Posted by Camellia Preciado on 7/19/10 11:14am
Msg #345528

DEED OF TRUST SITUATION

Over the weekend I got a call from a signing company that hired me (as an independent Contractor ) stating that the acknowledgment part of a Deed of trust I notarized a month ago was accidentally cut in two by an employee of theirs and that the recorder’s office would not record the document. The signing company had sent me an email with a copy of the first and acknowledgement page of the Deed of Trust, they requested that I send them a loose certificate back in replacement of the damaged one.
After researching this a little bit, I found out that I would need the original Deed of Trust sent to me and then I could attach a loose certificate to the original Deed of Trust.
Also when I called the Signing Company and told them that I needed the original Document sent to me they insisted that this was not necessary and that they were afraid that the Deed of Trust would get lost. Only after I told them that I would not send a loose certificate by itself, did they give in and agreed to send me the original.
My question is, should the cut in half original certificate be kept in this deed of Trust or should I just attach my new one in replacement of the old. What do you think? And have you ever come across a situation like this and if so was this the way you corrected it?
Thanks for your advice.

Reply by Marian_in_CA on 7/19/10 11:26am
Msg #345530

Frankly... I would do none of the above. The certificate was destroyed and it wasn't your fault.

If they want a new certificate, it's a new notarization all over again and they need to pay you for it.... and to me, that means a trip back to the people who signed it to begin with, at somebody else's expense. Because it's a new notarization, you need the borrower's signature in your journal again. And you will need the original document or have them sign a new one.

Reply by C. Rivera Chicago Notary Services on 7/19/10 11:57am
Msg #345532

If the damaged cert makes the deed of trust invalid, and a new one needs to be signed by the BO, then I'd most def charge a return trip fee.

If it doesn't and a replacement is all that is needed, then I'd just send them a loose ack with the original deed they sent you, but take out the damaged one to keep on file w/ that closing.

Reply by Marian_in_CA on 7/19/10 12:10pm
Msg #345534

I disagree about the replacement certificate. The certificate was destroyed by a third party... it's not the notary's fault. That was still a valid notarization.

If they need a new certificate, it's a new notarization, IMO... and requires the signer's signature in the journal, as usual.

Reply by MikeC/NY on 7/19/10 3:44pm
Msg #345585

I agree with Marian - there's no replacement, if a new cert is needed then the BO has to appear before you with the original DOT so you can take their acknowledgment.

The acknowledgment says they appeared before you on this date - that's the day you're signing and stamping it. If they don't appear before you on that day and you say they did, or if you fill in the date they actually appeared before you originally (which would be backdating), aren't you committing a crime?

Reply by utahnotary on 7/19/10 12:18pm
Msg #345535

hi- I Record deeds all day long .. electronically mostly- sometimes the document will get rejected for many reasons- if it is rejected before it was actually recorded they need only your acknowledgement. They sent you a copy of the document so you are aware of the situation – make sure you use an acknowledgement that has information what the acknowledgement is for - for example deed dated XX-XX-2010 – if they send you the original deed and for whatever reason it is lost or not return – it becomes a HUGE problem-

Reply by GOLDGIRL/CA on 7/19/10 12:18pm
Msg #345536

As far as I know, there's no such thing as a "replacement" ack, no matter how it was damaged/lost, etc. It's a whole, new signing/notarization process. Even though you can send a new loose-leaf ack back attached to the original document (as you already indicated), you cannot date it the original signing date. You need to return to the signers, start all over witrh the ID and tprint, and date your ack for that day. This, of course, will throw everybody in a huge tizz cos it could affect the RTC, etc. but, again, that's not your responsibility. Plus, you'd be asking for a return fee. However, I am sure that many CA notaries do this all the time - on the basis that they know they already signed the borrowers and just cos some scissor-happy SS employee wrecked the original certificate, well it's not worth the hassle, so what the heck. As far as what you do with the cut up ack, that's not even an issue in this case, IMO. But if they actually send it back to you, just return it.

Reply by Tess on 7/19/10 12:52pm
Msg #345539

The best practice is: To go back to the signer, have them resign, and date it for the new date.

What I also do then, is to write on the new acknowledgement that this new acknowledgement is a replacement for the damaged acknowledgement for _______dated ___ by ____. This way, anyone who looks up the deed will then know why the date is different from what the original signing date was, and also states why the recording was held up.

Reply by NCNotary on 7/19/10 1:26pm
Msg #345544

Just re-read the complete California acknowledgment and can find no place that it states the date of the ack. It specifically say on such and such a date this person appeared before you and executed the document. The only date is the original date. This date must agree with your journal.

Reply by Tess on 7/19/10 1:36pm
Msg #345545

Exactly, you will have two journal entries, you are just referring back to the original signing date.

Reply by PAW on 7/19/10 1:49pm
Msg #345547

No need to have the signers re-sign the instrument. The certificate is an acknowledgment wherein the signers simply acknowledge that they executed the document. I agree that you should indicate on the certificate that the acknowledgment is a replacement and the date of the original acknowledgment, and use the current date for the new acknowledgment.

In Florida, that's the only way we could do it, since we are prohibited from "fixing" any previous notarial act, thus it would be a new notarization. Since you can't 'fix' the previous acknowledgment, imo, even in CA you would have to do a new one, including a new entry in your journal.

Reply by Tess on 7/19/10 2:05pm
Msg #345550

I guess it comes down to your SOS guidelines and your "interpretations"of them as to having them re-sign or not.

But as you stated, notations on why there is a "new" acknowledgement attached, is one way to "fix" a recordable document.

Reply by PAW on 7/19/10 2:14pm
Msg #345552

>>> I guess it comes down to your SOS guidelines and your "interpretations"of them as to having them re-sign or not. <<<

I'm not aware of any state that requires a document be signed in the presence of a notary for an acknowledgment. The signer states that the signature is theirs, no matter if it is signed in front of the notary or 20 years prior to appearing before the notary. If this is not correct, please enlighten me.

Reply by Tess on 7/19/10 2:27pm
Msg #345555

True, but in PA they must be with you in person, to acknowledge that it is their signature. Since you are notarizing their signature AGAIN, they must be” AT LEAST” (technicality of the resign aside, although I would still have them resign a second time) PRESENT.

Reply by Tess on 7/19/10 2:47pm
Msg #345557

Re: Paw is right, sorry about not being clear with the

resign (I meant to go back out) and actually having them resign the doc, as we all know acknowledgments do not need to be signed in front of us, just acknowledged that that is their signature.

Reply by Marian_in_CA on 7/19/10 2:54pm
Msg #345558

Re: Paw is right, sorry about not being clear with the

You're both right, really.

It sucks for the signer... but it's a whole new notarization, and since the OP is in California... then that means the signer needs to sign and fingerprint the notary's journal all over again. (Fingerprint is required in CA for a deed of trust)

Reply by C. Rivera Chicago Notary Services on 7/19/10 3:58pm
Msg #345594

well, your right PAW as usual - In IL for Acknowledgments

"The signer need not sign in the notary’s presence but must personally appear before the notary and state that the signature on the document is his or hers."

Reply by Hugh Nations Signing Agents of Austin on 7/19/10 10:53pm
Msg #345661

Query

What would be required if a borrower acknowledged a signature, but for some reason -- the signing agent had a TIA and went to the ER PDQ, the borrower's wife called to say she was leaving him to run off to Vegas with a plumber, a falling satellite trashed the agent's car -- the acknowledgment wasn't completed?

Is it the sense of the responders that the acknowledgment, when it is finally done two days later, would have to bear the date that the SA signed it? That the borrower would have to appear again and acknowledge the signature? Can the agent just do an acknowledgment for the date when the borrower previously acknowledged the signature?

Or is this whole question an issue just because the original certification was destroyed?

Reply by MikeC/NY on 7/19/10 3:52pm
Msg #345590

They don; have to sign again...

.. unless your state law requires that an acknowledgment be signed in front of the notary.

They are simply acknowledging to you that yes, it is their signature on the document. I'm sure I'm not the only one who has taken an acknowledgment a year or more after the document was signed.

Reply by MikeC/NY on 7/19/10 3:54pm
Msg #345593

Should be "don't" n/m

Reply by Stephanie_CA on 7/19/10 3:38pm
Msg #345582

Re: DEED OF TRUST....In my opinion

Do not send a loosr certificate.
Request the original DOT to be forwarded directly to you.
This is a new notarization.
Since you have the information in your journal to prove you previously notarized the specific DOT, I personally would complete a new California All-Purpose Acknowledgment, attach and return.
NOTING in my Journal that this notarization is a replacement.
Original date of notarization, details of the DOT: where property is located, who is property being deeded from and who is it being deeded to.
Additionally, on the "optional" section at the botom of the Notarial Certificate, I would be sure to fill it out in detail:
Title or Type of Document:
DOT replacement Notarial Certificate.
Return via Certified USPS Mail.

Reply by Marian_in_CA on 7/19/10 3:47pm
Msg #345589

Re: DEED OF TRUST....In my opinion

No way... if it's a new notarial act, you HAVE to get the signer's signature and thumbprint in your journal.

Reply by Stephanie_CA on 7/19/10 4:42pm
Msg #345611

Re: DEED OF TRUST....In my opinion

You are correct Marian.
There is no way to fix it; a new notarial certificate must be completed by Notary Public, as a replacement.
Thank you.
I typed that up so fast.
Misspoke - mistyped.
Again - thank you.

Reply by GOLDGIRL/CA on 7/19/10 4:48pm
Msg #345615

Marian is correct

Again, there is no such thing as a replacement acknowledgment - at least in CA. The old ack is kapoot, apparently. Doesn't matter the reason. The lender needs to provide another DT, and the notary needs to start all over and date for the day the people LAST appeared before him/her to sign. If the lender provides the original signature page, the notary can ask the borrowers if that is their signatures and then execute an ack dated the day they affirmed that they had already signed.

Reply by MikeC/NY on 7/19/10 10:19pm
Msg #345649

Re: Marian is correct

"If the lender provides the original signature page, the notary can ask the borrowers if that is their signatures and then execute an ack dated the day they affirmed that they had already signed."

If they're appearing before you today to acknowledge that they signed the doc 3 months ago, you can backdate the acknowledgment to the date they actually signed?? Are you sure about this?

Reply by GOLDGIRL/CA on 7/19/10 10:37pm
Msg #345652

Guess I didn't word that very well!

Sorry, MikeC/NY: Let me try again. If the notary took back the original signed page to the borrower and the borrower said, yes, that's my signature, then the notary would fill out a new ack. The new ack would be dated for the day the borrower said, yes, that's my signature - NOT for the day the borrower originally signed it. Not sure I worded this any better this time... but basically, CA law says we have to start all over if there is an ack snafu. We just can't issue a replacement ack with a previous date. We have to go back to the borrowers, get them all ID'd and t-printed again and then have them sign and date all over again. It's like the first signing never even took place. However, if by chance the lender sent the notary the actual signature page of the deed, the notary could ask the borrower if that was their signature, the borrower would say yes; the notary would then fill out a new ack, dated for that day - not the day the deed was originally signed, bringing me back the square one. So tell me if this is any clearer ... thanks!

Reply by MikeC/NY on 7/19/10 11:39pm
Msg #345669

Got it - just wanted to make sure I understood you... n/m