Posted by BrendaTx on 12/7/05 7:39pm
Msg #81049

POAs and Jurats - Nebulous rules in Tx

I had a signing last week where Mr is out of town and Mrs has a POA.

I get the edocs and there are a ton of jurats. And, we all know that we cannot execute jurats where the signer's attorney-in-fact signed the document.

About the time the docs arrived, I got a call from the LO. While I had him on the phone I mentioned it to him and told him I was really not comfortable with the jurats because they don't work with a POA.. (Obviously, it's the first time I have been faced with the jurat problem in two years. In the past I was told to attach an ack and it worked in that case...however I cannot tell them what to pick, or that I know the law and their lawyers do not.) I had already talked to the SS and told them that the Jurats might be a problem so could they please find out if Acks should be substituted. No. No. No. Must be jurats.

That's why I told the lender when he called...so he could be ready to tell me to attach another type of certificate. I expected SS to have to call him back because I am going to get someone at the SOS to give me their name and who they can talk to regarding this. I was sure the SOS would say exactly what I had said.

Anyhow, I called the SOS and got the notary unit.

Hi, I have to ...blah, blah, blah... I need the law or a rule that says I cannot properly do that by our laws.I>
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Yes. You can do it. The jurat is just a different certificate but it is the same. If the atty in fact is there and you id them and see them sign...of course you notarize it. [love that, don't you?]
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(incredulous, I am stunned.) The jurat is okay to use with a poa? Gasping, a little. Since when?
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Yes. Yes it is. That's just the way it is.
==========
and I repeated everything again and annoyed her further.

"is Dora there?"
-----------------

No. She is off today....well...hold on a minute.

She comes back and the answer is still yes. Do it.

(For those who are wondering, my notary materials do not cover this specifically. Cannot find a law on it either--yet, except that there is an obscure atty gen letter that will almost stretch to cya if I have to.

"DORA" is the notary paralegal who answers our questions. I have talked to her boss--won't do that again. I felt very unwelcome to call. He is not for signing agent activity in Texas.)

Did the signing and it was bugging the crap out of me so Iwrote the sos an email and I gave them the story and said I submit that she is very wrong. To wit, we have in our notary materials how to use an ack with a poa but no example of completing a jurat.

However, nothing says NOT to do it and I need something in B&W or a person to call. I had told a loan officer I might need him to call you so we could get to a resolution -- Now he thinks it's okay because I had nothing else to argue.

Dora called me after recieving my note and told me no way jurats were okay with a POA. I had to slow her down to listen to what I was saying because she thought I was saying I SHOULD notarize w/ a jurat.

Finally, she got the picture and apologized.

I told her I had done it -- take me in now officer. Put me in a cell with your helper up there in Austin.

Why do we even have notaries in Texas if they are not going to be educated and aware of what they are doing? Oh, but wait...we have to have specific laws to tie everything up and make it something which CAN be learned.

I actually suspect that this will never be addressed by lawmakers because they may feel in Texas that a notary probably needs to work for a lawyer so he can interpret the law on notarial acts for him/her.

Most notaries I know really do care about doing it right, but because there are some vague areas there is a LOT of notary myth. The NNA has been able to use the lack of specifics to assert that they have laws for Texas in their handbook. In fact, only 25% - 30% of the handbook is Texas Law. The rest is NNA suggested procedures on being a notary in Texas.

Reply by PAW_Fl on 12/7/05 9:14pm
Msg #81064

You don't need a statute to tell you, you can't do it. Read what a jurat is... you giving an oath to someone who is in front of you. Period. End of discussion. The principal of the POA is not there and therefore cannot take the oath. You could have the AIF sign that he took the oath and swore to the facts, but chances are, the AIF doesn't know the facts and therefore is committing perjury and you can't be a part of that, now can you? The AIF can't take the oath for someone else. It must be the person named in the document that takes the oath and swears to the contents. A Durable or Limited Power of Attorney does not give the AIF that power. (At least not in any POAs that I've seen.)

Reply by TitleGalCA on 12/7/05 9:59pm
Msg #81074

I'm sure PAW, that your post was directed to the general audience, rather than the author. Of course Brenda knows better, as expressed in her post, as we all do. However, she was put in a difficult situation, making that phone call, and getting the answer she did. The pressure to perform and make the transaction happen is tremendous in real estate at all levels, especially the notary because now we're down to closing time.

IMO, it's a perfect example of the lack of enforcing the law and purpose of the jurat at the top level. The post seemed to be intended to show the irregularities, not a particular situation, or the 'wrongness' of the jurat.

I suggest, it's no wonder there's problems with new notaries - they call the governing authority and get an answer like this.

Even if you intended to correct Brenda, I still hold that the problem of correctness in notary work varies from agency to agency. Isn't that true of the law in general...it's just up to the judge...now isn't it? Courts and lawyers have different spins. Winning and losing all depends on...nebulous factors.

Sort of like the old and true saying..."it's not what you know, it's WHO you know." It takes a discerning and discriminating person to wade through the waters, and it's a balancing act for sure.

My comments here are philosophical and point out problems. For those that want to quote notary handbooks, please save your breath. I know them.

Reply by PAW_Fl on 12/8/05 8:56am
Msg #81120

You're absolutely right, in that my post was not an admonishment of Brenda, as I have the highest respect for her as a professional and as a Texan. My response was more of a general response because, like you, I see this type of issue all too often. We have our rules, regulations and statutes that we must live by and abide by. I choose my battles carefully, but when it comes to flagrant disregard for our laws, practices and procedures, I will fight to uphold them. I've had my share of battles with major lenders and title companies over issues such as these, and honestly have not lost any clients because of it. They know where I stand.

Reply by BrendaTx on 12/7/05 11:11pm
Msg #81087

**You don't need a statute to tell you, you can't do it. Read what a jurat is... you giving an oath to someone who is in front of you. Period. End of discussion.**

Paul,

I disagree with you that I do not need a statute. I believe I do.

I feel it is misguided to assume that just because it makes sense it is the course to take while we act as notaries--in TEXAS, Paul.

A lawyer could argue your side, but with greater difficulty than arguing the other side. Most assuredly, no matter what they had to rely on in court, they will argue where the money is in most situations - the lender...and they will have good proof to do so IF there is a scintilla of legalese to support that I was attempting to do UPL. Case law is made daily. Like I said, there is an AG opinion that will kind of cover my rear on this.

And, you see, there are many of those little tidbits floating around, new interpretations, case law, AG opinions and in THIS state and in THIS case, notaries must NOT overstep their boundaries when it is materially injurious to another. I followed the right course. I would not advise Texas Notaries to go further than they can find in black and white, nor to assume the NNA is correct because the NNA is not the friend of the legislature or bar here...nor to assume that because they read it here it is correct. (Do your own research and be confident of what you know.)

There is much I do not know in the law, and about Texas law, surely you can concede you do not know every bit of new case law documented, every AG opinion, or special appointments of those who will interpret law for an interim period.

The argument I fear far more than I am concerned about an aif on a survey affidavit/jurat comes back to:

"DO NOT practice UPL, Miss Notary Signing Agent. You are not authorized to make a decision like this which could injure others in a material way. Did you NOT KNOW that on DATE there was a recent case in the XXX Court of appeals which states that ..... Oh? You did not???? Hmmm...Well, well, Miss Notary Signing Agent, I don't believe you are quite able to handle loan closings, now are you?

And, by ASSUMING you knew more than the bank's lawyers did you caused a loan not to fund and it was CRITICAL to the bwr to have the same fund. Weren't you told by the SOS to go ahead? NO. I did not ask you about the subsequent letter and call. Please answer my question."

Therefore, Paul, I believe you are wrong to be so confident in your assessment.

UPL is very serious in Texas.

I have addressed the legislature personally with testimony to get the notary more guidance through law.

I have chatted with them about our dilemma and I have looked into their eyes and knew that it was not my place to tell them anything if I wanted to make a difference. A headstrong approach from a know-it-all notary is not going to change tradition and Texas philosophy within the halls of the SBOT--and face it...that's where it has to happen.

However, I do know the way to approach them and it is with a very meek attitude, and not telling them, or telling anyone in authority, how it is going to be. Change will come by finding a way that we can make a few little changes to urge a more friendly set of rules for a Texas notary to work with.

Texas Notaries - to find out what is UPL - go to

The UPL Law
http://www.capitol.state.tx.us/statutes/docs/GV/content/htm/gv.002.00.000081.00.htm#81.101.00

or

UPL Site
http://www.txuplc.org/

(Again, I cannot stress enough for NSAs to never take what I say, or anyone says on the forums as the gospel. Do your own research into your profession and the law. Know the truth of it and be confident of what you know.)

Reply by BrendaTx on 12/7/05 11:25pm
Msg #81093

Nebulous - correction and a question for PAW

**A lawyer could argue your side, but with greater difficulty than arguing the other side. Most assuredly, no matter what they had to rely on in court, they will argue where the money is in most situations - the lender...and they will have good proof to do so IF there is a scintilla of legalese to support that I was attempting to do UPL. **

I meant to say, given a choice a lawyer could ... and the essence was that it would be hard to find a decent lawyer (in Texas) to defend a person against the lender and lender's lawyers...sorry it was not clear.


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Also, Paul, for those who wonder, what would your course of action been based on what I had to work with?

Reply by TitleGalCA on 12/7/05 11:52pm
Msg #81096

And that last sentence of Brenda's is.....

the bottom line and where the rubber meets the road.

For anyone reading these silly meanderings (mine, Brenda's or Paul's)....please remember it's "the way it is". YOU my friend, change the course of thinking and reason.

For a notary that holds to the...letter of the law....please remember the the "letter of the Law is always changing". That is what is so perfect about our system - YOU. You can change what is good and right.

Sort of like the ebb and flow of the tides of the ocean. Sort of like the fluxes of the legal community. Sort of like...Political Correctness - a very, very nasty and easy way out.
Political Correctness is a disease, not an answer. Think. Please just Think. It is very important.

Reply by Anonymous on 12/8/05 8:25am
Msg #81117

TitleGal - Good Answer and Reasoning...

As much as we would want them to be, not all things are black and white. Unfortunateley, some are very grey.

Reply by PAW_Fl on 12/8/05 9:17am
Msg #81122

Re: Nebulous - correction and a question for PAW

Personally, I would refuse to do the notarization the way it was. However, if the AIF took the oath and signed his/her name, not as an AIF, then there would be no problem me notarizing their signature. Looking through our statutes (and I agree I don't know everything there is to know about most things especially Texas law ), I do feel you would be hard pressed to find a jurat that shows a representative capacity of an attorney-in-fact. But, there are many examples of an acknowledgment by an attorney-in-fact. The absence of authorization doesn't mean that it is authorized. My stand is that if it isn't written that we CAN do something, then we aren't authorized to do it.

I understand the pressures, but I also have my own principles, right or wrong, they're mine and I live by them.

Reply by BrendaTx on 12/8/05 12:34pm
Msg #81170

Re: Nebulous - correction and a question for PAW

Hi PAW. I understand. As luck would have it I just got a call for a re-sign on it at 5:30 pm today. I am on hold attempting to work out this jurat and POA thing w/ the SS. Lot's of good ss's calling lately - the kind that pay full fee on a re-sign and do not expect me to drive around town for nothing.

I understand on the - law should say you can or do not do it.

If I cannot cite something, and the SOS ladies are on crack cocaine when I call in (I AM KIDDING!) I feel I cannot bow up and say no because I "know" that is the way it is...I cannot show them why I know and that seems to put me in the position of being a control freak notary when I am not really confident about my grounds. I need a little more than that to go on and we'll get them to write me something one day soon on jurats or I think they have no good cause to tell me not to do it.

We need laws clarified or I think we should be able to order notary stamps for any and everyone for Christmas and hand them out. That way I will always have a notary close by.

But, I can assure you that a "little lady" like me don't know nuthin' about no notary law, Mr. Lawyer. You will have to show me. And, I do like Texas lawyers...just feel like notaries are caught up in a political state of the mushroom syndrome. Just feed us crap and leave us in the dark. I have not bitshed about it much in the past because it never caught up with me in a situation where I could not find something to nail onto.

Reply by BrendaTx on 12/8/05 12:41pm
Msg #81172

Re: Nebulous - Tx Lawyers and the Notary Syndrome

Truthfully, I doubt that a lawyer who is not a notary has not ever put much thought into whether or not there is a difference between the jurat and the ack and why or why not. When that is the case you cannot grab a stapler and beat them in the head...very much...maybe a little...to get them to listen.

In my law office days, the notary's job was really more of a nuisance than anything else for lawyers. There were three, sometimes four of them.

They would sound so brilliant and intelligent during their pontification over the fine points of their work (read "baffle with BS") . But, something really unnerved them whne they had to wait while we stamped and got our book signed. It was very uncomfortable for them for some reason...so like adolescent boys they'd go to the bathroom, slam doors, run upstairs and flirt with Sally...come back down and prance around getting the pages out of order on anyone's desk...fiddle fiddle.

They'd try to figure out where to put their hands, pockets? No...belt...no...check my fly OH NO it's down...kill another minute fixing it...fiddle with stuff on the secrertary's desk..."Teh phone is ringing...are you about finished??? (What the you know what is he thinking ??? That will MAKE me stop notarizing? "No!!! Give me a minute will you??" Mutter, mutter, it's your dam_ phone. YOU SAY SOMETHING IN THERE??? Ooops..No sir. )

All four of them did it when the notary work was going on. Nutty. It was like they'd rather do anything than have to wait for the notary part to be over. (CAROLYN, do you feel my pain here?) Wills and witnessing take forever and that was compounded by the lawyer's angst.

I used to go notarize for a lawyer down the street who was a notary but his secretary was not. I did the man a favor by going.

If he had to sign, of course, I went from MY office to HIS office as a courtesy. He acted po'd that I'd even require him to let me witness and than sign the book. But, he was your classic jack azz anyhow. Shudder. My boss and other lawyers were nice to all the women in our office (as long as we were not notarizing, of course!). I did not like that peon treatment.

He made me think it might not be all about ME. And it WAS, it was, it was. Dumb lawyer.

Reply by Anonymous on 12/8/05 1:48pm
Msg #81193

Honest to God Brenda you should do stand up, I' crying...

I also worked for lawyers, that's why I'm crying. But crying aside, this thread is very interesting so keep us informed of what lyou earn.

Reply by CarolynCO on 12/8/05 8:57pm
Msg #81302

Re: Yes, Brenda -- I feel your pain completely. nm

Reply by PAW_Fl on 12/8/05 5:30pm
Msg #81255

Re: Nebulous - correction and a question for PAW

>>> If I cannot cite something, and the SOS ladies are on crack cocaine when I call in (I AM KIDDING!) I feel I cannot bow up and say no ... <<<

Well, I finally got an answer (or non-answer in this case) from our SOS office. In so many words, I was told to ask an attorney. Well, gee whiz golly, that thought never occurred to me. I'll run right out an plop down my $250 to ask an attorney a question I'm sure they have no clue about. Most attorneys, as you said, no little or nothing of the notary laws and how to interpret them. That's why we ask the SOS Notary section.

So, we're still no where on resolving the issue one way or the other. I guess it's still "our" decision how we wish to proceed.

Reply by Jon on 12/8/05 12:26am
Msg #81102

Paul,

You said,
"You could have the AIF sign that he took the oath and swore to the facts, but chances are, the AIF doesn't know the facts and therefore is committing perjury and you can't be a part of that, now can you?"

Who are we to determine whether or not the AIF does or does not "know the facts". I would be very comfortable and have no reservations at all about swearing that my wife is known by her married name and also known by her maiden name. Unless we have specific knowledge that the AIF is committing perjury, we should not make that assumption. I submit that to do so would be overstepping our boundries as a notary public, and possibly leave us open to litigation.

Reply by PAW_Fl on 12/8/05 9:51am
Msg #81128

I never said that it would be perjury, I said "chances are". There are always exceptions, such as a wife may know the different names a husband goes by. But what about this situation: A home buyer (couple) are not available to do the closing, so they give their Realtor a POA to do so. Then would you allow the Realtor to "swear" for the buyers to certain facts about their names, credit history, previous property ownerships, taxes, etc.? Each case must be weighed on its own merits. Personally, I would err on the side of caution and not allow anyone to make a sworn statement for someone else. POA or not.

I'm still waiting to hear a response from our SOS office on this subject.