Posted by Chrissy/NC on 1/9/09 11:35am
Msg #273974

SOX is at it again

My skin crawled yesterday when I got a call from SOX, Sign on the X. Wanted me to do a job for them. I let the lady who seemed oblivious to thier reputation, that I asked to be removed from thier call list over a year ago because they are a scam company. She was so surprised. People beware, SOX is still around unbelivable!

Reply by docs1954CA on 1/9/09 12:05pm
Msg #273977

I think the only way to drive these deadbeats out of the business is for the borrowers to complain about them. It doesn't seem to do any good for us to complain to the lender or title that we didn't get paid. I've never worked for SOX.

Take the closing, then call them 30 min before the closing and give it back, and tell them why. Make it very hard for them to find anyone to take it. The borrowers, unfortunately will be the ones to suffer the delay, but in the long run if it happens alot, perhaps SOX ( and the other DB co's ) will lose the account due to customer complaints. I know, a very radical approach to the situation, but it might work.

Reply by Chrissy/NC on 1/9/09 12:19pm
Msg #273979

Sounds like sweet revenge to me, but I could not do that in good conscious. I prefer to do a search in notary rotary of SOX and follow other notaries advise if I were to take a job.

Reply by Kevin/Ct on 1/9/09 1:00pm
Msg #273980

If you accept the job, and subsequently refuse to perform on the basis of what you have heard...you may be sued for consequential damages in an action for contract breach. You are much better off rejecting the job initially.

Reply by CaliNotary on 1/9/09 1:11pm
Msg #273981

That is ridiculous

You're not going to get sued if you give a job back to a signing service.

Reply by Kevin/Ct on 1/9/09 1:19pm
Msg #273983

Re: That is ridiculous

I think you better review the concepts of contract law before you make that statement. There are three elements to a contract...offer...acceptance...and consideration. When they contact you that is the offer. When you agree to do the job that is acceptance. The consideration is the exchange of promises ...yours to perform the closing and theirs to pay you.

Reply by CaliNotary on 1/9/09 1:35pm
Msg #273987

Re: That is ridiculous

I have a BA in Business, I'm well familiar with the concepts of contract law.

I'm also quite familiar with how the real world operates, and in that world you are not going to get sued by giving a signing back to a signing service. In that world the burden of proof that a verbal contract was made falls on the plaintiff and a phone that only shows that they called you hardly qualifies as proof. In that world a company like SOX can have hundreds or thousands of complains filed with the BBB, the IRS, the local police, and whoever else people are complaining to, yet apparently suffer zero consequences as a result of it all, since they've been ripping off notaries since the first day I went into business, almost 6 years ago.

So yes, it is ridiculous.

Reply by MistarellaFL on 1/9/09 1:38pm
Msg #273988

Not only that

But prove it.
Any successful litigation requires evidence.

Reply by Kevin/Ct on 1/9/09 2:04pm
Msg #273995

Re: That is ridiculous

A BA degree and a law degree are quite different....as is a license to practice after having passed a two day Bar Exam. Your opinion of how the real world works and the realities of the legal system are also quite divergent. Believe me...I litigate cases in contract law routinely...hundreds of them over the past 24 years. ...90% win rate. If you breach the contract and violate violate the elements... you are liable for the damages if the signing service can not secure another signing agent to complete the signing. Please do not play arm chair attorney without the credentials to support it.

Reply by Vince/KS on 1/9/09 1:42pm
Msg #273990

Consideration = money or benefit rendered per agreement n/m

Reply by Kevin/Ct on 1/9/09 2:20pm
Msg #273999

Re: Consideration = money or benefit rendered per agreement

There are express contracts, contracts implied in law, contracts implied in fact, bilateral contracts and unilateral contracts. The form of the consideration often depends on the nature of the contract. An exchange of promises is a a sufficient consideration to support a contract.

Reply by MichiganAl on 1/9/09 5:48pm
Msg #274026

Then let me ask you a question Kevin

Doesn't that exchange of promises go both ways? If we agree to a closing and they later cancel the closing, am I not still owed my consideration?

Reply by MistarellaFL on 1/9/09 7:34pm
Msg #274036

Re: Then let me ask you a question Kevin

Good point, Al.
And what about if you got sick and couldn't complete the assignment?
If something came up, could they proceed?
I also wanted to mention that I don't think a confirmation email could be considered as
evidence, as back in the day, I don't know how many times I would receive one, for a
closing I was never solicted for. Now, if they had a response, that might be different.

Just want to make it clear that I don't think that proceeding the way the poster described as the answer...I prefer to let my reasons for declining work known to the company, whether they seem to care or not.
But I don't believe they could do anything about it legally, with just a confirmation sent via email.

Reply by Kevin/Ct on 1/10/09 5:11am
Msg #274076

Re: Then let me ask you a question Kevin

There is a defense to an action for contract breach called impossibility of performance. If it were impossible to perform the signing for reasons beyond your control you could argue this.
However, contract law is one of the few areas in which there are black and white principles, and sickness, car trouble, etc. probably would not qualify as a defense unless you conditioned your performance on these possibilities within the contract.

The offeror would also have an obligation to mitigate its damages. This means that they would have an obligation to attempt to obtain another signing agent to reduce their damages. They do not have to be successful. They only have to show that they tried if challenged on that point at trial. If they fail to attempt to mitigate, their damages can be reduced accordingly in a judgment. The defendant signing agent can raise mitigation of damages as defense to reduce his exposure. In the event that the offeror successfully obtained the services of an alternate signing agent, but had to pay more than your fee for the other signing agent's services, the consequential damages would be limited to the amount in excess of your fee that had to be expended. If the services of another signing agent could not be obtained...you get caught with the full boat.


The confirmation is very admissable imto evidence as a business record. It is quite relevant to establish that an offer was made, and thereby establishes the first element of the contract. The confirmation usually lists your compensation in the event that you perform the closing . This establishes their promise to pay you...their end of the consideration. It also contains the specifics of how you are to perform the closing. Presumably when you accept the assignment these are your promises in return. The original poster indicated a practice of rejecting the closing after initially accepting it. The rejection letter/email is admissable against the signing agent as an admission by a party opponant, and establishes both the prior acceptance and the subsequent breach. The burden of proof would then shift to the signing agent to prove either that he/she did not breach the contract or that he/she had a valid defense for failure to perform. Once there is an offer, acceptance and consideration there is a binding contract.

Reply by Kevin/Ct on 1/10/09 4:36am
Msg #274075

Re: Then let me ask you a question Kevin

We are talking about consequential damages rather than compensatory damages. Compensatory damages would be your fee after you have fully performed your services. Consequential damages are damages you would have suffered as a result of their breach other than your fee. Much would depend upon whether you had agreed to a cancellation at the outset. If you are concerned about it then you should make it clear to them at the outset that there is a cancellation fee of some sort to compensate you for business you have turned away in expectation of performing their closing.

Reply by Marian_in_CA on 1/9/09 1:31pm
Msg #273985

Re: That is ridiculous

Well, you can be sued for anything. Whether or not they are successful is another story. You could lose if it could be proven that you were accepting work with absolutely no intention of completing it, especially if you are doing so to "get back" at them knowing that dropping the appointment just prior to the appointment will make it difficult on them.


Some of these services likely deserve to be treated that way on the karma/do unto others side of things, but I know that I wouldn't do it. Far better to just say, up front, "Absolutely not. Your company has a poor reputation for paying and that's not a risk I'm going to take."

Reply by CaliNotary on 1/9/09 1:39pm
Msg #273989

Re: That is ridiculous

"You could lose if it could be proven that you were accepting work with absolutely no intention of completing it"

Which is a pretty important concept. How would they prove that?

And another important concept? Who in their right mind would go through the effort of suing over something like this? What are the damages? The cost of a few more phone calls to find a different notary?

Reply by Marian_in_CA on 1/9/09 1:48pm
Msg #273993

Re: That is ridiculous

Exactly...

However, posts on a public message board where a lot of industry-related people visit might be a step toward that.

Given this particular company and the interesting court history involved (just look up Orange County Superior Court and search by company and/or principle name), I'm not so sure they'd be bothered.

One thing to remember, though, the lack of a court judgment does not always equate to legality. Accepting contracts with malicious intent is still unethical, and likely illegal in some states.

Of course, them entering in to a contract knowing they won't pay you is equally unethical. The best way to avoid it is to just say no in first place. I wouldn't risk my commission just to prove a point to a company that most of us already know to avoid.

Reply by Susan Fischer on 1/9/09 8:49pm
Msg #274049

"Accepting contracts with malicious intent is still

unethical..." Isn't that fraud?

The basis for a contract is "a deal's a deal." For instance, I sold my house with a hand shake in 2002, cash on the barrelhead. 10 minute signing, five pages of legals, then a beer at the Red Eye.

It's a meeting of the minds. It's legal. It's in good faith. It's satisfied. A deal's a deal.

The body of contract law is phenomenal.

Reply by Kevin/Ct on 1/10/09 5:33am
Msg #274078

Re: "Accepting contracts with malicious intent is still

The validity of the contract can very much rest on whether or not there was fraud in the inducement when an offeror lures the offeree into accepting. Fraudulent contracts are void or voidable. The usually come into play when there is either fraud on both sides of the transaction or fraud on one side of the transaction coupled with a mistake on the other side.

Reply by Kevin/Ct on 1/9/09 2:08pm
Msg #273997

Re: That is ridiculous

You are really naieve. It is a matter of shifting burdens of proof at trial. All the plaintiff has to do is introduce the written confirmation to establish the offer. Your email explaining that you are backing out of the deal is evidence of an initial acceptance and a subsequent breach. If you think you could succeed on that argument in court...good luck. I would love an easy win like that.

Reply by Todd/OH on 1/9/09 4:03pm
Msg #274012

Kevin has a point

It's better to turn the signing down when you get the call than to drag it out and play a game. Once they send you a confirmation, they have electronic proof. It can get ugly.

Reply by MikeC/NY on 1/9/09 8:10pm
Msg #274042

Re: That is ridiculous

I think Cali's point was not that they can't sue, but that they probably wouldn't because it's not worth the effort.

SOX has a documented record of not completing their side of the contract, so they don't come into this with clean hands; a really good lawyer might be able to squash that information in a trial, but I don't see how it would be the slam dunk you think it would be.

That being said, I think it's a bad idea to accept an assignment when you have no intention of completing it. The only one who gets hurt in that situation is the borrower, who has no idea of what's going on behind the scenes. It's not something I would ever do; I'd put it right up there next to demanding payment up front and holding the docs hostage...

Reply by CaliNotary on 1/9/09 8:55pm
Msg #274054

Exactly

It's kind of like the law in CA that says even asking a notary to do something illegal is a misdemeanor. While that may be technically true, good luck finding a law enforcement agency to actually make the charge against someone.

You are simply not going to be sued if you give a signing back to a signing service.

Reply by Kevin/Ct on 1/10/09 5:35am
Msg #274079

Re: Exactly

So essentially you are simply assuming the risk rather than concerning yourself with the liability.

Reply by Kevin/Ct on 1/10/09 5:28am
Msg #274077

Re: That is ridiculous

The issue before the court is limited to the breach of the agreement between the parties. The Plaintiff's business dealings with other signing agents who are not parties to the suit are inadmissable because they are irrelevant to the claim before the court. It does not take any great degree of expertise to have the evidence of the irrelevant business transactions with non-parties to the suit excluded.

In a contract action the issues are ...1. Were the elements that establish a contract satisfied?, If so, was there a breach?, 3. If so, how much are the damages? If you were in court you would probably spend more time waiting for the case to be called than the length of the trial. Bring your check book.

Can they sue the signing agent...most definitely. Will they sue the signing agent for breach of contract...possibly. If you feel that strongly about it ... challenge them to sue you the next time. If it does go to trial, my money would be on the them.

Reply by CaliNotary on 1/9/09 8:51pm
Msg #274050

Re: That is ridiculous

"All the plaintiff has to do is introduce the written confirmation to establish the offer. Your email explaining that you are backing out of the deal is evidence of an initial acceptance and a subsequent breach."

And what do they do if you never put it in an email, but called them to give back the signing?

Reply by Kevin/Ct on 1/10/09 5:54am
Msg #274081

Re: That is ridiculous

It would be tougher to prove, but not impossible. In express written contracts the court examines the written instrument to determine the intent of the parties. When there is an oral contract the court examines the conduct of the parties to determine their intent.

There is an area of law called contracts implied in fact in which never a word is spoken by the parties. The entire contract is established by their conduct. The best example of it it is a shopper's conduct at a super market.

When the shopper takes the groceries out of the basket and places them on the counter he/she is making an implied offer to buy. When the clerk rings up the sale there is an implied acceptance. When the shopper pays the clerk, and the clerk bags the groceries there is both consideration and performance of the contractual obligations. This is an example that is actually taught in law school.

In the scenario that you sescribe the case is still very winable by the signing service. There is still the confirmation establishing the expectations of the offeror and reciting your fee. There is a shift in its position with its client to have the doc packages prepared and sent to you. The client's testimony of the document preparation and instructions to send them to you is very relevant and admissable. Presumably this would not have been done if there was no initial acceptance. There is the record to the telephone call from which a reasonable inference could be raised concerning your subsequent rejection. Ball is in your court to prove otherwise at that point.

Reply by Kevin/Ct on 1/10/09 6:41am
Msg #274085

Re: That is ridiculous

There is also a contract law doctrine called "Anticipatory Repudiation". This scenario arises when one party to a contract does something to cause the other party to think that they will not perform when the time of performance arrives. There are two alternatives...1. request assurances that the party will perform in a timely manner and wait for performance, or
2. repudiate the contract before the party has time to perform. The first alternative is the safer route. The second alternative is very dangerous, and is not advised because the assumption of non-performance before the time for perfomance has arrived may be wrong and construed to be a breach. Alternately, you can not make it impossible for the other side to perform its obligations, or you will be held liable for damages.

You all seem to think that a signing service's poor reputation with other notaries provides some justification for breaching the deal. It does not. If you were all aware of a signing service's poor reputation the question arises as to why you did not reject the deal originally rather than entering into the contract, and repudiating it.

Reply by JanetK_CA on 1/9/09 4:08pm
Msg #274014

Re: That is ridiculous

The signing service may deserve to be treated that way, but the borrower doesn't. They are an innocent party to the whole transaction. As tempting as it might be, I think it would be a very bad idea. And I doubt it would stop them from their criminal practices.

Seems to me that there has to be another way. Anyone who was contacted by the DOJ (?) about the price fixing / restraint of trade issues still have a contact? What about the FBI? I've never worked for this company either, but from all that I've read here, it seems to me that they have been intentionally defrauding notaries across the country on an ongoing basis for years. I wouldn't be surprised if they've cheated people out of hundreds of thousands of dollars by now. This is just off the top of my head, but when it gets to this magnitude, I would think some governmental enforcement agency would be interested. [Aren't they located in CA? Maybe someone who has lost $$ to them might want to contact Jerry Brown's office - State Attorney General - to see if they would be willing to investigate?]

Reply by Susan Fischer on 1/9/09 11:33pm
Msg #274069

Good point about damages, Janet. What if a borrower

has a lot on the line, and the notary no-show causes massive losses. Not such a big 'if,' if you think about it. Both SOX and the intentionally breaching notary would certainly be named, because some losses are worth going after, and when you do, you go after everybody. (I wouldn't be that notary, brrr.)

Clean hands...

Reply by Kevin/Ct on 1/10/09 7:06am
Msg #274087

Re: Good point about damages, Janet. What if a borrower

Very true. The Borrower would sue the lender Either for contract breach or tort. The lender would implead the TC to pass its liability to someone else. The TC would implead the SS. The SS would implead the notary. The notary is the low man on the totem pole with no one to implead to pass his/her liability along.

Reply by CF on 1/9/09 4:00pm
Msg #274011

Agree- CaliNotary n/m

Reply by dickb/wi on 1/9/09 6:13pm
Msg #274031

i think that you will find kevin very correct....to try to..

interpret law with out a law degree is very foolish and you should be glad that someone like kevin visits this site and gives you great information.....as a wi real estate broker,[47 years] i practice what is termed by the wi supreme court as limited real estate law and have a good grasp of the principles of law.........please don't think because of a ba degree or a long term as a notary public or signing agent that you have the ability to interpret law......it takes a lot of special learning for that...............

Reply by Susan Fischer on 1/9/09 8:53pm
Msg #274052

Right on, Dickb/WI. n/m

Reply by CaliNotary on 1/9/09 9:11pm
Msg #274060

I'm not trying to interpet law

I'm saying that it's just not realistic that you would get sued simply for giving a signing back to a signing service. I've done it several times and guess what? No lawsuits yet.

Reply by John_NorCal on 1/9/09 11:20pm
Msg #274068

I think the heart of Kevin's post is....

intent. If you knowingly accept an assignment, knowing that you will give it back for whatever reason, then the "injured" party could have a cause for action.

I believe that an argument can be made though, that information later obtained could justify actions in returning that assignment. Namely, the established reputation of a company like SOX and the likelihood that you would not be paid.

In the real world will that happen? Not likely. Could it happen? Possibly.

Reply by Susan Fischer on 1/10/09 12:06am
Msg #274071

The issue is intentionally giving back a signing in order to

induce borrowers to complain about the company who hired you to do the signing - all in hopes of bringing it down. Not your scenario, Cali.

The body of contract law says: a deal's a deal, so be careful what you wish for.

Reply by Kevin/Ct on 1/10/09 6:01am
Msg #274083

Re: I'm not trying to interpet law

I address that point above.

Reply by Kevin/Ct on 1/10/09 6:54am
Msg #274086

Re: I'm not trying to interpet law

It would be interesting if the signing service lost their client as a result of the breach. By way of example...if that client provided the service with $50,000.00 to $100,000.00 per year of revenue...guess what...you are on the hook for it.

Reply by MW/VA on 1/9/09 2:07pm
Msg #273996

OMG, that company is like "Groundhog Day"--it just keeps playing over & over again, like a bad nightmare. This is one to demand payment by PayPal upfront. That's my latest tool of the trade when dealing with companies with payment issues.

Reply by Chrissy/NC on 1/9/09 2:19pm
Msg #273998

How do you go about collecting through Pay pal?

Reply by Notary/Guy on 1/9/09 4:41pm
Msg #274020

1/2/2009 Excellent representatives, available by phone for all questions. CA
12/12/2008 POOR poor No Pay!Low Ball fees They get 250.00 You get 50 dollars if they pay??? CA
12/11/2008 So many complaints, why do you all keep taking the work??? OR
12/11/2008 BEWARE!!! of this compay. I have filed complaints with the FBI, FTC, etc. CA
12/11/2008 This company works for a very bad mortgage company that is unethical. OR
12/9/2008 Lacks integrity and does not pay their notaries CA
11/15/2008 no pay TX

Reply by Linda_H/FL on 1/9/09 4:46pm
Msg #274021

LOL...guess SOX decided to respond

"Excellent representatives, available by phone for all questions." - AND gave a 5-star rating....1/2/09.....

Reply by Marian_in_CA on 1/9/09 4:52pm
Msg #274022

I've actually been following one small claims case against SOX in Orange County. Joann Sadaka who was supposedly in Accounts Payable, was ordered to appear on 12/3/08 but didn't show I guess. And because she didn't show up, the judge ordered a bench warrant for her arrest. Ouch.

It's case 30-2008-00050352-SC-SC-HLH in Orange County Superior Court, under Small Claims is anyone is interested.

It's been a month, and there have not been any new entries.

Reply by Cari on 1/9/09 6:52pm
Msg #274033

Are there many attorneys on NotRot, struggling

like the rest of us in this business? Geez, I guess the legal biz is not like it used to be huh?

Reply by MistarellaFL on 1/9/09 8:08pm
Msg #274041

Re: Are there many attorneys on NotRot, struggling

Some states are att'y only...so I guess if there aren't any closings, even the big boys take a hit.

Reply by Kevin/Ct on 1/10/09 6:17am
Msg #274084

This sounds like a case in which a notary is trying to collect a fee after perforance rather than a case of damages arising from a notary's failure to perform.

Reply by Leon_CO on 1/10/09 8:12am
Msg #274089

A confirmation is not proof of anything.

>> Once they send you a confirmation, they have electronic proof. <<
-----------------------------------

I disagree on this.

A signing service tried to contact me to do a closing. I never spoke to anyone. When I checked my email there was a closing confirmation, including the documents. They just assumed that if they sent me a confirmation, I would accept the assignment.

I didn't do the closing, because I never agreed to do it.

So just because a signing service sends a closing confirmation, that doesn't mean that the signing agent agreed to do the closing.

P.S. They later called and left a voice message apologizing for doing that.

Reply by Kevin/Ct on 1/10/09 8:22am
Msg #274090

Au Contraire

The confirmation carries more weight than you think. You lucked out because the signing service backed off and apologized. If you doubt me...encourage the to sue you in the future. I Don't think you will be happy with the result. We again seem to be confronted with your opinion as opposed to experience in the legal system.

Reply by jba/fl on 1/10/09 8:27am
Msg #274091

Re: Au Contraire

I have had that happen - unannounced receipt of confirmation. This I suppose implies that someone has called prior to sending, yet was not done.

Now the burden is upon me - correct? So I must act to cancel, amend, accept or reject But what if I have gone off on vacation, phone service is non-existant where I am and I cannot reply? I am still on the hook legally? I find that to be an unlevel playing field.

Reply by Kevin/Ct on 1/10/09 8:33am
Msg #274093

Re: Au Contraire

It may be an unlevel playing ground, but that is what you have chosen as an occupation. You are correct in that you are obligated to reject unannounced confirmations. In the event that you are on vacation...inform your clients by email/letter. Temporarily block incoming emails while you are on vacation.

Reply by Kevin/Ct on 1/10/09 9:34am
Msg #274110

Re: Au Contraire

The other alternative may be for your ability to access emails while you are on vacation through either a cell phone text service or a blackberry.

Reply by Leon_CO on 1/10/09 8:33am
Msg #274092

Re: Au Contraire

>> We again seem to be confronted with your opinion as opposed to experience in the legal system. <<
-----------------------------------------

I'm not expressing an opinion. I'm expressing an experience.

There was no contract between myself and the signing service, because I never spoke to anyone or agreed to anything. Just because they sent me a confirmation doesn't mean we have a contract.

I'm not obligated to do anything under those circumstances.

Reply by Kevin/Ct on 1/10/09 8:35am
Msg #274094

Re: Au Contraire

Well, fine. You just persist in that belief , and see how far you get if you are sued. Burden of proof is shifted to you. What evidence have you got to present in defense.

Reply by Leon_CO on 1/10/09 8:39am
Msg #274096

Re: Au Contraire

>> Burden of proof is shifted to you. What evidence have you got to present in defense. <<
------------------------------

I don't need any evidence.

The burden of proof rests with the signing service. And if the only evidence they have is an email transmittal, that isn't sufficient. There isn't a court of law in this country that would find me guilty of breech of contract.

Your honor, I rest my case.

Reply by Kevin/Ct on 1/10/09 8:47am
Msg #274098

Re: Au Contraire

Well, thank you for your considered legal opinion. However, you are wrong. At trial there are shifting burdens of proof. The confirmation is instrumental in the signing service's establishment of its prima faciae case. . once the have established it...the burden of proof shifts to you to prove otherwise....It is called litigation in case you are unfamiliar with the term.
If you think that you do not need evidence to rebut their prima faciae case...you are saddly mistaken.

You might want to consider taking some courses in business law before offering ridiculous opinions upon which others may rely.

Reply by Leon_CO on 1/10/09 8:53am
Msg #274102

Re: Au Contraire

>> thank you for your considered legal opinion <<
--------------------------------------------------------------------

That is not a legal opinion. ("I am not an attorney ... yada yada." That is a personal opinion.

If a confirmation were proof of anything, any signing service could send me a confirmation and claim that I agreed to do a closing for them.

Like I said, I rest my case.

Reply by Kevin/Ct on 1/10/09 8:56am
Msg #274103

Re: Au Contraire

You may rest your case....but you lose. Continue with the ignorance maybe your luck will continue also.

Reply by MistarellaFL on 1/10/09 1:02pm
Msg #274122

However, you are wrong

I wouldn't say "wrong".
There are attorneys representing the plantiff and the defendant.
I would say about 1/2 of them would disagree with you, Kevin.
I know many lawyers, and they each have different stances.
Your stance is only one of millions.

Reply by MikeC/NY on 1/10/09 6:34pm
Msg #274128

Re: Au Contraire

Kevin, this makes no sense at all.

Are you seriously maintaining that an SS can just send a confirmation out of the blue, with no prior contact, and now it's up to the notary to prove that he or she never agreed to it in the first place?? How exactly are they supposed to do that? You can't prove a negative - it's logically impossible. So, according to you, the SS can just point to the unsolicited confirmation as proof of the contract, and the judge will then look to the notary to do the impossible - prove that no prior contact was ever made.

If that's true, I've just found a new career that's going to make me LOTS of money.... Forget this signing agent cr*p, I can just send out bulk emails confirming an agreement to purchase something, and then haul all their butts into court to enforce the "contract." Ka-CHING! I can almost smell the leather in that new Porsche right now...

Pardon me - I have some emails to write...

Reply by Kevin/Ct on 1/11/09 12:02am
Msg #274137

Re: Au Contraire

Please read my earlier responses more carefully. The confirmation is the first step. It is evidence of the offer. The testimony of their employees in the preparation of the doc package is evidence of their belief that you had accepted. It is not a matter of proving a negative. It is enough to shift the burden of proof to prove that you did not accept. You would be the one having to prove a negative. What have you got to present as evidence except your denial?

Reply by MikeC/NY on 1/11/09 6:17pm
Msg #274186

Re: Au Contraire

"What have you got to present as evidence except your denial?"

What have THEY got to present as evidence that I accepted their offer? The confirmation is just an email - anyone can send an email, and they can write anything they want in it. It's not a legal document and proves absolutely nothing other than that one party initiated a correspondence. Do you have phone records to prove that a call was placed to me on a specific date and time? Do you have a tape of this conversation we allegedly had, where the offer was made and verbally accepted? Do you have a witness (preferably one who is not willing to perjure himself) who heard this conversation? How about email records to show we had an ongoing correspondence? What about proof that I even received that confirmation email?

And the fact that their employees prepared a doc package based on nothing more than an assumption that I received and agreed to a confirmation email - with no way to prove it - speaks more to their poor business practices than it does to anything else.

You've got nothing more than an email you can't even prove I received, Kevin - if you think you can build a case on that, knock yourself out...

Two things I've learned about our legal system from personal experience:

1. Many attorneys talk a big game and weave wonderful legal theories, but results often fall far short of expectations - you never know how the case will be decided until you get to court; and
2. The court is not stupid.

Reply by Kevin/Ct on 1/12/09 5:03am
Msg #274207

Re: Au Contraire

You really go out of your way to be ridiculous ...don't you? Please educate yourself in the rules of evidence and legal procedure before you waste my time with another answer like this. Talking to you is like engaging in a battle of wits with an unarmed enemy.

Reply by MikeC/NY on 1/13/09 7:25pm
Msg #274401

Re: Au Contraire

Very nice, Kevin - when you can't come up with a response to a legitimate question, just attack and insult the other party. That really speaks volumes about you and your abilities.

Reply by Kevin/Ct on 1/15/09 6:06am
Msg #274525

Re: Au Contraire

There was no attack...simply an observation on your rather sarcastic and infantile post and an invitation for you to educate yourself before posting some of the opinions that you have voiced. I know whereof I speak because I have litigated these issues in collection matters over a 24 year period.

If you are genuinely interested in voicing an informed opinion you might want to consult The Restatement of Contract Law, your state's draft of the Uniform Commercial Code and several centuries of case law on the subject. If you were not aware of it... we have an English system of common law which has developed over the ceturies as well as statutory law.

If you wish to debate with me define your terms carefully and structure your argument in the more scholarly fashion of Sue Fischer in her post below. Leave out the cutsie remarks
(e.g. cha ching?). It dilutes your argument, and is distracting.

Reply by MikeC/NY on 1/15/09 10:30pm
Msg #274616

Re: Au Contraire

"There was no attack...simply an observation on your rather sarcastic and infantile post and an invitation for you to educate yourself before posting some of the opinions that you have voiced. "

No attack, Kevin? What do you call this:

"Talking to you is like engaging in a battle of wits with an unarmed enemy."

Wow - sure sounds like an attack to me... And then you go further and refer to my "sarcastic and infantile post," Do you have a different definition of "attack" than the rest of us do?

Oh, wait, maybe there's something in the Restatement of Contract Law that says you can do that when you don't know how to respond to legitimate questions that a second year law student might raise to block your evidence... I'll have to look that up....

Whatever, Kevin - you've shown your worth and your skill by resorting to an ad hominem attack. Either respond or don't respond, but don't attack me personally - it can only reflect badly on you and doesn't do anything to advance the discussion.

You don't want me to waste your time? Fine with me - I don't need you wasting my time either.

Reply by Kevin/Ct on 1/15/09 6:22am
Msg #274526

Re: Au Contraire

By the way if you check Sue Fischer's post below I think you will find explanations for most if not all of the issues contained in your post. She had similar concerns , but was able to express them in a more organized and erudite format. I really did not see any need to chew the cabbage twice.

Reply by Linda_H/FL on 1/10/09 10:58am
Msg #274114

So Kevin....tell me if I understand this correctly

You're saying if I receive an unsolicited e-mail from a company for a signing that I cannot accommodate because no one checked my availability first, I'm obliged to accept it anyway or I can be sued for breach of contract? Don't you need agreement on both sides to HAVE a contract to begin with? What basis would they have to sue?

Reply by Kevin/Ct on 1/10/09 11:17am
Msg #274117

Re: So Kevin....tell me if I understand this correctly

No that is not what I am saying. I am saying that your receipt of the email is an offer. It creates an obligation on your part to accept or reject the offer. Absent a rejection on your part the issue is one of whether silence can be construed to be an acceptance. The best response is to either formally accept or reject the offer.

Reply by Susan Fischer on 1/11/09 3:39am
Msg #274138

Kevin, couldn't one could make the case that while

sending a blind email to me, while it may be an offer, cannot be construed as being simultaneously accepted? What if I have my email settings to record and back up with an email 'ping,' that the original email was never opened? It is an expectation in the industry that confirmations be acknowledged. Same with emailed docs - communications are confirmed throughout the entire process of satisfaction.

What constitutes "receipt?" Without a responding confirmation within a reasonable amount of time from the offeree (me,) I would ask what made the offeror think I accepted the assignment? It is an industry standard that the notary acknowledge receipt of the offer, as then contact the borrower to introduce herself, confirm the time and place of the appointment, and then report back that the contact had been made within fairly immediate time constraints. There is plenty of evidence for that matter of course.

Where is the expectation that I am plugged into my home computer like a lifeline? Why would I be expected to utilize any and all availabe technology to 'avail' myself of an offer that may occasionally drift in without an initiating phone call to agree upon terms? Negotiation of terms is an industry standard as well.

Absent the facts of the OP, and instead, a simple unexpected "confirmation" in my email, I'm pretty sure there is no contract - because there is no meeting of the minds; no terms, no understanding of a time facor, not even an agreement of the place of the assignment, (what if I don't travel to Salem, even though the line is pretty short on the map?)

Isn't there's a case for the lack of negligence, too? Where is my duty to be the techno-nerd in Notaryland? Where is my duty to accept every incoming phone call, let alone every email? As a matter of fact, where's my duty to accept every offer that manages to get to my door?

Just asking.

Reply by Kevin/Ct on 1/11/09 10:24am
Msg #274148

Re: Kevin, couldn't one could make the case that while

These are arguments that you could make in a defense. However, there is no guarantee the trier of fact is going to give any weight to them.

1. Under certain circumstances silence can be construed as an acceptance in contract law. The court would look into such matters as prior course of business dealings between the parties and industry practices. While some SS/TC's require an email that affirms your acceptance and receipt of the confirmation. There are many that don't. They simply instruct you to contact the borroweer to set up a closing time. If the TC/lender prepares the edocs and sends them to you the rules of evidence permit the trier of fact (judge in a bench trial or jury in a jury trial) to draw a reasonable inference that there was an acceptance on your part.
Why would they prepare and send the edocs if they did not understand that you had accepted the assignment? By way of comparison the title abstractors receive title search orders from clients routinely. There is usually never a response required from the title abstractor other than his/her delivery of the finished title search.

2. What constitutes receipt? Interesting question. In Connecticut if a letter is properly addressed and properly posted...it is presumed to have been received by the recipient. All the plaintiff has to prove is that the letter was properly addressed and properly posted. The burden of proof of non-receipt then shifts to the recipient to prove a negative. His denial of receipt is not enough to rebut the presumption. I suppose an analogy could be made to email.

3. Insofar as technology is concerned ...most of us work with cell phones with text messaging capability. It is a simple matter of checking your emails either by cell phone or with a blackberry, then contacting the client to tell them whether or not you are available to close for them. It does not require a great deal of technical skill or expense. Otherwise it is a simple matter of notifying your clients that you are not available for some reason for a period of vacation as someone above mentioned , or simply putting a temporary block on your emails to let the sender know they were not delivered. It is not a matter of shutting down your business as someone else above complained. You are simply temporarily unavailable. As long as you continue to advertise you will continue to receice calls from clients.

4. Whether there has been a meeting of minds is a question for the trier of fact at trial. Do you really want that question left to it? You may be disappointed . Don't overlook the contract implied in fact that i mentioned above in which the conduct of the parties creates the contract coupled with circumstances by which silence could be construed as acceptance.

5. With respect to the issue of negligence it would come down to whether your conduct was reasonable under the circumstances. This is again an issue left to the trier of fact. The best you could hope for would be the presentation of a reasonable explanation of your conduct.

Reply by Susan Fischer on 1/11/09 12:24pm
Msg #274151

Hmm. Ok. Let me try this:

1. Silence. I find, and others can chime in, that the time and date of a signing is pre-determined prior to the securing a signing agent. True, often times it is open, but not for an indefinite time. "Why would they prepare and send edocs if they did not understand that there was an acceptance on my part?" Why, indeed. If the facts state that there is a history between the sending entity and the receiving notary of sending blind assignments, and the history demonstrates acceptances, that would be a stronger case. However, absent that established relationship, the expectation of a notary to "automatically" accept an assignment from unknown TC/SS, is a stretch.

2. The mailbox rule is well-settled. But, without a relationship, how is that applicable? If I don't know you, and you don't know me, and you send me an offer to complete a signing, and if say, the fee you promise to pay is $30 for an appointment tonight 10 PM 100 miles away from me - and I don't open my email for some reason - don't you take an awful lot for granted by assuming my silence is an acceptance? I see time for acceptance as a critical element here. Put another way, If you send me an offer to say, buy my car, which, is for sale, and I don't respond within a reasonable time, can you claim a breach on my part?

3. I don't text message, and expect that if one is sent, say, as an offer to accept an assignment by someone with whom I have no relationship, there is no basis for assuming my silence is an acceptance. Agreed, that auto blocking and other measures might be utilized, but there are so many variables with emails. Some people in rural areas don't even actually "see" emails for hours after they were "sent." (Even though the time stamp registers "sent" at a certain time.) Understanding the dire importance of serving borrowers, when time is of the essence, reliance on the silence of an unknown notary as "acceptance," when the initial offer is a blind email, seems like a huge risk by the offeror. No news is good news?

4. Using the $30, 100 mile "offer" above, personally, I could justify a claim that there was no meeting of the minds. No way, no how, not ever. Does a trier of fact have the freedom to dictate acceptable terms that bind me? True, I accept many offers to perform, but certainly not very offer. And if you send me an "offer" to do some work, and I have not agreed to the terms, my silence notwithstanding, where have our minds met? In order to imply a contract, if there is no relationship, how can an implication be "understood?"

5. Let's leave torts for another discussion. <grin>

Reply by Kevin/Ct on 1/12/09 5:41am
Msg #274208

Re: Hmm. Ok. Let me try this:

A very well thought out response, Sue.

1. The prior course of dealing between parties is one scenario that would give rise the concept of silence as an acceptance. There is also the matter of an industry standard. There is also the example of the title abstractors that I previously cited. There is also the argument of the conduct of the parties in a contract implied in fact. The facts of each case would determine whether or not silence was an acceptance. There is ample authority for that position ...such as the Restatement of Contract Law.

2. We are not talking about the mailbox rule. Your earlier question was "What constitutes receipt". I cited the rebutable presumption if an article is properly addressed and posted. There is no relationship required between the parties. The issue is the obligation created by the contents of the article and whether the recipient did in fact receive it. If the issue is receipt the burden of proof has been shifted to the recipient to prove non-receipt. The contents of the article and your response thereto would be subject to argument and inpterpretation by the trier of fact.

3. Yes, reliance on silence as an acceptance of an assignment is a huge risk for the offeror. None the less it would appear to be a business practice. Otherwise we would not have people in this forum complaining about it.

4. No, the trier of fact does not re-write contracts nor dictate the terms of a contract. However, it does sit as the judge of the conduct of the parties in determining their intent. Whether the 30 mile/$100.00 condition applies would depend upon whether you made it known as a condition of your service....possibly the timing at which you made it a condition of your service. While you may not feel that your condition has been met...the trier of fact may interpret the evidence differently.

Reply by Susan Fischer on 1/12/09 3:31pm
Msg #274264

Thanks for that, Kevin. Let's just agree that...it depends.

<laughter>

And thanks for the conversation. What a treat.

Reply by sue_pa on 1/10/09 9:05am
Msg #274105

I've gathered the following thoughts from these posts.

1. Those of you who work for services that price shop you can turn around and sue them when they pull an order because they've found someone cheaper.

2. Kevin thinks (not saying he's right or wrong) when we go on vacation (those who are sole proprietors with no one minding the shop while we're away) we should entirely shut down our business so that we not only lose the business we are contemplating losing because we are basking on the beach sipping rum drinks out of coconuts but that we will also lose business for the two weeks following our return ... because some unscrupulous/sloppy company may forward something to us that we know nothing about and we could potentially be liable for their $100,000 (or whatever) loss of a client.

3. Susan F was VERY lucky selling a house on a handshake. I bought a house a few years ago and knew the seller and he didn't want anything in writing but I insisted ... didn't need the contract but I felt better with it. By the way, I thought it was every state ... real estate contracts aren't permitted to be verbal, they must be written to be enforceable.

4. To those of you who actually sign signing service contracts, rather than worry so much about the noncompete clause everyone seems so concerned abuot all the time, why not read the paragraph where you absolve them of all responsibility for everything. One of these posts Kevin used the trickle down theory of suing everyone below you ... except the signing service probably will have a defense because few strike that paragraph.

5. Whoever started this hair brained idea of taking an order and then giving it back last minute and attempting to get the borrowers to complain so the signing service loses their client ... or whatever the scenario was ... is an idiot. How about you worry about yourself and work for clients that pay. If you get stuck by an SOX type it's partially your fault and certainly partially their fault. Sue them or move along.

Reply by sue_pa on 1/10/09 9:12am
Msg #274108

forgot

3. In my area, if you are from here and are dealing with someone from here, there are many who would and still do all sorts of business on a handshake. Personal knowledge and reference still mean something where I live ... if you are "a native".

Reply by docs1954CA on 1/10/09 12:11pm
Msg #274118

Sue, Sue, Sue why so mean?

If you read my post correctly, it was a thought, an idea only.Perhaps, in your beady little eyes, not a good one. A radical approach to deal with a company that cheats people. As I stated, I've never worked for them. I wouldn't do this to an innocent borrower. Excuse me for thinking outside the lines Sue.
You really need to take your medication, and wait for it to kick in before responding in your usual nasty manner.I see you do that a lot on this board.
Get off of your high horse Sue, and you just worry about yourself.

Kevin, thank you for your comments.

Reply by BrendaTx on 1/10/09 6:33pm
Msg #274127

Re: Sue, Sue, Sue--It was a dark and stormy night.

Men in ill-fitting black western suits and clip on ties come to your* home, drag you out and throw you into a car with no access to door handles.

You ride five bumpy miles to an unknown destination where you are shoved into a dark room where there's a naked 100 watt bulb is hanging down and it's shining in your face because they tie you to a chair facing it.

They leave and bolt the door behind them. But you are not alone.

sue_pa is there with a microphone. The volume is a little higher than you really want it to be. She speaks intelligently and with reason, albeit with sarcastic words. She states her opinion(s).

Then, someone steps out of the shadows. sue_pa hands the mike to CaliNotary who does likewise...except when he's done he says, "hit it" and an unseen music source blares while he sings a little karaoke...."These Boots Are Made for Walkin' " to be precise.

Once he is done and takes his bow, Becca steps up...more of the same....except Becca throws in an occasional "momo" and a "jackbag" or two.

Susan Fischer is on next; she gets something off her chest and then ends up with a friendly "Cheers!" whereupon she hands the microphone to Leon who says his piece, bows and then ends his monologue with "Good luck." He tells you to put your hands together for that pizza loving guy Bob/Chicago...who says, as usual, "You have a lot more of a chance getting paid if you take the job than if you didn't."

Your sick of it, but there's more...Dennis Broadbooks hasn't had his turn. You can be sure before he's done there WILL be a moment where starts a fist bump explosion with the other speakers while he leads the chant "ROCK CHALK JAYHAWKS!" I take my turn and once I get started, I never shut up....everyone joins in and it's chaos. "Momo, Jayhawks, jackbag, good luck, cheers....."

It's nothing you haven't heard before and you cannot escape the cacophony. You have to hear what they have to say, sing, and cheer because you don't have a choice....over and over and over again. It never stops.

Whew! What a relief that it's totally different here on NR. If you've been reading here for three days you already know what these people are going to say. You have a choice. You can skip their posts. You can avoid even logging in on the internetz if you don't want to. Or, you can log in to NR and tell 'em what you think!

We have a choice to read this forum...and we can always skip the people we don't want to read. I seem to have an addiction to reading everyone's posts but since it's not fattening or illegal, I'll keep on reading. I'll learn a good bit, too.

==============
*The words, "You" and "Your" used simply for purpose of example and not singling anyone out.

Reply by Pat/IL on 1/10/09 9:10pm
Msg #274133

Brenda, that was riviting! n/m

Reply by jba/fl on 1/10/09 10:10pm
Msg #274135

Yeah, Pat - I'm glassy eyed w/wonderment! n/m

Reply by sue_pa on 1/11/09 7:10am
Msg #274141

jeepers Brenda,

the first 3 paragraphs sound like my date last night ... wish I could have been there for the karaoke

Reply by BrendaTx on 1/11/09 7:16am
Msg #274142

Re: jeepers Brenda. . .the motivation for that was

all this fussing about your posts.

Seems like every day I read something negative about what you've said. All I know is when I was notary pup I learned a lot from you about the biz from reading your posts.

(The sarcasm, I already had. )

Reply by sue_pa on 1/11/09 7:22am
Msg #274143

Re: jeepers Brenda. . .the motivation for that was

I got that.

One of the things that amaze me is the ones that complain the loudest are out of business in a short time period and on to their next adventure, making a fortune selling Tastefully Simple, Pampered Chef, or whatever ... and I am still here, working fulltime, sole support of my household (knock on wood).

Reply by Dennis D Broadbooks on 1/11/09 3:00pm
Msg #274163

All I've Got to Say Is...

...Rock, Chalk, Jayhawks! Some things will never change. By the way, your advice to "skip the people we don't want to read" is MasterCard "priceless".

Reply by sue_pa on 1/11/09 7:28am
Msg #274144

Re: Sue, Sue, Sue why so mean?

When you are in business, if you want to offer solution/thought/idea to your peers for different issues, thinking outside the lines should be constructive, not completely unreasonable and unethical. From the responses, it appears many took it to be that you seriously felt this is okay.

If someone wants to offer suggestions that just make us feel better but are of no actual use (putting sugar in their gas tank, having Bob/Chicago break their knee caps, etc) then a smiley face or something of the sort should be inserted.

Spring flowers and little lady bugs drifting about to make this seem less harsh ... since yuor little feelings appear to be hurt so easily.

Reply by docs1954CA on 1/11/09 1:41pm
Msg #274161

Re: Sue, No hurt feeling.... n/m

Reply by Susan Fischer on 1/10/09 7:48pm
Msg #274129

You're right, Sue, I was lucky he really intended to buy the

house, and really had the cash, and actually showed up at the appointed hour to sign the paperwork (firnished by mutual friend, real estate guy and title company.)

Otherwise, I probably could not have done diddly squat about it.

Cheers!

(passes microphone)