Posted by BeccaWI on 5/6/05 1:31pm
Msg #36268

Exhibit "A"

I was reading the NNA letter and it is going on about Exhibit "A". What do you do if there is no description on or attached to the deed?

Reply by Carol_CA on 5/6/05 1:39pm
Msg #36272

I guess you did catch their recommendation in the article: :o)

"Signing Agents should inspect the deed of trust or mortgage in advance of the loan signing appointment to ensure that the property description is included, and ask the title or escrow agent to e-mail or fax it when it is not."

Reply by BeccaWI on 5/6/05 1:41pm
Msg #36274

I did but just seeing what everyone else does. I guess I didn't realize it was a huge thing and had 2 yesterday.

I wonder what to say if the ss or title co says we don't have it, go without it!

Reply by Carol_CA on 5/6/05 1:43pm
Msg #36277

Refer them to the NNA article :o)

Reply by Anonymous on 5/6/05 1:49pm
Msg #36281

ok I tried the search button so don't crucify me for asking this. What is Exibit A? I had one not long ago that I had to turn down cuz they wanted me to do something illegal. So I never even got to ask this question. In the package there was a page that the heading on it was "Exibit A" and the rest of the page was blank.

Reply by Sylvia_FL on 5/6/05 1:52pm
Msg #36283

The Exhibit A is the legal description of the property and it is referred to on the mortgage/DOT as being attached.

Reply by Anonymous on 5/6/05 2:02pm
Msg #36287

oh ok thanks. I had heard it refered to as Schedule A.

Reply by Sylvia_FL on 5/6/05 1:51pm
Msg #36282

I would say that is fine, I can go without it, however without the Exhibit A, the document (mortgage/DOT) is incomplete and I can not notarize an incomplete document, so as long as you understand that the document can not be notarized without the Exhibit A,I am willing to go and do the signing but without notarizing that document.


I am sure they will make every effort to get it to you then

Reply by BeccaWI on 5/6/05 2:15pm
Msg #36289

That is a good way of wording, thank you!

Reply by CA ESCROW on 5/6/05 4:40pm
Msg #36303

I worked in the Escrow Title field for 4 years now, before coming a SA or Notary.
Unfortunately, the documents go to the SA without the Exhibit "A" being attached.
The Officers do not attach them all the time. It is the Assistants job to attach the
Exhibit"A" when the documents come back from signing, for Grant Deeds, Interspousal Deeds,
or Deed of Trusts. As these documents can not record without them. They will be rejected by
the County Recorders office. But you can still notarize the document in California without the Exhibit "A".
It is done everyday at the Title companies.
Also- The Exhibit "A" is attached to the Preliminary Title Report. Most Lenders do not have the description typed on their Exhibit "A" insert, so it has to come from Title. (Smile)

Reply by JanetK/CA on 5/6/05 5:07pm
Msg #36310

I'd be careful, since it sounds like you are giving legal advice here. The California notary laws state that we are prohibited from notarizing incomplete documents, so it is a question of interpretation as to whether or not the document is incomplete without that attachment. And I've heard lots of arguments on both sides of this issue. Because something is common practice, however, does not make it right. If there is a problem down the road (e.g. the wrong one gets attached), it's the notary's signature on there, not the Escrow Assistant's or the Escrow Officer (unless they are doing the notarizing, of course).

Reply by CA ESCROW on 5/6/05 5:14pm
Msg #36315

I am not giving legal advice. I am only stating the facts ,as I worked there and saw first hand how
things operate. I am not saying it is right and I know the notary will be at fault. But most of our notaries are from the Title companies and some from SS, but in the end it all comes out the same.
The Exhibit"A" is usually attached unfortunately after documents are received at the Title Company.

Reply by MaggieMae_CA on 5/6/05 5:16pm
Msg #36317

Hi JanetK... The notary is notarizing the signature of the signer. The notary is not vouching for the contents of a document. According to CA notary laws the notary should make sure there are no blanks which can be filled in later (yes, Exhibit B can be considered a blank). However, it is reasonable to assume that if Exhibit B contains the property address and/or tax reference and the face of the document contains the same information that there should be no foul play.

Reply by Sylvia_FL on 5/6/05 5:54pm
Msg #36327

Re: Exhibit "A" Maggie Mae

Ca handbook doesn't say "blank" it says the notary must refuse to notarize if presented with an incomplete document. Government code section 8205

When the document says that Exhibit A is attached, and it isn't, then it is an incomplete document.

Reply by Lee/AR on 5/6/05 8:19pm
Msg #36348

How would 'we' know whether it was correct, anyway?

Not disagreeing with 'it should be there', just pointing out that 'we' have no way of determining whether a provided legal description is right or wrong.

Reply by Art_MD on 5/6/05 8:32pm
Msg #36350

Re: How would 'we' know whether it was correct, anyway?

Not our job or responsibility. If there is a piece of paper titled Attachment "A" with something type in below , thats all I need to see.
The words could say anything. I don't read it, won't read it, won't verify it, and won't certifiy it.

Art

Reply by Robert E (Bob) Rogers on 5/7/05 12:12pm
Msg #36420

Janet...in your post you said, " If there is a problem down the road (e.g. the wrong one gets attached), it's the notary's signature on there, not the Escrow Assistant's or the Escrow Officer (unless they are doing the notarizing, of course)".

I hope you are not suggesting that we are responsible for the accuracy of the contents of the documents.

In my State all we are responsible for is ensuring to the best of our ability that the document signer is who they say they are and that they appeared before us and either signed the document or acknowledged that they signed the document. We can not be held liable for the contents of the document, so if someone else makes a mistake that is there problem, not mine.

Reply by JanetK/CA on 5/8/05 1:12am
Msg #36492

You're right - I don't mean that we are responsible for the document contents. However, if the document is complete - whether that means that the legal description is included in the body of the DOT (used in CA), as is sometimes the case, or in the form of an attached "Schedule A", the borrower whose signature we are notarizing has the opportunity to verify the information and detect a potential error. If it is added after the fact, that is not possible.

No document should be modified after it has been notarized and the point here is that adding the schedule A - which will be clearly referenced in the body of the document, if one is to be included - has been interpreted by experts (see PAW_FL message below) as the equivalent to a modification to the document. In theory, then, the signer could claim "that's not the exact document that I signed and had notarized." I hope this clarifies what I meant.

Reply by PAW_Fl on 5/6/05 5:11pm
Msg #36313

>>> But you can still notarize the document in California without the Exhibit "A".
It is done everyday at the Title companies. <<<

Just because it's done all the time, doesn't make it right or possibly even legal. California notary laws are very similar to Florida's laws in wording and intent. The determination of a personal counsel, the SOS office and the American Society of Notaries, is that --any-- attachment that is referenced in a document would require that attachment to be present at the time the signatures of the document signers are notarized, since the document would be considered incomplete.

After having some lengthy and unfruitful attempts in getting some title companies to understand that "it's the law" to have all attachments "attached" (doesn't mean stapled, but physically present) when a document is signed and notarized, I approached Kathleen Butler, Executive Director of the ASN for an official stance by the ASN. The following is a "generic" response she provided.

----- ----- -----
MEMORANDUM

TO WHOM IT MAY CONCERN

FROM: Kathleen Butler, ASN Executive Director, on Behalf of Paul Williamson
RE: Complete Document Required for Notarization

One of our well-informed and skilled notary members, Paul Williamson (Zephyrhills, FL), has asked me to provide our Society’s interpretation of Florida statutes regarding notarization of an incomplete document. Mr. Williamson’s concern arises from repeated demands that he perform a notarial act over mortgage documents that are missing referenced attachments. Most commonly, at the time of notarization the mortgage is missing the Rider or Attachment that provides the legal description of the property. Mr. Williamson has correctly been refusing
to proceed with notarization in such cases.

Florida Statute 117.107 (10) provides clear, unambiguous direction to Florida notaries on the handling of mortgages that are missing referenced attachments, as follows:

A notary public may not notarize a signature on a document if the document is incomplete or blank. However, an endorsement or assignment in blank of a negotiable or nonnegotiable note and the assignment in blank of any instrument given as security for such note is not deemed incomplete.*

*NOTE: The second sentence narrowly addresses conditions affecting sale of the mortgage and note on the secondary market and has no bearing on this discussion of incomplete/complete documents.

Despite the clarity of this statutory guidance, Florida notaries are routinely urged to proceed with notarizations that are illegal due to the absence of referenced attachments to the underlying document. This activity contradicts not only Florida law, but also contradicts the clear intent of such mortgage document language as recently shared with us by Mr. Williamson:

Typically the mortgage states:
The "Property" means the real estate, including the leasehold (if any), located at <property address> and having the legal description attached to and made a part of this Mortgage.

Clearly, the preceding mortgage language makes the Rider or Attachment containing the legal description of the property a fully integrated element of the mortgage. Its absence would therefore constitute an incomplete document. Under Florida law, neither Mr. Williamson nor any other Florida notary may proceed with notarization absent the referenced Rider or Attachment.

I'll add that Mr. Williamson’s strict adherence to notary law protects him from potential criminal charges and ensures his transactions will stand up to legal scrutiny. Too many transactions are subsequently undone due to sloppy or illegal execution. Mr. Williamson does not wish this to occur, governs himself accordingly, and ASN applauds him for it.

Thank you for your consideration of these facts.

Kathleen Butler
Executive Director
American Society of Notaries
----- ----- -----

Unfortunately, formatting has been lost, but you should easily be able to read and understand their official posture on this subject.

I certainly appreciate the effort and response by the ASN on this matter. I hope by passing it along to others, that they can research their own state laws and determine if the intent and meaning of the letter assists it getting the title companies to take notice that Exhibit "A" must be included in the document package in order for the Notary to properly execute their duties.

Reply by CA ESCROW on 5/6/05 5:25pm
Msg #36319

You are absolutely right PAW FL
When the loan is first opened with the Broker, Lender and Title Company every one of these entitly's receive the Title report with the Exhibit "A". The Lender can easily attach a copy for the package and include it with the documents. The Title company can do the same. When I worked there I put a extra copy of the Exhibit"A" in the file loosely, so it can be attached with the documents. There are many of ways of doing it, but not all Title companies practice this with the EO and EA. But hopefully it will start being done. It is just good practice.