Posted by jojo_MN on 12/7/09 2:50pm
Msg #313323

What would you do if

someone asked you to backdate a loan doc package; you refused, so they and took the notarial page off the mortgage, inserted another one with their name as the notary, signed that page and "witnessed" the borrower's signature on their signature page. and filed it with the county?

Reply by OR on 12/7/09 3:00pm
Msg #313326

You need to report it. With out a question. That is the right thing to do.

Reply by Roger_OH on 12/7/09 3:08pm
Msg #313328

Absolutely report it. Altering a document after it's been notarized is falsification; a fraudulent act, and a felony in many states. Turn them in to your state commissioning authorities. The notary violated their oath and doesn't deserve to hold a notary commission.

I would also advise the borrowers what's been done to THEIR very important document; they may want to take some action of their own.

Reply by jojo_MN on 12/7/09 3:12pm
Msg #313331

Haven't spoken with the borrowers. I was asked to go back to the borrower's house the following week after it funded and have it resigned, but didn't. This action was done almost a week after signed.

Reply by Regal/NC on 12/7/09 3:11pm
Msg #313330

Whose seal is on the document?? n/m

Reply by jojo_MN on 12/7/09 3:13pm
Msg #313332

Re: Whose seal is on the document??

The person/ss that hired me.

Reply by Cari on 12/7/09 3:25pm
Msg #313334

curious...how did u find out? n/m

Reply by Linda_H/FL on 12/7/09 3:26pm
Msg #313336

Re: curious...how did u find out?

Probably the same way I found out that the Provident loan I posted about had a bogus notary certificate on it - when I refused to do it Provident's way I started watching the county records for the mortgage to record....

Reply by Cari on 12/7/09 3:28pm
Msg #313337

Jojo...report it to the county...you don't want to get

yourself in trouble...

Reply by Glenn Strickler on 12/7/09 3:30pm
Msg #313339

Re: Jojo...report it to the county...you don't want to get

In Ca, you would report it to the Secretary of State.

Reply by Regal/NC on 12/7/09 3:30pm
Msg #313340

Cari: Her seal isn't on the document. No problem for her.

She should contact her SOS and follow their directions. They may not be interested.

Reply by BrendaTx on 12/7/09 3:40pm
Msg #313344

Agree, Regal. The only time anyone gets excited is

if there's a loss. The reality is that backdating is illegal, yada yada yada...but if no one is harmed no one cares. Having said that, I don't do it because it is wrong. But good luck getting anyone at the state or county level to fix something that's not shown itself to be broken.

Reply by Glenn Strickler on 12/7/09 3:28pm
Msg #313338

Turn them in. n/m

Reply by Lee/AR on 12/7/09 3:31pm
Msg #313341

Am I getting this story straight? They asked you to backdate, but you refused and had the paperwork signed on the (correct) date you & the B's were together. Then, the entity who hired you removed the notary page with your signature & correct date... and replaced it with their own name/seal & the backdate? Wow!!! Darn right I'd report it.

Reply by BrendaTx on 12/7/09 3:37pm
Msg #313342

I'd report it also. I would not even have to ask.

It is wrong.

However, I would not get my hopes up that anyone will care. Good luck with this problem.

Reply by Lee/AR on 12/7/09 3:39pm
Msg #313343

Too true, Brenda n/m

Reply by BrendaTx on 12/7/09 3:41pm
Msg #313345

Right, Lee. They've got real "bad guys"

they are after and don't see any harm in a little backdating when there's truly serious crime all around that needs attention worse. It's wrong to backdate so don't do it. However, no one will care unless someone gets hurt significantly.

boo.

Reply by jojo_MN on 12/7/09 3:47pm
Msg #313346

Re: Too true, Brenda

You are all so right. Yes, I did check with the County Recorder's office. It was added after the fact.

I'm more concerned about the borrower, not the notary. He doesn't deserve to have the seal. I haven't voiced my concerns with the borrower or the county. I don't want to invalidate their loan. He had me that he told the borrowers that I dated with the wrong date (we signed on Sat., I dated Sat.) and would probably be back to their house to resign the docs using the "correct" date.

Reply by LisaWI on 12/7/09 3:56pm
Msg #313348

Re: Jolene,

Do you know if he redid the whole package? By the way, Wisconsin does have a Notary Complaint form available on the SOS website

Reply by jojo_MN on 12/7/09 4:01pm
Msg #313349

Re: Jolene,

Thanks Lisa. I'm filling it out. Like I said, I didn't speak with the borrowers. Not sure if I should. I'm guessing that he just swapped out.

Reply by LisaWI on 12/7/09 4:07pm
Msg #313351

Re: Hmmm

Did he actually meet with them is what Im wondering. 2 illegal acts if he didnt. Which of course doesnt make sense, cause you would think the whole loan package would have to be the same date as the mortgage.

Reply by Regal/NC on 12/7/09 4:03pm
Msg #313350

Don't contact the borrower. IMHO n/m

Reply by jojo_MN on 12/7/09 4:21pm
Msg #313353

Re: Don't contact the borrower. IMHO

Wasn't planning on it. Just don't like being in this position of having someone tamper with my work.

Reply by Roger_OH on 12/7/09 4:49pm
Msg #313358

Disagree...

Two parties were offended by this action; obviously Jolene who notarized the document, and the borrowers who signed it. Jo has an obligation to report the bogus notary and their illegal act to the state/county notary authorities; otherwise, what's the point of having notaries if what we do can be so easily circumvented with no repercussions? I agree that it may be frustrating at times, but there are also numerous instances where notaries have indeed been nailed (ask FedEx stores why they're not providing notary services anymore).

In Ohio, the Supreme Court files are chock-full of attorney notaries that have been been disciplined, and even disbarred, over abuse of their notary commission.

If someone had done something illegal to a document I'd signed, I'd certainly want to know about it, and weigh my options as to what further action to take against the perpetrator of the fraud. I think the borrower has the right to know about it, then let them decide.

My point is, this: I'd rather do something and have nothing happen, than to ignore it, have it blow up, and then be asked why I didn't do anything when I knew about it...

Reply by jojo_MN on 12/7/09 5:00pm
Msg #313361

Re: Disagree...

Yes, Roger, you have brought up very valid points.

Reply by Todd/OH on 12/7/09 5:14pm
Msg #313364

Another point

If it is later learned that the mortgage contained an illegal notarization, the entire document is junk. The note has no collateral behind it. The bank will NOT accept a mortgage note with no collateral. They will commence litigation very quickly.

Reply by JanetK_CA on 12/7/09 6:11pm
Msg #313380

Re: Another point

I was wondering about that, as well. Seems to me that most borrowers would be happy to just have it fund. It may be the lender who loses out or cares. What if the backdating prevented a rate lock expiration?

Reply by Todd/OH on 12/7/09 6:45pm
Msg #313386

Re: Another point

Backdating to save the rate lock is a problem. This is where the auditors need to be diligent and actually do their jobs. I know they can only check so many files randomly. The problem is bound to surface.

Reply by BrendaTx on 12/7/09 6:45pm
Msg #313385

Todd, I opine that you are wrong about it invalidating

the document. If so, people (signers) could purposefully arrange invalid executions and notarizations so that they could later say, "Oops, King's X!" The law won't tolerate that in any state, I'm guessing. (GUESSING, I say.)

I'm pretty sure (99% sure) that in Texas it would not invalidate the transaction. There would be a correction Deed of Trust/Mortgage filed with a short explanation at the top explaining the reason for the correction but the lien would be valid.

Wish Schenk was here to pontificate on it...but that's my thoughts from having a little bit of mortgage lending legal asst. stuff in my background.

DISCLAIMER: Just a lay opinion...not sure about anything.

Reply by Todd/OH on 12/7/09 6:48pm
Msg #313387

Re: Todd, I opine that you are wrong about it invalidating

Brenda - I was actually out on a limb myself. If the bank were to learn about it, it would be up to them to decide what they have. I'm sure they would find an inexpensive way to fix it and not care who caused it.

Reply by BrendaTx on 12/7/09 6:53pm
Msg #313388

Yep...I agree with that.

I'm pretty sure that there would be a pretty quick and easy fix for this one. If the issue was ever raised the borrower would be bound by any manner of agreements to execute a correction document.

Reply by John Schenk on 12/7/09 8:35pm
Msg #313408

Re: Todd, I opine that you are wrong about it invalidating

Just ran a quick Lexis search on this, and it would "appear", with a VERY QUICK search, that you are correct, Ms. Brenda...at least for Texas, which of course is a LAY OPINION with very little research, which is lay anyway. LOL

Notary backdating of docs is fairly foreign to our supreme court as a matter that has been decided on appeal that fully addressed that issue. There's been a couple that went up but reversed on other grounds. However, here's some interesting blurbs about whether or not weirdities (my new word I just coined LOL) would hold up, as they historically have.
*************************************************************************

One who is financially and beneficially interested in a transaction is disqualified from taking an acknowledgment concerning the transaction. Gulf Prod. Co. v. Continental Oil Co., 61 S.W.2d 185, 186-87 (Tex. Civ. App.--Texarkana 1933), aff'd, 139 Tex. 183, 164 S.W.2d 488 (Tex. 1942). However, if the instrument and the notary's certificate are regular on their face, and in no way disclose the interest of the notary in the transaction, the instrument is valid to subsequent purchasers without notice of the defect. Gulf Prod. Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488, 493 (Tex. [**18] 1942); Titus, 50 Tex. at 240; Peterson & Fowler, 48 Tex. at 412.

There is no evidence that, in 1838, the interest of the notary in the conveyance, while not evident on the face of the acknowledgment, rendered a deed void ab initio. In fact, the law is and appears to have been that, as between a grantor and grantee, deeds are valid even without a valid acknowledgment. Haile v. Holtzclaw, 414 S.W.2d 916, 928 (Tex. 1967); Portis v. Hill, 30 Tex. 529, 560-61 (1868); First State Bank in Caldwell v. Stubbs, 48 S.W.2d 446, 451 (Tex. Civ. App.--Galveston 1932, no writ).
*******************************************************************

Actually backdated docs in this case that were also done by a relative. That part of the case held up on appeal, and the deed was transferred as it should have been. I expect there will be more cases on backdating by notaries in the future, but just haven't been litigated all that much so far in Texas. I'm a bit behind on the supreme court updates. May be one coming up before them soon. I'll try to check soon, as I need to get caught up there anyway. That's certainly subject to change at any time, and it could very well happen. Sorry I can't give you something more definitive, but just don't have the time to research it. However, it appears to me that if that deed/mortgage gets notarized, it's probably going to stick if the innocent buyer wants it to stick, but again, just put in a couple search terms on Lexis and really didn't do any research on it. A different term in there could yield a different result, but with the small number of hits I got, it doesn't appear that it would at this time IN MY LAY OPINION.

JJ

Reply by BrendaTx on 12/7/09 9:14pm
Msg #313411

LOL, John...those were the exact cases that I called to

mind when I made my remarks. I could not have cited them but I knew about them. There are a couple of others I have around here...somewhere...that I have learned from. Gulf something-oily was a party, I remember that much. Once the clerk accepts it, and the parties have signed off in good faith then if fraud isn't a part of the deal, it's done....so it seems.

In another interesting case I have...uh, somewhere...a person had a power of attorney and they transferred a piece of property by that power of attorney, in ignorance, after the owner had died (rendering the POA useless), but it still stuck because of several reasons...good funds, good faith...someone doing what they thought was right. Anyhow, the property was conveyed. Useless bits of knowledge that no one cares about, but which I find interesting, well, I tuck them away so that I can sound very knowledgeable (ha ha) at cocktail parties. (Yeah, right. You know I'm at a cocktail party at least twice a week here in Central Texas where this is a hot topic.)

Reply by Lee/AR on 12/7/09 5:42pm
Msg #313373

To quote multiple people...

all that is necessary for evil (or bad things) to succeed is that good people do nothing.
So, at least go on record for reporting it. CYA, too.

Reply by JanetK_CA on 12/7/09 6:16pm
Msg #313381

And one more thing...

No one may have any complaints about this particular incident, and by itself, it probably won't generate any interest from the SOS. But... what if this were a frequent occurrence by the person who did this? If these kinds of things were routinely reported and a certain name or company kept showing up over and over, it might get some interest. OR if one of those times there WAS someone who had an objection and they realized that they had had previous complaints about this notary, then it could make a difference.

This is all probably wishful thinking, since they might not even keep any record of these types of reports, but ya never know....

Reply by Todd/OH on 12/7/09 6:41pm
Msg #313384

Re: And one more thing...

Yes, but I would still report it. One less notary on the list won't mean much - unless YOU are that notary. I wouldn't want my a$$ to be grass on count of someone else's inappropriate and illegal act.

Reply by BrendaTx on 12/7/09 6:55pm
Msg #313389

I would definitely report it and continue to ask questions

until I got them to tell me something along the lines of the truth...."well, we really don't have the time or resources to investigate these allegations..." just so I could say, "Oh, so really, those rules don't mean anything unless something ELSE illegal is transpiring...THEN it might become an issue." Because, in my heart of hearts that's the way I think it is.

Reply by JanetK_CA on 12/7/09 11:41pm
Msg #313419

Re: And one more thing...

Maybe I'm not understanding your post - or maybe my post wasn't clear. I was trying to make a case in favor of reporting the tampering to the SOS, even though they may not do anything about it... this time. The more transgressions get reported to the proper authorities, the harder they are to ignore, I would think.

Reply by Todd/OH on 12/8/09 6:08am
Msg #313425

Re: And one more thing...

I believe I understood the post correctly. The issue needs to be reported so the notary is on record. That's all that matters. It's the SOS's job to follow up. If enough cases get reported it will get their attention.

Reply by Louis/AZ on 12/7/09 4:37pm
Msg #313354

I had a similar situation

I had a similar thing happen to me last year. I wouldn't backdate the Deed of Trust, so the signing service that hired me found someone else to do it (and stiffed me on the payment). I called the County Recorder's office AND the Secretary of State's office and explained the situation. I included the name of the Notary and the signing service who instructed me to break the law. I was told by both entities that it was up to the signer to file a complaint and/or pursue litigation in court. I sent the borrower a politely-worded e-mail that explained the facts about backdating the notary sections of documents. I gave her the SOS contact information and told her she could call them if she felt so inclined. Since the borrower was happy with her loan and eager to get it done, my guess is she didn't pursue any action.

This is exactly why I don't feel compelled to do anything when I see a notary make a significant (or illegal) mistake anymore. If the SOS office isn't willing to do something to police their notaries, I'm not about to play police for them. It makes you wonder how many improperly (and fraudulently) notarized documents are out there in the courts, the county recorder's offices, and elsewhere.

Reply by OR on 12/7/09 5:20pm
Msg #313365

Re: Wow that is something to think about.

Wow that is why so many people brake the law. No one cares to take action. I can almost see why the borrowers don't want to. It takes them so long to get to the table with all he hoops they have to jump threw. But the Count Recorder I would have thought they would be the first place to start because they have the bad DOT on file. Do you think if the borrowers every want out of this loan they could get it out based on the bad DOT notarizing. I wonder if the Note holder (loan servicer) would care. I guess we will never know.

Reply by Regal/NC on 12/7/09 5:34pm
Msg #313370

OR: Document met their requirements. The county has no way

of knowing it was backdated.

Reply by Linda_H/FL on 12/7/09 5:47pm
Msg #313375

Jolene has that documentation/proof

In the e-mail she received containing the new package to be signed, which is dated...her journal....and copies of any communication between them about getting it resigned at the later date....copy of recorded mortgage with backdated cert...

Would I drag the borrowers in? Not sure - the loan already funded..they're probably happy - would I let this go? Probably not...but just be prepared to back up whatever you report and stick it out for the duration.

MHO

Reply by Todd/OH on 12/7/09 6:38pm
Msg #313383

Re: OR: Document met their requirements. The county has no way

You're right - the county wouldn't know nor do they care. I can give them any document I want. If it passes muster with them and I pay their fee, it goes on record.

Reply by Stamper_WI on 12/7/09 7:35pm
Msg #313394

Re: OR: Document met their requirements. The county has no way

I agree on that. The Register of Deeds was about 5 ft away from us in there when JoJo and I were discussing this after finding the mortgage. I saw him kind of look at us once but then went back to what he was doing.
They have no way of knowing if the dates are correct.

Reply by Julie/MI on 12/8/09 6:43am
Msg #313427

To OR about the county recorder....

....for 7 years I worked for the county recorder....the county is a record keeper only, they do not nor ever will interperate the "legalness" of a document, that's for the title company to determine.

The document simply must comply with the state's recording requirements and that was my job, to make sure the margins were correct, the signatures matched the printed names, the marital status was complete, the notary verbiage was good and a litany of other requirements.

The recorder do not search title before recording or call/notify people and tell them a mechanic's lien is being filed against them or that a Lis Pendens was filed.

Hope this clarifies.

Reply by Regal/NC on 12/7/09 5:56pm
Msg #313376

jojo: Please at least post what response you get from the

SOS - Borrower regarding your compliant. What state is the offender located in?

Reply by jojo_MN on 12/7/09 6:09pm
Msg #313379

Re: jojo: Please at least post what response you get from the

Wisconsin. Will post if I get a response from SOS.

Reply by Marian_in_CA on 12/7/09 7:32pm
Msg #313393

Re: jojo: Please at least post what response you get from the

That's the kicker.... this other notary was in a DIFFERENT state! I mean, how DUMB can the title/lender be to let that go through?

IMO, this is something the borrower would have to pursue with the lender/title. If the lender catches on first, they can simply re-do paperwork and fix it. If the borrower catches wind of it first, it, and they're feeling litigious enough... it could cause some serious issues.

If I were the borrower, I'd be WAY ticked off and I'd be on the phone with a real estate attorney pronto. I know it might invalidate the loan, but it would (in my not so legally educated opinion) cause expense and damage to the borrower which was not their fault....so I doubt they'd be in any jeopardy of losing their home.

Reply by Stamper_WI on 12/7/09 7:38pm
Msg #313395

Re: jojo: Please at least post what response you get from the

The offending notary is in the same state as the borrower. JoJo is commissioned in 3 states and lives in a different state than the borrowers. She used her WI seal/ commission on this transaction.

Reply by Marian_in_CA on 12/7/09 7:45pm
Msg #313398

OH!! okay... nevermind then.

Well, at lest for that part about the different states.

Reply by jojo_MN on 12/7/09 7:40pm
Msg #313396

Re: jojo: Please at least post what response you get from the

The other notary, lender, tc and borrowers are all in the same state. I live in Minnesota but am commissioned in Wisconsin.

Reply by Art_MD on 12/7/09 7:09pm
Msg #313390

were states the same?

Curious... 75% of my signings are out of state TC/SS. Was the substituted page signed in the same state even??

Art

Reply by Marian_in_CA on 12/7/09 7:09pm
Msg #313391

Here's what I'd do...

1. Contact the borrower. Seriously. This could cause you some serious problems in the future if they there are any legal issues with the loan or property. In fact, a future title search alone could cause a red flag is they see the multiple seals. Bad news. The borrower may not understand or even care...they might even get mad because it could derail their loan, HOWEVER be careful in what you tell them.


2. Contact the SOS of the other notary/service and forward them copies of the public documents, plus a letter. Make sure you tell them that you are reporting FRAUD in order to get their attention.

3. Contact the lender/title. Again... they may not appreciate it... but then again, they might.



The borrowers could lawyer up and could possibly win a mighty fine lawsuit against lender or title for letting the docs go through. You're fine... but somebody needs to speak up. It will likely cause a big mess all over the place... but it's not your fault.

This is the kind of thing that would put a CA notary in jail... not sure about Wisconsin, though.

Reply by MikeC/NY on 12/7/09 8:36pm
Msg #313409

I would report them, but...

... if they removed your page and replaced it with theirs, what proof do you have that something illegal happened? Your page doesn't exist anymore, other than in bits and pieces at the bottom of their shredder. Unless you have a journal signed by the BO that indicates you notarized the mortgage on that date, there's not much else that would support your claim (yeah, there are other documents in the package that you notarized on an allegedly later date, but that proves nothing).

My gut reaction in a case like this would be to notify - in writing - the BO, the TC and/or lender, the SOS, and the county clerk that there is an "irregularity" in the recorded document and present whatever evidence I had to support that statement. I would be careful not to accuse anyone of anything, because I have no way of proving how and when the "irregularity" occurred, but at least everyone would be on notice that something's not quite right (if I was feeling magnanimous at the time, I might cc the SS who committed the "irregularity", but that's optional....).

If no one cared enough to do anything about it, I would let it go - at least I would have done the CYA thing in case a lawyer for the BO comes sniffing around later....

Reply by John Schenk on 12/7/09 8:49pm
Msg #313410

I definitely think it's totally WRONG...

but don't know what kind of response you would get from the Secretary of State or Attorney General in your state if neither the lender, nor the borrower, are complaining about it. Too much other crap going on out there that they're trying to concentrate on regarding mortgages at this time, but we probably have a duty to report it, and should.

As for any personal repercussions regarding the loan, I wouldn't worry about it. You have your journal, and you didn't do it, so I really see no problem there. The fraudulent recording of the instrument doesn't affect you since you weren't a party to it. IF something happened in the future, you could definitely be a witness, but if you keep good books, and it's not your name and stamp on the instrument, I sure wouldn't worry about it for any personal liability.

I think it's just a personal call as to whether you report it or not. You witness somebody getting mugged. Do you stick around to talk to the cops and tell them what you saw, or not? You witness a wreck...do you stick around to tell the cop, or give the people involved in it your name, phone, address, what you saw, or not? Sometimes folks stick around, and sometimes they have better things to do and don't. Nobody can really tell you what to do. I suggest you vote with your conscience and follow it. Don't really see legal repercussions on you since you didn't participate in it.

JUST MY LAY OPINION.

JJ

Reply by BrendaTx on 12/8/09 6:32am
Msg #313426

If I were going to report it,

I think I would go to the time and expense to send it certified mail, return receipt. At least they might recognize that someone was tracking it and, at minimum, respond to the sender.

Reply by jojo_MN on 12/8/09 9:28am
Msg #313458

Good idea, Brenda. Thanks n/m

Reply by jojo_MN on 12/8/09 9:33am
Msg #313459

Thank you to all who replied. I will take all replies into

consideration and follow thru. If the SOS replies, I will forward the outcome. I just don't want to ge a reputation of "being a narc". There have been quite a few of back-dating instances in the past that I've just turned my head, but if he is tampering with a document that I witnessed, I can't look the other way.

Also, thank you, Zana, for walking me thru the process of checking up on it at the County. Would have never done it without you!