Posted by Linda_H/FL on 3/20/09 4:58pm
Msg #281505

Question of the Day...just got this call..

Girl calls - has POA for husband in Navy and is out at sea - need to close on loan for house - $3,500 deposit in jeopardy...lender does not like general POA she has even though it does include "real estate transactions" - they want "specific" POA....and they want the original..

Question: Can an attorney-in-fact pursuant to a general POA execute ANOTHER Specific POA on behalf of the same principal...

Reply by Lee/AR on 3/20/09 5:02pm
Msg #281506

I really don't know, but totally doubt it. If I were her, I'd have the attorney who drafted the POA give the Lender a 'serious' call.

Reply by MikeC/NY on 3/20/09 5:32pm
Msg #281509

"Question: Can an attorney-in-fact pursuant to a general POA execute ANOTHER Specific POA on behalf of the same principal..."

Doesn't sound kosher to me, even though what they're asking for in the specific POA is already covered by the general one.

What we think doesn't amount to anything - she needs an actual legal opinion on this one...

Reply by Linda_H/FL on 3/20/09 5:36pm
Msg #281510

Well, she wanted me to notarize the specific POA

I told her that as long as she adequately identified herself to me I could notarize her signature until I was blue in the face - her problem was will the lender or mortgage company accept it - she said she's been calling all over trying to find someone to help her with this...they got burned by a mortgage company once on this deal and now might lose their deposit because of this mess.

Reply by trnsa_IL on 3/20/09 5:56pm
Msg #281515

I had a similar situation yesterday. Husband was in WA

closing on a house with POA for the wife. The general POA was not enough, they wanted a specific POA signed. However the wife was here in IL not out to sea. I would be interested to know the answer to this one.

Reply by MW/VA on 3/20/09 5:57pm
Msg #281516

I'm in a military area, so this POA is a common thing. The problem is that the lenders don't like it & sometimes won't accept it--really!! -- what's the point of the POA?

Reply by Philip Johnson on 3/20/09 6:21pm
Msg #281518

A stern call from her JAG officer should set this right. n/m

Reply by PAW on 3/20/09 7:29pm
Msg #281527

Not if the principal is out to sea! n/m

Reply by Pat/IL on 3/20/09 7:36pm
Msg #281529

Good Question.

I have known lenders to ease up on the requirement for a specific POA on a couple of extreme occasions. This sounds like an extreme occasion. Another potential hurdle, though, is getting the title underwriter to waive the requirement. My company acts as an agent for two major underwriters and both require a specific POA - although they may relent also, with good reason.

It may be more difficult in that the wife does not have the original POA. In Illinois, the POA would be recorded with the mortgage. I don't know of any recorders/clerks that would record an uncertified copy. If there is a way for the wife to get a certified copy of the POA, maybe there is hope.

As far as the attorney-in-fact executing a specific POA on behalf of the principal, I'm with all of the others. You have to admire the creative thinking that went into that one, but I don't see it happening. Could be wrong, wouldn't be the first time.

Reply by Linda_H/FL on 3/20/09 7:43pm
Msg #281530

Pat, she does have the original general POA..that's not

one of the problems (thankfully)....I can't believe the lender won't accept the POA since the guy's in the military..and IME, CT was the same as IL - POA recorded with mortgage...not sure if they do that in FL or not..

This poor girl was getting so desperate to find someone and not lose her deposit (IF, that is, I wasn't being snowed)...I felt so bad for her...

Guess my hindsight thoughts here are it's not up to us to decide if the document is enforceable, and in FL we don't even need to see the POA to verify the AIF's authority - we just need to identify and notarize...I just couldn't see her driving over 100 miles to get the thing notarized (she's that far away from me) only to find out it's worthless.

Reply by Pat/IL on 3/20/09 7:58pm
Msg #281536

Re: Pat, she does have the original general POA..that's not

Apologies Linda, I misunderstood about the original, my bad. Do the parties in real estate transactions use attorneys in Florida? This might just be a good opportunity to make a lawyer earn his fee. Doesn't it seem odd that she is willing to travel so far for a notarization? I mean, I'm sure your good...but if you're THAT good, I bow to your talent.

Reply by Linda_H/FL on 3/20/09 8:02pm
Msg #281539

ROFL...thank you Pat....not a case of being good...

She's calling all over - she found my website I guess...

No need to bow, Sir..

Paul would have to answer about attorney involvement in real estate transactions in FL - the purchases I've seen here have all been in title offices - not sure if attorneys get involved that much...my house purchase - no attorneys, just the title company.

Reply by PAW on 3/20/09 8:14pm
Msg #281544

Re: ROFL...thank you Pat....not a case of being good...

Most non-commercial purchase closing I've done were completed by title staff in title offices. However, I've also done quite a few with attorneys doing the closings, and I simply acted as the notary public. On commercial deals, every one was handled by attorneys, usually in one of the attorney's office, but some have been done in the real estate office.

Supposedly, every title closing is reviewed by an attorney. Whether or not that actually happens is anybody's guess.

Reply by PAW on 3/20/09 8:06pm
Msg #281540

Re: Pat, she does have the original general POA..that's not

I have completed closings where the spouse had a general POA from her serviceman husband. The lender did accept it, since the husband was not able to be contacted.

According to Jeff Marks (an attorney practicing in Jax), lenders are required in FL to obtain an original POA prior to the execution of a mortgage. To quote Mr. Marks:

Must the original power of attorney be presented for use? - Yes. For real estate transactions, the original power of attorney must be given to the closing attorney so that it can be recorded in the public records. After recording, the original will be returned to the attorney-in-fact.
[end quote]

Further, and possibly unique to Florida, a power of attorney must be signed with the same formality as the document for which it is to be used. If the attorney-in-fact is signing a deed on behalf of the principal, then the power of attorney must have two witnesses and be notarized. There is one exception to this rule. A valid military power of attorney, using the form provided for in the federal statutes, does not have to be witnessed. If the attorney-in-fact wants to use the power of attorney for a buyer/borrower, then it is necessary that the lender approve the form of the power of attorney in advance of the closing.

Reply by PAW on 3/20/09 7:56pm
Msg #281535

Not a legal opinion, but my vote is no, but it really would be up to the courts to decide if there existed an implied grant of power to make contracts other than what was specifically stated in the Power of Attorney. There are many things an attorney in fact cannot do, such as change the principal's will or codicil, or vote on behalf of the principal, or swear to facts only known to the principal. I couldn't find any case law or opinions specifically addressing whether or not an AIF can execute another POA on behalf of the principal.

Reply by Linda_H/FL on 3/20/09 7:59pm
Msg #281537

Neither could I, Paul....I found the info you have...

also found that an AIF can do anything that the principal can do (aside from the exceptions you listed)....broadly interpreted, if the principal can execute a general POA, the AIF should be able to execute a specific poa on the principal's behalf.....BROADLY interpreted....

I hope she gets this mess straightened out...

Reply by PAW on 3/20/09 8:09pm
Msg #281541

Re: Neither could I, Paul....I found the info you have...

Ah, I just got the answer ... No. The Attorney in Fact cannot execute a POA on behalf of the principal, naming themselves as the Attorney in Fact. He didn't know if the AIF could execute a POA naming a third party as the AIF to the specific POA. I don't think the lender would accept it anyway, even if it could be done.

Reply by Linda_H/FL on 3/20/09 8:12pm
Msg #281543

Bow to this guy, Pat,...:)....thanks so much, Paul..:) n/m

Reply by Pat/IL on 3/20/09 8:28pm
Msg #281546

Re: Bow to this guy, Pat,...:)....thanks so much, Paul..:)

Okay, I'm bowing. Why do the rest of us even bother? Seriously, Paul's a really smart and helpful guy and I give him a ton of credit and respect. But, my grammar is just as good as his any day.

Reply by Linda_H/FL on 3/20/09 8:30pm
Msg #281547

Re: Bow to this guy, Pat,...:)....thanks so much, Paul..:)

<<<bowing to Pat>>>>

<G>

Reply by Pat/IL on 3/20/09 8:11pm
Msg #281542

Re: Neither could I, Paul....I found the info you have...

I think that an AIF executing a POA on behalf of the principal may also be construed as altering the authority granted by the principal in the first place. I don't see this as granting additional authority to one's self, which I'm sure would be disallowed. But, being the nerd that I am, I am now really interested in the question.

Reply by PAW on 3/20/09 8:50pm
Msg #281550

GA/Atty, want to weigh in on the question?

Interesting scenario.

Reply by MW/VA on 3/20/09 9:21pm
Msg #281555

I still don't get why they are demanding a specific POA. These POA are prepared by people on the bases, and are used for real estate transactions all the time. It is very common here, where we have the largest naval base in the world. I can also understand the concern, because you hear horror stories all the time that someone comes home from deployment & everything is gone--house, furniture, etc.

Reply by Maureen_nh on 3/20/09 9:23pm
Msg #281557

Is it possible that husband could sign specific POA and have it faxed/e-mailed to lender. Communications onboard most ships are very good and any officer could notarize.

Reply by Linda_H/FL on 3/20/09 9:43pm
Msg #281559

Maureen, mortgage co/lender wants original

specific POA - faxed is not acceptable - and mail out and in, she said, is a 30-day process...not sure where he is..

Reply by Linda_H/FL on 3/20/09 9:45pm
Msg #281560

Phooey..posted too quick

I'm confused as to how this came up on a Friday night....when business is pretty much done for the week....she sounded like the closing was imminent but was dead if she didn't get this done...

Reply by Maureen_nh on 3/20/09 9:47pm
Msg #281561

Re: PS

If they are messing with a military family and cause her to lose her deposit for a quibble they might be looking for trouble. I wonder why they didn't go with Navy Fed.

Reply by Linda_H/FL on 3/20/09 9:49pm
Msg #281562

Re: PS

No idea, Maureen - I don't even know who they went through - but it sounds like someone dropped the ball somewhere - she told me her mortgage guy told her the POA she had was okay - now the lender says no - right when they HAVE to close...<<shrug>>.

Reply by Maureen_nh on 3/20/09 9:54pm
Msg #281563

Re: PS

I am getting the feeling that something isn't quite right here and I haven't taken my sneakers off yet.

Reply by sue_pa on 3/21/09 7:24am
Msg #281580

Someone is full of $h!t. No one needs to drive 100 miles to find a notary. If she is having a real estate closing, there will be one there.

Linda, you are nicer than I am. I just tell these people I cannot help them. I never spend any effort trying to figure out what they need ... "I just stamp stuff."

Reply by jba/fl on 3/21/09 8:43am
Msg #281589

I am reminded of the old salesman's adage: Buyer's are liars.

Reply by NCLisa on 3/21/09 8:46am
Msg #281590

If the POA is a military POA, one that was provided by the military and notarized by the military, than the lender has to accept it, and she needs to remind them of that fact.

Reply by Linda_H/FL on 3/21/09 8:50am
Msg #281592

Re: Question of the Day...just got this call...Lisa

If she was telling me the truth, they knew and HAVE known since day one that she had a POA for her husband who was "out at sea" - she said her mortgage guy told her the POA she had was okay and now the mortgage company/lender won't accept it...they want the specific POA...

As I said...IF she was telling me the truth - she did sound very sincere (young too) and very much at the end of her rope with the whole process...

Reply by NCLisa on 3/21/09 1:14pm
Msg #281609

Title I0, United States Code, Section 1044b

(a) Instruments To Be Given Legal Effect Without Regard to State Law.— A military power of attorney—
(1) is exempt from any requirement of form, substance, formality, or recording that is provided for powers of attorney under the laws of a State; and
(2) shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the State concerned.
(b) Military Power of Attorney.— For purposes of this section, a military power of attorney is any general or special power of attorney that is notarized in accordance with section 1044a http://www4.law.cornell.edu/uscode/uscode10/usc_sec_10_00001044---a000-.html of this title or other applicable State or Federal law.
(c) Statement To Be Included.—
(1) Under regulations prescribed by the Secretary concerned, each military power of attorney shall contain a statement that sets forth the provisions of subsection (a).
(2) Paragraph (1) shall not be construed to make inapplicable the provisions of subsection (a) to a military power of attorney that does not include a statement described in that paragraph.
(d) State Defined.— In this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and a possession of the United States.

Reply by Linda_H/FL on 3/21/09 1:53pm
Msg #281614

Wish her mortgage company could see this -

she wouldn't be in the mess she's in...

Reply by PAW on 3/21/09 9:52am
Msg #281598

Not all POAs provided by the military are "federal" POAs. To force 'acceptance', the POA must be prepared pursuant to Title I0, United States Code, Section 1044b and executed by a person authorized to receive legal assistance from the military services. Federal law exempts this power of attorney from any requirement of form, substance, formality, or recording that is prescribed for powers of attorney under the laws of a state, the District of Columbia, or a territory, commonwealth, or possession of the United States. Federal law specifies that this power of attorney shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the jurisdiction where it is presented.