NNA says!

"communicate with the people who contract you"

He/she did and was told the POA was acceptable.

Reply by Vince/KS on 2/23/08 6:33pm
Msg #236836

Re: Go by CA notary law, not what the NNA says!

In addition to what Sylvia said -

"If you decide not to sign and the lender does accept the power of attorney and you created the delay you could be liable for expenses incurred because it was your decision not to proceed."

This section from your post SoCal. You also said the lender approved it. The TC may require the borrower or lender to send it overnight to them if they have not seen it - have you talked with them?

Reply by SoCalcloser on 2/23/08 6:43pm
Msg #236843

Re: Go by CA notary law, not what the NNA says!

They have approved it, that is the big red flag. why would they approve a poa that is not valid. I dont want to be a part of this shady deal. Its a smalltime lender, could be a shady one. I used to process loans for years and bigtime lenders always had to approve the poa first and usually they are meticulous about this sort of stuff.

Reply by Sylvia_FL on 2/23/08 6:49pm
Msg #236845

Re: Go by CA notary law, not what the NNA says!

"why would they approve a poa that is not valid"

They would not approve an invalid POA! Their LEGAL dept has examined it and their attorneys have determined it is valid!
Where did you get your law degree?

Reply by CaliNotary on 2/23/08 8:26pm
Msg #236870

Why did you even bother asking?

It seems like everyone is giving you the same answer, yet you seem to be ignoring it and hellbent on taking your E&O insurance on a test drive instead.

Did you properly notarize the person who appeared in front of you? That's where your involvement begins and ends, ALL you're there to do is properly ID the person that is signing.

Don't be an idiot, just return the docs.

Reply by Demore on 2/23/08 8:36pm
Msg #236873

Re: Why did you even bother asking?

You are one of a kind. You go straight to the point and give an wake up call. Well done!!!!!!Hua! Hua! Nail on some people need to be shaking and shaking to wake up because still in the infant stage. Ha!

Reply by Sylvia_FL on 2/23/08 8:43pm
Msg #236874

Re: Why did you even bother asking?

"taking your E&O insurance on a test drive instead."

I don't believe that this is something Notary E&O Insurance will cover.

Reply by JanetK_CA on 2/23/08 10:06pm
Msg #236882

Re: Go by CA notary law, not what the NNA says!

Perhaps it would be helpful to remind yourself that you are not the processor of this file. You've brought it to the attention of those who should care and I don't think - as a notary/SA -- that you can do more than that. I'm no attorney (or loan processor), but is it at all possible, just for esxample, that this was the equivalent of a split signing and that the principal's signature is notarized on another copy? (I don't even know if that's legal - but again, it is not our decision to make.)

Reply by Pat/IL on 2/23/08 6:42pm
Msg #236841

I can't imagine a POA being any good without the principle's signature notarized. Around here, the title company would need to approve the POA as well as the lender. If there is a title company involved, I would give them a call.

If you do not notarize capacity in CA, this is likely their problem and not yours. But then, I could be wrong. Best not to put too much stock in the opinion from some anonymous person in Illinois.

Reply by Maureen_nh on 2/23/08 7:01pm
Msg #236849

I hate to sound dense, but I just had a strange POA myself and would really like to know.
Why would the POA be signed by more than one person--the person granting the POA?
I think I am missing something here.

Reply by Demore on 2/23/08 7:07pm
Msg #236853

WOW! I liked your comments. I have the same feelings that something is missing in this story. What is that? Ummmmmm!

I was thinking because I use to know more than four languages: Japanese, Korean, Portuguese, and English. Don't worry! Am an America--my father was in the Military and my latest husband (dead for three years) was a nuclear engineer.
Now you know why sometimes I don't get. Ha! Have a good one!

Reply by JK/TX on 2/23/08 7:31pm
Msg #236861

Some POA docs are signed by principal and agent. Agent signs by acknowleging and accepting the appointment. They could also add other parties that may have an interest in the transactions to acknowledge the POA appointment. IMHO

Reply by Maureen_nh on 2/23/08 8:03pm
Msg #236866

Thanks for the clarification. I have had these as separate docs in the past.
I hardly ever see a POA as I don't need to.
Now I know I can't notarize a jurat that contains something I KNOW is an absolute falsehood but I am not responsible for knowing everything.

Reply by LKT/CA on 2/23/08 7:29pm
Msg #236860

<<<<The POA is signed by all parties but the notary only notarized the appointed person and not the ill person who appointed him to sign.>>>>

Are you saying the agent's (attorney-in-fact) signature was notarized but the principle's (person granting poa) signature was not notarized?

<<<<......said their legal approved it and its just a matter of getting the same notary to notarize the ill person later......>>>>

Notarizing a doc doesn't legalize it, just means a disinterested third party watched the signer sign the doc and the signer was identified. In this case, the first Notary watched the agent sign and took his/her driver's license, may or may not have seen the principle sign but didn't notarize their signature. If the principle signed, they signed. The signature line for the principle isn't blank, is it?

<<<<He also said I shouldn't be concerned with the POA, Im only there to witness his signature and not to approve POAs, that its their concern.>>>>

That's true, Notaries are not responsible for the truthfulness of a document and it is not illegal for a signature not to be notarized. If the TC's legal department accepts the signature on the POA not to be witnessed by a 3rd party witness and is willing to have the principle's signature witnessed later (probably as a formality) then nothing seems out of order.

Doesn't seem like fraud to me. Does the principle's signature on the POA match his/her driver's license or ID? When they signed the loan docs did all the signatures ultimately match?

Reply by Linda_H/FL on 2/23/08 7:35pm
Msg #236862

Lisa...principal didn't sign the loan docs..the AIF did...principal probably wasn't even there..

Reply by LKT/CA on 2/23/08 7:38pm
Msg #236863

Oops

...so focused on the principle's sig not notarized

My bad !!

Reply by MichiganAl on 2/23/08 8:32pm
Msg #236872

You've gotten your answer

You did your job. You told them your concerns. But if there's nothing in your handbook (forget what any primer or XYZ slackie says) that gives you the power to decide the validity of a POA, then it's not your call. And any solution that involves hijacking docs is just a flat out dangerous decision.

Reply by nsa/fl on 2/23/08 9:41pm
Msg #236879

Re: POA issue- What's the issue, if the person appointing

someone to act as their "attorney in fact," didn't sign the document, then you don't have a POA, period that's it nothing more to discuss. I've never seen a POA where the appointed "attorney in fact" ever even signed the document. Only the person issuing the POA has been the signer. But I guess things could be different in CA., but without the issuer's signature I don't see how this could even be construed as a POA.

Reply by Sylvia_FL on 2/23/08 9:54pm
Msg #236880

Re: POA issue- What's the issue, if the person appointing

The original post stated that ALL parties had signed the POA, but the signature of the person appointing the POA wasn't notarized.
So the issuers signature is there, just not notarized.

Reply by nsa/fl on 2/23/08 9:56pm
Msg #236881

Re: POA issue-misunderstood the first post, sorry. n/m

Reply by SoCalcloser on 2/24/08 1:01pm
Msg #236925

Re: POA issue-misunderstood the first post, sorry.

I appreciate all of your input, some I thought were a bit negative, name calling was unnecessary and very immature, but this is the notaryrotary board, what else is new!! I just know now to not to read and ignore those posters comments from now on. I've been doing this for years and rarely do I get a POA signing, so I thought there might be others out there who might run into the same problem and wanted to share my story and hear from others on this issue. With all the mortgage fraud going around, I try to be as cautious and keep my eyes open. I returned the docs back to the lender yesterday without my signatures, my intention wasnt to hijack the docs, I just simply needed to know whether or not I was doing the right thing by notarizing them. I know Im not an attorney or lender and maybe its not my place to approve POAs, but I decided not to go through with this potentially crooked transaction, better to lose out on the $150 for peace of mind.

What I left out in my original post was that the signatures for the other 2 parties even look similar to the AIF using the same pen, this looked strange to me. Also, the same notary who originally notarized the AIF signature on the POA 2 weeks ago, met with him the same day I did to give him an updated acknowledgement since the one on POA was outdated, this was strange too. Why wouldn't that same notary notarize his docs then, he probably had my same concerns. By knowing the poa wasnt valid, I didnt want to have part of another possible mortgage fraud statistic since this could be a crooked lender, since this was a non traditional hard money lender which are not regulated like traditional lenders are. I guess I'll never know the true story, and this could be a valid transaction, and maybe I shouldnt care whether or not the POA was valid, but since it didnt feel right to me, I didnt go through with it. Im calling the secretary of state office on Monday to hear their thoughts on this, and as soon as I mentioned this to the owner of the mortgage co. to give me until Monday to to get some clarification, interesting enough, all the phone calls and emails I received yesterday from him stopped.

Reply by jba/fl on 2/24/08 1:35pm
Msg #236927

Re: POA issue-

You caused quite a controversy here, and now you are saying, "What I left out in my original post was ..."

One of the things that irritates me more is a down and out lie/liar. In effect, by leaving vital information out of your post you have become just that, experienced or not. Your lecture about those who commented on your plight has fallen on my deaf ears. You have no room to comment when you didn't even post the whole truth.

Snake-y.

Reply by kathy/ca on 2/24/08 2:01pm
Msg #236929

I dont see where the "new" info changes anything that was

said in the "replies". I would think everyone that replied would stand by what they said and that is that the notaries job is to ID and notarize. The stuff about the signatures looking the same and using the same pen, whats that all about?

Reply by Sylvia_FL on 2/24/08 2:05pm
Msg #236930

Re: I dont see where the "new" info changes anything that was

Maybe he/she is a handwriting expert??? LOL

Reply by Maureen_nh on 2/24/08 4:24pm
Msg #236936

Re: POA issue-misunderstood the first post, sorry.

You might just have stumbled on a situation where the person who was granting the POA was incapable/ or not. If so, and you don't know, there could have been an end run around waiting for guardianship or conservatorship. The worst scenario would be either an attempt at Medicade fraud or outright theft of property.
I am going to assume you invalidated your notarizations as you said you didn't notice the discrepancy until after the signing.
I do hope you made copies of the suspect document to fax to the SS if they are even interested. They might refer you to another division.
You were there, you saw the people involved and spoke with the lender.
You could end up being a hero or a darned fool, but that's chance we all take when we make decisions.

Reply by Shane_OH on 2/25/08 8:43am
Msg #237006

** Hopefully you didn't set yourself up **

By overstepping your bounds on this transaction.

You may find yourself on the defense end of litigation if the borrower loses this loan, has to take a higher rate because of a rate lock expiration, or anything that costs him/her money/fees....because you took it upon yourself to decide of a POA was legal.

You E&O will not cover this, hopefully you have already purchases Professional Liability Insurance.

Next time, act within the scope of your job.

Reply by Art_PA on 2/24/08 7:42pm
Msg #236950

You are correct to be concerned. If the POA was not notarized either the notary was careless, or the singer was not present and the notary deliberately did not notarize the signature of the party who was not present.

Would you rather be sued for being careful which is extremely unlikely, or for the value of the property which was fraudulently transferred or the cash taken from the transaction?

If the borrower did not have valid ID you would not proceed, why is it any different when the signer before you clearly does not have the authority to sign on the face of the POA. If it is not notarized it is not valid, at least in my state.