Posted by NCsignguy on 6/20/08 11:25am
Msg #252256
Shady Deal
Did a closing the other day on an “investment” property. There were 3 signers on the deed and 2 borrowers. The 2 borrowers were both in their 80’s and Mrs. Borrower seemed t have dementia. The 3rd signer was their daughter who lived in the investment property; she was not on the note. She was also married to an attorney who claims to have processed 50,000 loans. They both lived in the house and NC is a martial rights state. He had some waiver that took him off the property so he didn’t need to sign. Mr. Attorney the son in law 1st word to me was “you are not an attorney all you need to do is witness signatures”. The 2 borrowers we not reading the paper work nor did they have on their glasses and the son in law attorney was just pointing and telling them to sign. When I would tell them what document they were signing he would say “your job is to just notarize signatures”. An investment property has no RTC, I contacted the title company and told them of my concerns, and I was told if the title company had any concerns the manager would call me. I also emailed my concerns to them so I would have a record. What is the general opinion, if you don’t feel the borrower is of a sound mind and judgment, is that a call we are suppose to make? Why wouldn’t the Attorney son in law just do the mortgage himself unless he has something to hide, or judgments against him?
| Reply by Teresa/FL on 6/20/08 11:27am
Msg #252258
If one of the borrowers seemed to have dementia, why did you notarize her signature?
| Reply by Dennis_IN on 6/20/08 11:29am
Msg #252259
I would have refused myself. Especialy if the borrowers did not seem to "be there". It does sound fishy. JMHO
| Reply by John McDermott on 6/20/08 11:35am
Msg #252261
Mrs borrower was able to signer her name, but would always need to be reminded what date to sign. also i didnt think she could see the documents she kept say where about 2-3 times when she was told to sign. but she was able to sign.
| Reply by MikeC/NY on 6/20/08 12:34pm
Msg #252275
Just because she was physically able to sign doesn't mean she had the proper capacity. They're supposed to be acknowledging that they understand what they are signing and that they are signing without coercion - doesn't sound like either of those things was true.
I'm with everyone else on this; you should have just walked away. Did you feel intimidated by the attorney? Some of these guys can rant and rave and bully people into submission, but in this case you had the law solidly behind you. It's too late for damage control. Chances are this won't come back to bite you later on, but it could, and then you'll have to deal with a potentially ugly situation. For now, all you can do is consider it a lesson learned.
| Reply by Roger_OH on 6/20/08 11:37am
Msg #252262
A basic tenet of notarization in every state is that the notary must determine whether the signer is aware of what they are signing, and that they are signing freely and without coercion. I would have advised the attorney of this small fact, and asked each signer whether they were aware of and OK with the document contents. Did any of the docs require
administering an oath?
Should any of the signing parties (or their relatives) later contest the property deal, saying they weren't aware of or pressured into what they were signing, you may have some issues since your notarization states they were aware to your satisfaction.
| Reply by Carolyn Bodley on 6/20/08 11:51am
Msg #252267
*Should any of the signing parties (or their relatives) later contest the property deal, saying they weren't aware of or pressured into what they were signing, you may have some issues since your notarization states they were aware to your satisfaction.*
And documenting it in a phone call and e-mail isn't going to cover someone's behind after the fact.
| Reply by Philip Johnson on 6/20/08 12:13pm
Msg #252269
I believe you broke the first notary rule.
By stating: "Mrs. Borrower seemed t have dementia."
That should have been enough to thank them for calling you and wish them a good day on your way out. I hope this doesn't come back to haunt you especially since you have put your name on a web forum stating the above.
| Reply by desktopfull on 6/20/08 12:20pm
Msg #252273
You actually notarized for these people when you knew they
didn't understand what they were signing and suspected one of dementia? WOW! Good Luck, IMHO you're going to need it in the future. You should have just walked instead of letting the Attorney/Son-In-Law bully you into submission.
| Reply by Hugh Nations Signing Agents of Austin on 6/20/08 12:28pm
Msg #252274
Texas law does not address the question of the notary's responsibility in ascertaining capacity, which seems to be a glaring oversight. That is not the first nor will it be the last such oversight by the Legislature of my native state, and it certainly is not the greatest.
Despite that, I take the position that if, in my layman's view, a person is not of apparently sound mind >>at the time of notarization<< they cannot either acknowledge their signature nor meaningfully swear to the truth of something. Consequently, I won't notarize, and I have had signings go south on me because of that. If, as happened recently, a prospective signer does not know the week, month of the year, and the year, how old she is, how many children she has or what their names are, she isn't going in my journal.
The title companies always seem to find a compliant notary, though, who will take up where I refused to go. Perhaps you were that compliant notary in this instance?
I have wondered, since I am under no official imperative to ascertain capacity, what my liability would be if my failure to notarize queered a deal and cost someone a bucket of money. Would the judicial system pat me on the head for being a responsible notary public, or would it tell me I am arrogantly presumptuous and to pay for the losses?
| Reply by Philip Johnson on 6/20/08 12:34pm
Msg #252276
Common ground :)
I too have walked away from a few folks who didn't know the month, year, etc. I did wonder later if someone who came behind me just overlooked that for their small part, I hope not.
| Reply by DeborahInCA on 6/20/08 1:19pm
Msg #252281
Please call your local District Attorney office immediately. Also, please contact your local Adult Protective Services. Any time you feel uncomfortable about influence or capacity, let them know. Whether you notarize or you don't, reporting is critical.
We had a Notary Luncheon in CA with District Attorney representatives from two counties that let us know we, as Notaries Public, are often the first line of defense in elder abuse.
I am a Fiduciary and Professional Conservator and it is harder to go back and rectify these issues than to stop them in their tracks as they happen.
You might wish to let the title company know that you are reporting the file to APS and the DA offices.
Consulting with counsel (your attorney) on how / if you can void your notarization might be a good thing to consider.
| Reply by LKT/CA on 6/20/08 1:39pm
Msg #252282
You cannot let dominant personality types intimidate you in your job as a Notary. Had he said this to me <<“your job is to just notarize signatures”>> I would have said, "Yes, I know what my job is AND how to do it. I'd like to speak with the two signers ALONE for a few minutes."
Since what you described does sound shady, he would have protested at my request and asked me to leave.....so what. I'm not intimidated by titles (attorney, doctor, president of the U.S., nuclear scientist)......all can "told off" if they get out of line with me.
| Reply by Cam/CA on 6/20/08 1:52pm
Msg #252284
Re: I think he's got the point by now n/m
| Reply by LKT/CA on 6/20/08 2:49pm
Msg #252293
Really? How can you tell? n/m
| Reply by Cam/CA on 6/20/08 3:01pm
Msg #252295
Re: No doubt the same way you did n/m
| Reply by LKT/CA on 6/20/08 6:08pm
Msg #252320
I got the point B4, not AFTER the fact n/m
| Reply by VioCa on 6/20/08 1:57pm
Msg #252285
The sad thing is that the TC will always find a Notary willing to notarize for elderly with dementia. I walked from a signing one day because I refused to notarize a power of attorney for the wife to sign the docs. and guess what, after three days I was sent back to notarize the wife signing with the power of attorney. I was not told that it is the same deal so I walked again and I do not even know if I have done the right thing, knowing that the power of attorney is not legit, I figured that it is not ethical for me to do it. I called the TC and let them know that it is my duty to report this to the DA. I have not heard from that TC ever since, but no big deal, I cannot stand when somebody tries to take advantage of elderly.
Any input would be appreciated. Thanks
| Reply by NCLisa on 6/20/08 2:37pm
Msg #252291
You need to contact the NC State Bar n/m
| Reply by Carmen/123 on 6/20/08 4:49pm
Msg #252309
Well this is a very interesting topic. A good friend of mine and I were having a discussion regarding mental capacity and I was looking for this information in the 2008 SOS handbook. I remember having read something about this subject but since I could not find it I decided to call the SOS direct. Here is what they said to me. to my surprise; 1. It is not addressed in the hand book. (I could have swore it was and I know it is in the NNA's law primer) She went on to say the reason it is not addressed is that we are not trained to judge capacity. We are there to verify identity/signature. She stated that if a person is awake, could sign there name and had ID there was no reason not to notarized their signature. If there is a mental capacity issue then that would have to be decided in a court of law. She went on to say even when we ask the signer if they understand what they are signing , how do we REALLY know that they do; we don't. We are there to verify identity and signature that is all. Now I don't necessarily agree with this but this is what I was told.
But for the record, personally, if a signer doesn't seem with it. I walk away. No exceptions!
Carmen
| Reply by MikeC/NY on 6/20/08 5:19pm
Msg #252312
I really find it hard to believe that CA - which has probably the strictest notary laws in the country - would allow you to notarize in a situation where the signer is clearly out there where the buses don't run any more... Maybe you should get a second opinion, because this just sound right...
| Reply by LKT/CA on 6/20/08 6:47pm
Msg #252325
<<<I really find it hard to believe that CA - which has probably the strictest notary laws in the country - would allow you to notarize in a situation where the signer is clearly out there where the buses don't run any more...>>>
I believe the CA Certificate of Acknowledgment addresses this. It says the following (I'll just reference it to a single, female signer):
"......who proved to me on the basis of satisfactory evidence to the person whose name is subscribed to the within instrument AND ACKNOWLEDGED TO ME THAT SHE EXECUTED THE SAME IN HER AUTHORIZED CAPACITY and that by her signature on the instrument THE PERSON or entity upon behalf of which the person acted, EXECUTED the instrument."
Then the Notary signs under penalty of perjury that the paragraph is true and places seal. If a signer does not have all their ducks in a row, then the signer cannot acknowledge or execute (or have someone executve) anything and the Notary should not sign and seal the certificate as such. JMHO
If the Notary is not satisfied that the signer is in their right mind mentally, I believe it's their call.
| Reply by Linda_H/FL on 6/20/08 7:54pm
Msg #252341
""......AND ACKNOWLEDGED TO ME THAT SHE EXECUTED THE SAME IN HER AUTHORIZED CAPACITY ... "
I don't think this refers to mental capacity...this cites under what authority she is signing (for herself, as authorized agent of a company, etc., etc).,....but I don't think this part of your cert refers to mental capacity at all...JMO
| Reply by BrendaTx on 6/20/08 8:17pm
Msg #252344
Re: Shady Deal - you are correct, Linda.
This capacity has nothing to do with that capacity.
| Reply by Lee/AR on 6/20/08 8:52pm
Msg #252354
Lotsa scary notaries out there, huh? n/m
| Reply by Charles_Ca on 6/20/08 9:31pm
Msg #252365
Re: Lotsa scary notaries out there, huh? Ya, there are! n/m
| Reply by LKT/CA on 6/20/08 11:36pm
Msg #252390
Yeah, there sure are scary notaries out there, Lee! n/m
| Reply by Carmen/123 on 6/20/08 9:01pm
Msg #252359
You are absolutely correct Linda. We cannot certify capacity period per California notary law. So if a acknowledgment is prefilled out say with the words 'Joe Smith and Mary Smith, trustees of the Smith trust'. We are to cross out the trustees of the Smith, blah blah part.
Carmen
| Reply by LKT/CA on 6/20/08 11:34pm
Msg #252389
<<<this cites under what authority she is signing (for herself, as authorized agent of a company, etc., etc).,>>>
You may be correct however.....it says "acknowledged (meaning the signer) to me (me refers to the Notary)
How would the signer know what she is acknowledging and to whom if she doesn't know what planet she's on? And the CA notary and placing their signature and seal on a certificate where the signer may not know to whom and for what.....
Just a thought...
| Reply by Pat/IL on 6/21/08 12:38am
Msg #252395
Re: So what you're saying...Wait...
So if I, of diminishing capacity, am thought by the notary to be of RAPIDLY diminishing capacity...wait...
If a train leaves the station traveling at 55 miles per hour...wait...
Yes, I would leave also.
| Reply by sue_pa on 6/21/08 6:35am
Msg #252406
PLEASE finish your thoughts
is it an electric train or a steam train?
| Reply by LKT/CA on 6/21/08 11:33am
Msg #252434
Re: PLEASE finish your thoughts
<<<PLEASE finish your thoughts>>>
And show even less intelligence in the 2nd post than the 1st? But wait...no wait....wait....it's a free country....no wait....just wait...wait, wait.........................................
| Reply by Linda_H/FL on 6/21/08 9:36am
Msg #252419
"How would the signer know what she is acknowledging and to whom if she doesn't know what planet she's on?"
She's acknowledging her signature on the document - that she signed it - she's not acknowledging or verifying the document to you - her acknowledging her signature says nothing at all as to her mental capacity or her understanding of the document.
Example....today my mother will sign a document verifying her address is 1234 Main Ave., Anytown, CT....document requires an acknowledgment and she'll sign the document and look you dead in the eye and acknowledge to you that she signed it - she'll even swear to the truth of it if you ask her to - problem here? My mother no longer lives in Ct - has lived in FL for 16 months and has no clue what day, date or time it is... she can swear or acknowledge til she's blue in the face - she's clueless as to what she's saying.
The wording in your certs has NOTHING to do with mental capacity...period...and you should know that. JMHO
| Reply by MikeC/NY on 6/20/08 8:36pm
Msg #252348
I agree with Linda - this wording doesn't have anything to do with mental capacity, it just basically says she's entitled to sign and did in fact do so.
There must be something in CA law that addresses mental capacity; I'm finding it hard to believe that the state allows (as per Carmen's message) the notarization of signatures of people who are drunk, coked up, demented, etc.
P.S.: In referencing Carmen's message, I don't mean to suggest that SHE believes this is true - only that this is what was told to her by someone in the SOS office.
| Reply by JanetK_CA on 6/21/08 2:30am
Msg #252399
I had the same response from the CA SOS a few years ago on this issue. The point is that determining a person's mental capacity is usually not black and white, i.e. a clear cut issue. There are many shades of gray around these types of situations. With elderly folks, I also like to get them to chat to get an idea as to whether or not they understand - and I've had many different types of responses.
Most recently, I notarized an estate plan for a woman under hospice care. She may not have had much hair left on her head, but there was no doubt in my mind that inside that head she knew exactly what she was doing.
I had another situation where a very nice husband and wife were signing a refi. She was the primary signer and the one who had made all the arrangements. He was happy-go-lucky and they clearly had a good relationship. He also made some jokes about the transaction to the point where it didn't even occur to me to try to determine if he was competent. But he kept forgetting the date. Later it occured to me that he might have been in the beginning stages of Alzheimers or dementia, or might have suffered a stroke. But then again, maybe not. There just weren't any big, glaring red flags and I decided to leave it alone.
I had another situation where a daughter wanted her mother to sign a POA. In this case, the mother did not appear to have all her faculties. She was grumpy and not very communicative, except saying several times that she did not want to sign anything. I didn't get any vibes of abuse or maltreatment at the time (although I've often wondered about it since...), but there was no way I would notarize her signature in that situation. The probability is that the daughter was just trying to take care of her finances, getting her bills paid, etc., but she waited too long to get the POA. Not my problem, however sad.
I'm sure most of you have your own tales to tell. Bottom line is that this type of determination is not easy, but while we may not have the training or expertise to accurately judge another person's competence, neither should we ignore the issue altogether. Our state law may not offer any guidelines, but that doesn't mean we shouldn't apply some basic notary common (?) sense. (jmho)
| Reply by Les_CO on 6/20/08 5:29pm
Msg #252313
Welcome to the BIG WHEEL!
You are guaranteed to WIN $100! All you have to do is bet your Notary Commission, and maybe, your house, your car, all your assets, a criminal record, and your reputation. But you’ll get a big hundred bucks! Why would anyone take this risk for so little money?
If in doubt..walk out!
That said, I have been there. I try and “help” if I can BUT be careful. Con artists play on sympathy.
I had one similar. Very, very nice big older house…Owner in bed in back room…An older guy…wife dead.. Daughter not there yet. Grandkids let me in (sleeping in van (OK plates) in driveway) lots of Maltese Crosses, body piercings, tattoos, etc. Mucho pizza boxes and other take out in kitchen, three dogs. (mess). Daughter arrived, with lawyer. Gave me paperwork, I asked about Dad’s ID?..They found it. Said had to speak to Dad. Went in said hello, how you doing, etc. told him who I was, and why there. He said fine, sorry he was in bed. (Nice guy, cognizant, but sick) I asked do you know why, and what you are signing? He looked at me quizzically.. The ‘lawyer’ interrupting, said to me “You are just here as a witness!!” I said to him. Okay, no problem lets go in the other room for a sec. I said I’m old and only know how to do this one way, so if these people are your clients, and you drafted these documents I will do exactly as you instruct. Just please hand write me a note saying that the signer is your client, and that I am acting as per your instructions, and that you absolve me of any fiduciary duty that I may have to the signer, and sign it. The Daughter then said: “Look we need to get this house out of Dads name NOW. My sister has a phony POA and is clearing out the bank account, and doing stuff with all the assets.” I said yeah.. that stuff happens. But before I notarize a signature on an older person I need to KNOW that they know what they are signing, and what the consequences could be. Lawyer says “That’s not your job” I say "You are probably correct, so just write and sign the note I asked for” He (huffily) refused, saying stupid, unnecessary, etc. Probably because he couldn’t spell fiduciary? (As far as I know, a notary has no (legal) fiduciary responsibility to a signer, in CO, but I wanted him to say that.) I said, well, I wish you guys luck, but I have to go. I hope your Dad gets better.
I also know I’m supposed to be an impartial witness, but in reality I’m not. It’s my way or the highway.
| Reply by Michael/NC on 6/20/08 7:53pm
Msg #252340
Reference your statement of:
"What is the general opinion, if you don’t feel the borrower is of a sound mind and judgment, is that a call we are suppose to make"?
Look at the Notary GuideBook of North Carolina Para. 3.3.2
I would have #1. NOT continued with the signing. #2. Would have told the attending Attorney to go take a leap.
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