Posted by Regal/NC on 8/19/09 5:36pm
POA Signing What would U do??
Unable to reach borrower prior to arrival for appointment. Upon arrival spouse states she is signing with POA due to husband being deployed. No heads up from SS or Title. Title & Lender request I add POA verbiage to required signature lines.
A. add verbiage w/o additional fee
B. add verbiage with additional fee
C. have spouse add verbiage
My selection is B.
Reply by Teresa/FL on 8/19/09 5:41pm
I agree with you, but my clients usually know that I charge an additional $25 dollars for signings that involve the use of a POA. I would send a short confirmation email to that effect and make sure I get an email acknowledgement of the additional fee before proceeding with the signing.
Reply by wisconsin on 8/19/09 5:41pm
Shouldn't it have to be C? the spouse with the POA adds verbiage.
Reply by Susan Fischer on 8/19/09 5:46pm
I've never add anything - signer signs "Jane Doe,
by Bill Doe, her attorney in fact." When an initial is required: "JD, by BD, her AIF." But check with TC, some have other variations.
Ack uses same - the only place I "add" anything. I don't charge an additional fee, even though it can drag out the timeline.
Hope that helps.
Reply by JanetK_CA on 8/19/09 5:58pm
Re: I've never add anything - signer signs "Jane Doe,
I would agree, I don't charge extra either. Only thing I'd add is that, at least here in CA, I wouldn't put anything different in the ack cert, just the name of the person who physically DID "personally appear before me".
Reply by jba/fl on 8/19/09 6:04pm
Same as Janet, including ack. wording. n/m
Reply by Susan Fischer on 8/19/09 7:38pm
A great point of clarification. John Doe did personally
appear before me, signing as himself, and as Jane's AIF, no?
Reply by Susan Fischer on 8/19/09 7:57pm
Put another way, there are two signatures on the DOT, for
insance. One's a POA. I'm ack'ing both signatures. Which, is my function, to notarize signatures and/or oaths. I guess the arguable point is about the omission of the second signature of the incorporated document. If omitted from the ack'mt, where is the compliance of the mandate to ack all of the signatories of the doc?
Reply by JanetK_CA on 8/19/09 8:45pm
Re: Put another way, there are two signatures on the DOT, for
In California, we are prohibited from certifying a signer's capacity. Plus, the required wording has a reference to that person's "authorized capacity", which I would assume would include as AIF for Jane Doe, for example. That's as close as we can get. I imagine this is another one of those areas where things will differ greatly by state.
Reply by Susan Fischer on 8/19/09 8:55pm
Agreed. State specific. But this notarization would not
be ack'ing the 'capacity' as a POA in any event. Only that the sig on the doc was signed by a signer's, attorney in fact. Two different things.
Reply by JanetK_CA on 8/19/09 10:10pm
Re: Agreed. State specific. But this notarization would not
I may be missing what you're saying because of my state-specific bias. But as I see it, when someone signs the other person's name, they are signing in the "capacity" of AIF and just mentioning that fact in the acknowledgment cert would be certifying capacity, imo. Is that what you're talking about?
The only thing we in CA can acknowledge is what is specified in the prescribed wording. And the only part we are to fill in (except for specifying the "he/she/they" stuff) is the date, our name and title, and the name(s) of the person or persons who appeared before us and "executed" the document, regardless of the capacity in which they did so, i.e. whether they signed their own name and/or someone else's.
Reply by Susan Fischer on 8/20/09 12:18am
Which begs the question, If "...and the name(s) of the
person or persons who appeared before us and "executed" the document, regardless of the capacity in which they did so, i.e. whether they signed their own name and/or someone else's" then including the POA signature is required on the ack.
"Certifying" capacity is not the same as acknowledging a signature of the person who did appear before you signing as an attorney in fact for another signatory on the document. Due to the legality of the POA, I'm presuming the AIF to have assumed the authority of signatory under another law. My capacity as a notary public is to legally document the signatures on a document. Not the reason/capacity of the signers.
I'm not in California. But I would challenge an objection to my notarial act of witnessing the signature of any signer of an attached document, since I am not responsible for the capacity of any signer. Two different things: the presumed legality of capacity of a POA, vs the validity of a POA as a signatory in my acknowlegement. Two people signed a Deed of Trust; one physically, and the other through a POA. Each signature is binding. I maintain it is my responsibility to acknowledge each signature on this document, regardless of presence, as the absentee signer has confered the right to sign in absentia by virtue of a POA.
Proving capacity and acting in a capacity are two different things.
Reply by JanetK_CA on 8/20/09 2:58am
Re: Which begs the question, If "...and the name(s) of the
I agree that we, as notaries, are to "legally document the signatures on a document", but there are several other things in my state that we are also required to document, like their identity and that they personally appeared before us. To me, someone claiming authority to act as POA for another doesn't override that fact. Someone else will determine the validity of their actions. I will record the actual physical events as they happened.
"Two people signed a Deed of Trust; one physically, and the other through a POA. Each signature is binding. I maintain it is my responsibility to acknowledge each signature on this document, regardless of presence."
You bring up a very interesting point, but I think we may have to agree to disagree on this one. Or maybe it's just differences from one state to another. Here's the entire text of the required CA Ack verbiage:
"On __________ before me, ______________________ (insert name and title of the officer) personally appeared _________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct."
Personal appearance is one of the very first things mentioned. Also, verifying "presence" is spelled out in our handbook as one of the key requirements for any notarization (except in the rare instance of use of a Subscribing Witness), so I do feel it's very material to the notarization. To me, that means that the person whose signature is being acknowledged was physically in front of me. If one spouse is signing for another, only one person has physically, "personally appeared" before me, as I see it. So by only putting that person's name on the Ack cert, I am confirming that aspect of the transaction. In fact, I suppose it could be argued that I would be committing perjury if I said otherwise in my Ack.
And since it's up to someone else to determine the validity of the POA, how could we take that as a substitution for someone actually signing in our presence? I suppose it could be viewed differently in your state - or elsewhere - but that's how I see it.
Interesting discussion, Susan! I'd be interested to hear how others see this.
Reply by Susan Fischer on 8/20/09 4:35pm
I truly see where you're coming from, Janet. Isn't it
amazing how two people, seeing the exact same thing, can reach such differing conclusions? I just can't get past the fact that if John is present to sign as himself, and present to sign in Jane's stead as her AIF, that I wouldn't acknowledge he signed as both in my presence - because I'm not saying Jane was present - only that her interests were represented by John.
It doesn't seem like anyone else cares to join this discussion - darnit, but I sure enjoyed your input.
Reply by John Schenk on 8/20/09 6:09pm
Re: I truly see where you're coming from, Janet. Isn't it
Here's how I did it before, and had no problems.
I would have her sign "Jane F. Doe by John R. Doe, Attorney In Fact," and then, after signing that way I would have here write in, After Jane F. Doe's name under the siggy line "by Jane F. Doe, Attorney In Fact". The siggy is then identical to what is written below it.
In the ack. I would scratch Jane F. Doe's name and after John R. Doe's name I would make it read "John R. Doe, Individually, and as Attorney in fact for Jane F. Doe."
In my notary journal I would also enter that in "Additional Information" and I would have John R. Doe sign as "John R. Doe" and then sign below that "Jane F. Doe by John R. Doe, Attorney In Fact."
After he signed my Journal, I would then fingerprint his right thumb, which I know is a controversial issue for some here, but that's how I do these. I would then promptly put my junk in my briefcase and hit the door.
Oh, and I DO write out on a piece of paper EXACTLY how I want them to sign the AIF before we ever start. If I know ahead of time, and I usually do, I type that out in big font and keep it on the table in front of them during the whole signing.
OOOPS...MY DOCS JUST ARRIVED...LATE! I'm outta here!
Reply by John Schenk on 8/20/09 9:03pm
I would have her sign "Jane F. Doe by John R. Doe, Attorney In Fact," and then, after signing that way I would have here write in, After Jane F. Doe's name under the siggy line "by John R. Doe, Attorney In Fact". The siggy is then identical to what is written below it.
I had issues with docs, and was late for an appointment when writing that. Held the HUD, sent the rest..printing away...then get a call to DON'T PRINT THEM....UGH.
Reply by Susan Fischer on 8/20/09 9:15pm
Oh, if I had a nickel for everytime I've heard *that* one...
Reply by John Schenk on 8/20/09 9:24pm
That's my story and I'm stickin to it. LOL n/m
Reply by Susan Fischer on 8/20/09 10:25pm
John, I like that compromise. (I wonder, though, if it would
fly in CA, what with its prohibition of certifying capacity. I need to look up that statute, see what it says, because I don't understand it yet.)
My bottom line is that the absent party, being duly represented, is acknowledged as such - on that day, in that jurisdiction, at an approximate time, on this document. I put my stamp on that.
Your solution simplifies my bottom line, and, addresses Janet's presence requirement as well.
Reply by JanetK_CA on 8/21/09 3:05am
You got it in one...
I believe the capacity thing is the central issue, otherwise I would agree that John's suggestion would make sense.
The statute about capacity is somewhat vague and oblique. Here's the text, to save you the effort:
1189 "(c) On documents to be filed in another state or jurisdiction of the United States, a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary to determine or certify *that the signer holds a particular representative capacity* or to make other determinations and certifications not allowed by California law."
What those other certifications not allowed by CA law might be, I haven't researched. [BTW, occurs to me we haven't heard from Marion in a while... This seems like the kind of thing she would chime in on.] In practice, this means deleting things such as marital status, signing as "trustee", and - I would argue - AIF. That the person before me also signed in his/her capacity as AIF is covered in the general verbiage of the cert, i.e that they "...executed the same in his/her/their authorized capacity(ies),..."
Overall, I'd say this is a great example of how differently various state laws look at things. BTW, if I may be so bold, I think this is also a great example of how people can have a difference of opinion without trashing each other! I thought it was great fun, too!!
Reply by BrendaTx on 8/21/09 6:04am
Janet, I'm NOT from Ca. but I understand this.
It's very clear to me what the Ca. law/rules say. You identify a person, nothing more.
It's up to the document prepared and going before the notary certificate to indicate the rest of it.
In Texas (and many, if not all, other states) for AIF, members/managers of LLCs, partners of LPs/GPs (and other entities) the "title" will be set out in a signature block and in the notary cert. and the notary does not have to see the P.O.A., the limited partnership agreement, or company agreement, et al to do this. When the person signs the signature block (if docs are drawn right) the signature block states their position in the entity they are signing for. That is the signer's statement that they are who they say they are and the notary relies upon that. The notary does not have to prove it. It is presumed, especially if the docs were drawn by a lawyer, that the document preparer has properly overseen the capacity of the signer prior to creating the documents. The signer also conveys this by signing as such.
I totally understand that Ca. notaries ONLY recognize the person in front of them and nothing more as to their marital status, official company status or even attorney in fact status.
To my understanding a notary in Texas is only ID'g the signer but if they purport to have a capacity in the foregoing document they sign then that capacity is on them. I do a lot of doc prep of commercial loans and entity documents in my day job. To this end I have had ability to study Texas lawyer educational materials for myself. I am not a lawyer so I could be completely "off" in my understanding. Nonetheless, that's what I "think" I know.
Reply by JanetK_CA on 8/21/09 1:50pm
Great summation, Brenda. Thanks!
Maybe I should add that I probably wouldn't have bothered with this thread except for the fact that there are so many CA notaries - including lots of newbies - on this board, and this isn't a subject area we are likely to deal with on a regular basis.
I think it's very important that we all understand how our own state's laws deal with various situations, rather than trying to get creative or helpful because of something written by someone from another state that may have made some sense.
Reply by BrendaTx on 8/21/09 3:24pm
That's why I got into it also, Janet.
Sometimes notaries get over zealous and want to see the "document" that "proves" capacity...even in Texas...it's not the notary's issue...it's the preparer of the documents and the signer. Just ID that person in front of you...don't try to verify that they are married, or are the company's management, etc.
Reply by BrendaTx on 8/21/09 6:07am
John, wrong for Ca.
Texas ways have nothing to do with very strict Ca. notary law. Janet is 100% right in my understanding of Ca. notary law.
Reply by BrendaTx on 8/21/09 8:11am
Nevermind...I was looking at it as if you were changing the
notary cert! Sorry, wrong number...please excuse the ring!
Reply by LynnNC on 8/19/09 9:13pm
In NC, different Ack for POA n/m
Reply by John Schenk on 8/19/09 5:57pm
I'd probably choose D.
D. Have spouse add verbiage With additional fee.
And by all means, confirm the extra fee.
Reply by Regal/NC on 8/19/09 6:13pm
Tnks 4 feedback. Title/Lender agree to B n/m
Reply by GA/Atty on 8/19/09 6:34pm
Reply by PAW on 8/19/09 7:22pm
I agree - "C"
I don't charge extra for someone signing under a POA. Why should you? There isn't any more work to be done compared to some other signings. Would you charge more if the person signed with a mark, or correctly used two credible witnesses?
Reply by LynnNC on 8/19/09 9:15pm
Title & Lender request I add POA verbiage
Then, why not B?
Reply by PAW on 8/20/09 8:00am
Re: Title & Lender request I add POA verbiage
If you feel the need to request an additional fee, then have at it. It is your business. Personally, there isn't much more for a notary to do in many states; some do require addition verbiage in the notarial certificates. It's all a part of the business. Nickle and dime'ing your customers to death is not conducive to running a successful business, imo. Establish your fees for what is most common, then the variances will typically work themselves out.
Let's put the shoe on the other foot for a moment. Say you took a signing, two signers, and agreed on a fee. You then find out, just before you leave for the appointment, that one of signers won't be present, so it will be a split signing. Since you now only have one signer, do you lower your agreed to fee? Probably not. So why would you raise your fee for something like this?
Reply by Linda_H/FL on 8/19/09 8:36pm
leads me to "E"....
Did lender and/or title see the POA to approve it prior to signing? Yuck..
Reply by Regal/NC on 8/19/09 8:57pm
Re: leads me to "E"....
Lender approved POA but failed to enter enter POA verbiage beneath signature lines. They requested that I enter the missing verbiage.
Reply by Linda_H/FL on 8/19/09 9:12pm
Reply by LynnNC on 8/19/09 9:17pm
Then, why not "B"? n/m
Reply by LynnNC on 8/19/09 9:17pm
I meant "A" n/m
Reply by JanetK_CA on 8/19/09 10:15pm
Re: leads me to "E"....
I've run into a couple of POA situations where there was no verbiage, just the person's name. I ended up writing on a piece of paper exactly what they needed to sign each time for the other person, so they could copy and not have to depend on memory. I never heard about any problems. Others, I've seen it typed in. I'm sure this is very lender-specific (and/or state specific)... including which way they want it written.