Posted by Ted_MI on 11/15/04 11:25am
Msg #11344

Re: witnesses - am confused

Am doing a WAMU (Washington Mutual) HELOC signing. There is the following info about witnesses contained in the signing service's instructions:


- Witness requirements : States requiring 2-witnesses (and the notary CAN be one of the witnesses) include - CT, DE, FL, PA, SC, VT. 1 witness req'd and notary cannot be the witness for State of GA. 2 witnesses req'd and notary cannot be a witness for State of LA. 1 witness req'd and notary can be witness ONLY for notes for State of MA.


Now I had read that one of the major reasons that the mobile loan signer business had developed was a change in the UCC about two or three years ago eliminating the need for the presence of two witnesses (granted that this was from something written by Victoria Ring and I appreciate that many of you have issues with her writings). From my legal days I recollect that the UCC has a pretty broad reach (admittedly with the conceivable exception of Louisiana given their napoleonic code background).

So how do I reconcile this? Anybody know? TIA

Reply by Roger/OH on 11/15/04 11:55am
Msg #11345

Re: witnesses - am confused

Victoria Ring is from Ohio, and Ohio did indeed eliminate their witness requirement a few years ago. Some other states, however, still have their own requirements that you need to abide by. Some LENDERS may still require require a witness or two even in states that don't madate them.

Reply by PAW Notary Services on 11/15/04 12:01pm
Msg #11346

Re: witnesses - am confused

Witness requirements are dictated by the states in their property laws. WaMu is almost correct in their listing.

DE is an attorney only state, so it's a moot point for us.
FL only requires witnesses on deeds that convey property
PA does not require witnesses for deeds
MA does not require NOTES to be witnessed for MA property.

However WaMu does often require that the notary witness things that states do not necessarily require to be witnessed.

This is what I have compiled over the years as "requirements" for each of the 6 states that still require witnesses:

2004 State Witness Requirements
-------------------------------
CT - 2 witnesses, one can be the notary
FL - 2 witnesses, one can be the notary - DEEDS OF CONVEYANCE ONLY, not mortgages
GA - 2 witnesses, one MUST be the notary
LA - 2 witnesses, CANNOT be the notary
SC - 2 witnesses, one can be the notary
VT - 2 witnesses, one MUST be the notary

NOTES:
1) FL - Mortgages DO NOT require witnesses, DEEDS (QuitClaim, Warranty, etc.) do
2) MI - witnesses are no longer required
3) Lenders may require witnesses, even though there is no state requirement.

Reply by Michael/CA on 11/15/04 4:21pm
Msg #11362

Paul - A different question

I signed a loan here in California for a property in Georgia. The closing agent considered this a "mail away closing" and therefore required witnesses according to Georgia law.

My question is this - what is the criteria for determining witnessess requirements? Is it the state in which the property resides or is it the location in which the signing takes place? If I had been in Georgia signing docs for a California property would witnesses have been required?

The same question can be asked of attorney requirements - is it the location of the signing or the subject property?

Reply by PAW Notary Services on 11/15/04 6:15pm
Msg #11367

Re: Paul - A different question

>>>what is the criteria for determining witnessess requirements?<<<

For other than notary law requirements (POA's, signing by mark, etc.), witness requirements for property is usually found in the property conveyance or recording laws of the state in which the property is located (recorded). Therefore, to simply answer your question, where the property is determines the witness requirements.

>>>same question can be asked of attorney requirements - is it the location of the signing or the subject property?<<<

The determination of the attorney requirements is based on where the signing is taking place, as the laws of some states consider the presentation of loan and/or real estate title documents the practice of law.

>>>If I had been in Georgia signing docs for a California property would witnesses have been required?<<<

If you were in GA, you wouldn't be able to do the signing, since GA now an "attorney-only" state. Prior to that, when NSA's performed the signings, witnesses would not be needed for California property, since CA does not require witnesses on the deed of trust for it to be recorded.

Here in FL, we have quite a few "snowbirds" from many states, some of which are witness states, such as GA. So, whenever we sign for GA property, I insure there is a witness (other than the notary) available. However, when signing for CA property, I don't need any witnesses for the deed, even though FL requires witnesses on deeds. Again, this is because the witness requirements are based on where the document will be recorded (where the property is located), not where the signing takes place.

Reply by Michael/CA on 11/15/04 8:08pm
Msg #11381

Thank you Paul n/m

Reply by Julie-Mi on 11/16/04 6:40am
Msg #11409

Re: Paul - A different question

Michigan no witnesses
CT requires two witnessess.

If I was on vaction in CT, and did my Michigan refi in CT and no witnesses were present, Michigan would not accept the document for recording. MI has a law that states they will accept documents for recording purposes based on the requirements of the state where the doc was executed. Even though MI no longer requires witnesses, the MI recorder can reject my documents because it did not comply with CT's requirement.

Reply by Dennis D Broadbooks on 11/16/04 8:34am
Msg #11413

You've Pointed Out a Dilemma...

...we all face as signing agents...just how much SHOULD we know? There are some who maintain we should have as much knowledge about other state's laws regarding real estate transactions as we do about our own & others who say we should limit ourselves by simply following the written instructions given to us by the company we're contracted with. I'd fall in the middle ground of that debate as I can see merit to both sides. First of all there's absolutely no way anyone can learn all there is to know about real estate law in all 50 states. It's not possible to learn with absolute certainty your own state's laws. On the other hand if we can be in a position to assist a borrower complete their loan due to our knowledge of real estate law & make the proper authorities aware of an oversight in a document package, then we're worth our weight in gold (whether the signing companies realize it or not!). It's a "yin & yang" world out there!

Reply by PAW Notary Services on 11/16/04 9:46am
Msg #11417

Re: Paul - A different question

Julie, with all due respect, I believe you are mistaken. I asked the Recorder of Deeds in Oakland County this very question, since Florida does require 2 witnesses on deeds. This is the response I received:
-------------------------------------------------------------------------------------------------------
Paul - Michigan does not require witnesses and because the document will be
recorded here, we do not require them even though the deed is being executed
in Florida.


Laura Thierbach
Oakland County Register of Deeds
---------------------------------------------------------------------------------------------------------

I have done many Michigan property closings here in Florida (snowbirds) and never have I needed any witnesses, even though Florida does require them (on deeds).

So, my take on this would be that even if the signing of MI property took place in CT, witnesses would not be required for the deed to record in Michigan.

Reply by Tk-MI on 11/17/04 6:52am
Msg #11483

Paul is correct about MI

Paul is correct about MI.
You have to go by the State Laws where it will be registered.
I think sometimes people are trying to put their own interruptation of the laws
into the mix.

Reply by Julie-MI on 11/17/04 8:03am
Msg #11491

He is not necessarily correct.

I spoke with my former co-worker in my county and gave the CT senario.

It will be rejected in my county per the register of deeds office if it does not have two witnesses per CT's requirement.

I worked there from 1986 to 1995 and the policy then was the instrument had to conform to the state the docs were signed in. At that time Michigan was a two witness state. If the docs were signed in a non-witness state, we HAD to accept the doc for recording. When non-witnessed docs came across my desk, it was always a red flag and I had to consult with my 50 state recording/notary requirement list to see it it passed that states laws.

The bottom line is this:

It is not the responsbility of a notary to know other states requirements. If a witness or two are required, it is up to the company to inform the notary.

If the instructions are not provided and witnesses are required, the closer should be paid for two trips.

We can debate, call other states that we don't live in to have the last word, but the bottom line is it is not our job, unless we want to go above and beyond, to get this right. I have 3 high paying title companies I would go the extra mile for. The rest can pay me for a second trip.

Reply by Tk-MI on 11/17/04 8:24am
Msg #11494

Re: He is not necessarily correct.

Well, we could debate this but we obviously have two different opinions.
Which County do you live in? I would like to speak to these people at your county.

Reply by Tk-MI on 11/17/04 8:37am
Msg #11495

Never Mind

Julie I will call your County. I will also check with the SOS.

Reply by julie-=mi on 11/17/04 12:10pm
Msg #11508

Re: Never Mind

tk, the sos has nothing to do with register of deeds witness requirements.

I spoke with paul regarding my conversations with the following:

Macomb county

St. Clair county

Oakland County

and Lapeer county

my question was to the folks answer the phone was this:

I'm currently in Ct but am refinancing my property in Michigan. I KNOW michigan does not require witnesses, but CT does. Do my recordable documents need witnesses? The response was yes from all four. Additionally, I called a title company's legal department and they concurred with the county recorders.

Reply by Eatha/PA on 11/17/04 8:43am
Msg #11496

Re: witnesses - VT changed 11/01/04?

I read somewhere that as of Nov. 1, Vermont no longer has a witness requirement - can you verify?

Reply by Julie-MI on 11/15/04 12:42pm
Msg #11350

It's a Michigan thing not a UCC thing trust me on this, Ted

Effective March 5, 2002, the state of Michigan does not require witnesses on recordable instruments. You can find this in the MCL on-line.

Disregard the witness part--I've closed these WAMU's recently.

Some mobile closers in MI, will witness anyway as it "does not hurt anything." But, as a former Register of Deeds employee, it may. This sends a red flag to the person proofing the doc to make sure it complies with Michigan recording requirements. Additionally, if you decide to be "helpful" and don't print your same under your signature as a witness, the recorder's office may reject the doc.

Reply by Ted_MI on 11/16/04 12:48pm
Msg #11431

Re: It's a Michigan thing not a UCC thing trust me on this, Ted

Hi Julie,

While I was indeed aware that Michigan was not a witness state, I appreciate all the particulars you have provided. I stand enlightened! Thanks.