Posted by LisaWI on 9/30/05 9:21am
Msg #68119

Precautions-Advise and Opinions

I have come to the conclusion I may need to take some measures to protect myself even with my E&O insurance. Our notary laws for Wisconsin are outdated in my opinion, are very vague and dont take the measures needed to protect a Notary/Signing Agent. They, in my humble opinion, were geared for the notary who works as an employee under the direction of a lawyer or what have you, providing the protection they need. After talking with an attorney yesterday about a situation that was dropped in my lap, he agreed with me. My question to all of you is, how many of you have a Hold Harmless Agreement and is it advised to have it made up by a lawyer? I did read the thread down below and noticed Bob Rogers from Florida does, but how many of you actually have one of these to be signed by the borrowers?

Reply by Bonnie_FL on 9/30/05 11:19am
Msg #68138

Re: Precautions-Advise and Opinions For PAW

What's your take on a Hold Harmless agreement? Ever use one, can we have them signed w/o the Lender/TC or SS getting upset with us using our own personal form at a signing?

Reply by LisaWI on 9/30/05 12:53pm
Msg #68156

Re: Precautions-To Bonnie

Hi Bonnie,
I just wanted you to know, the notary statutes for the state of Florida are, can I say, more up to date and notary friendly than Wisconsin. Every once in a while I take a tour thru another states statutes just to see what they have. But I do agree with your question about not upsetting all of the above. But my theory is I have to be at a comfort level at what I'm doing in order to do the best job that I can and if I'm always worried about being sued not because of mistakes I make but because the statutes are vague in their descriptions, then its no longer a good comfort level. I love what I do and only plan to excel at it, and to me there isn't any such animal as, it can't be done. All I have to figure out is how to appease everyone on this matter.

Reply by Anonymous on 9/30/05 1:01pm
Msg #68160

Re: Precautions-To Bonnie

As a Real Estate Broker, I can tell you that I cannot write a hold harmless statement on a document....that's practicing law. They do not hold up in court in Oregon. I have a hunch that the same hold here, that if you wrote one, you are practicing law, (though I am not a lawyer) my opinion is that it would not hold up in court.

Reply by LisaWI on 9/30/05 1:21pm
Msg #68163

Re: Precautions-To Bonnie

Huh, thats funny, because I used to work for a Real Estate office and one particular client we had sometimes would use a hold harmless agreement, that we made up, in case a buyer wanted to move into one of his homes before the actual closing date. I wonder if that applies for Wisconsin too. Well, with that being said, if I need to I will have a lawyer draft up what I need.

Reply by Sylvia_FL on 9/30/05 2:04pm
Msg #68172

Re: Precautions-To Bonnie

If I write my own will out, I am not practicing law, so no UPL.
If was to write someone else's will for them, then I would be practicing law and be guilty of UPL.

Same, if I write a Hold Harmless agreement for myself to cover myself then I am not practicing law. If I wrote a Hold Harmless agreement for someone else to use, then I would be guilty of UPL.

Reply by LisaWI on 9/30/05 2:52pm
Msg #68185

Re: Precautions-To Bonnie

So, a hold harmless agreement just between the borrowers and me is OK. Am I correct though in thinking making ones own affidavit (for a borrower to swear to) would be a no-no. Unless it was written somewhere in my statutes that I could make and use such a form.

Reply by PAW_Fl on 10/1/05 7:43am
Msg #68271

Re: Precautions-Advise and Opinions For PAW

I have an attorney advised agreement that I present to the borrowers stating my role as a signing agent and notary. It sets the expectations by informing them I cannot answer any questions that are specific to their loan, but may be able to direct them to the proper document that contains the information. I explicitly tell them that I am not a licensed attorney in the state of Florida and cannot offer any type of legal advice. I do have them sign it for two purposes: (1) so they do acknowledge my role and (2) to provide a signature sample for my records. Even though I maintain a journal, Florida does not require one and therefore there are no set ways to use a journal entry should someone ask.

Reply by Gerry_VT on 9/30/05 4:05pm
Msg #68194

I don't know if a hold harmless agreement would hold up at all. But even if
it did, it would mean the supposed borrower would protect the notary from
lawsuits. Well, if the signer is actually an identity thief, it will be tough to find
him/her to enforce the agreement. And even a legitimate borrower probably
won't be good position to protect anyone from a lawsuit. So I would think
it wouldn't be a very valuable agreement, even if it is enforceable.