Posted by PJM/MI on 8/31/06 6:59am
Msg #142446

Odd CLosing

I did a closing 2 yrs. a go for a bo, and was assigned to close her again last night. When I got there, she started asking me questions about what would happen if she didn't pay her mortgage. Then I started looking around, and over half the house was all packed up in boxes! Even the pictures were off the wall. Hmmm!
I asked if she was moving, and she told me she was having a "garage sale". The kitchen table was gone, and all the china had been removed from the china cabinet.
I have a sneaking suspicion she's gonna take her cash out & disappear.
I know it really isn't any of my business... but should I contact the TC?
Just pondering..

Reply by Ernest__CT on 8/31/06 7:07am
Msg #142447

Yes.

Be subtle. "Gee, I was wondering ...." not "Oh, goodness! It looks as if the borrower is going to bur you!"

You're just reporting that it was unusual that there was no table on which to do the signing. Be sure that the person you're speaking to understands that you are speaking off the record!

Reply by Ernest__CT on 8/31/06 7:15am
Msg #142449

Oops. Should be "... burn you". n/m

Reply by Lisa Prestegard on 8/31/06 7:28am
Msg #142454

Personally, I wouldn't touch this one with a 10-ft. pole.... wouldn't have even answered her first question! Surely she knows what will happen if she doesn't pay her mortgage. As an SA, I am there to verify the identity of the Borrower, witness the signing of loan documents, and assure the TC and Lender that the docs have been properly executed. Period. No UPL, just pleasant conversation throughout the process. In short, I can answer "who" and "where" questions (Who is on Title? Who is my Lender? Where do I remit payment? Where can I find my interest rate?) I point to the appropriate document and let them read for themselves. Lender remedies for non-payment can be found in the Mortgage and/or Note.

Reply by Diga2Lin/FL on 8/31/06 7:47am
Msg #142460

I agree - my only concern would be with the Occupancy Affidavit - was there one?...because we're not supposed to notarize anything that we know is materially false (I will occupy the premises as my primary residence within XX number of days) - where would that leave us? In this scenario, do we abort the signing? Probably material for another thread but...

Reply by Lisa Prestegard on 8/31/06 8:07am
Msg #142468

I'm not a lawyer, so this is just my opinion and only outlines the manner in which I would handle the situation.
With regard to the Occupancy Affidavit (as with each document I notarize), I would go over the document with the Borrower, make sure they have a clear understanding as to the document and its purpose. Period.
Given the situation as described in the original post, in no way could I determine that the Borrower was falsifying the Occupancy Affidavit. If, however, after reading the Occupancy Affidavit, the Borrower said "I cannot sign this because it is not true", a call to the SS/TC/LO would be in order to convey the situation.
Again, not legal advise... just IMHO.

Reply by cyndi_ca on 8/31/06 8:15am
Msg #142471

Lisa, so then what would

you do if you KNEW they were not occupying subject property? You KNEW this because they told you.

Reply by Lisa Prestegard on 8/31/06 9:03am
Msg #142481

Re: Lisa, so then what would

Being in SW Florida, we have an unusally high number of non-owner occupied properties as well as 2nd home owners. I come across this frequently. In some cases, the purpose of the Occupancy Affidavit is to ensure that the property is not income-producing (rental) property and is intended to certify just that. Whether or not the Borrower occupies the property 365 days per year, or 2 days per year... no matter. It is still considered "Owner Occupied" and the Affidavit can be signed in good faith.
The second type of Occupancy Affidavit clearly states that the property will be the Borrowers "Primary Residence". Two totally different animals.
In either case, when going over the Affidavit with the Borrower, if he/she were to tell me that a) it is a rental property or b) it is not their Primary Residence, I would explain to the Borrower that I can not notarize their signature on the Affidavit. I would call the Loan Officer or Branch Manager from the signing and explain the ommission. It would then be the Lenders call as to whether or not the Borrower should continue to close the loan.
Any material falsehood on a notarized document with my prior knowledge would make me a party to fraud (again, my opinion... not legal advice). No thanks... I value my commission.

Reply by cyndi_ca on 8/31/06 9:29am
Msg #142486

Lisa, that is exactly what I did.

I knew I would be hearing about it since I could no get ahold of LO I called CO that hired me. I just couldn't get past the info I had and had explained as such. Thank you for your reply, it was very helpful.

Reply by Lisa Prestegard on 8/31/06 9:34am
Msg #142487

In the end, CYA is a good protocol! n/m

Reply by hcampersFL on 8/31/06 10:28am
Msg #142506

Re: Lisa, so then what would

I have been in this situation before. I am there to notarize only. I can't determine if they are lying. Really you don't ever know what may happen after the loan closes. If they openly told me that they were not living on premises I would tell them to let the LO know that.
We are not there to determine if they are being truthful. OF course everyone hopes that they are. They are signing sworn statements saying every thing that they sign is truthful but how are we to really know if it is? WE AREN'T!
jmo

Reply by cyndi_ca on 8/31/06 10:42am
Msg #142514

Bev

I just didn't feel right about it, perhaps I was wrong, but did not receive any grief afterwards.

Reply by Lisa Prestegard on 8/31/06 10:43am
Msg #142516

Re: Lisa, so then what would

Cyndi asked what I would do if the Borrowers had specifically told me they were not intending to occupy the property, hence my response. I agree with you that I am not there to ascertain the truthfulness said Borrower. But, in the instance described by Cyndi, I would not want to be a party to a fraudulent transaction by notarizing an affidavit I knew contained falsehoods.
Fraudulent in that non-owner occ. and 2nd home loans tend to have higher interest rates and more a more stringent qualification process than primary residences. To omit, or report occupancy erroneously could be construed as intent to defraud by deceit. Complicity to commit fraud... no thanks
Again, not a lawyer... just covering my tail and protecting my commission.

Reply by hcampersFL on 8/31/06 10:45am
Msg #142521

Lisa and Cyndi- I was responding to the original post. n/m

Reply by hcampersFL on 8/31/06 10:47am
Msg #142522

Re: Lisa and Cyndi- I was responding to the original post.

I guess it didn't read that way because I had continued to read responses. I was talking about the org. post.
b.

Reply by Lisa Prestegard on 8/31/06 10:47am
Msg #142523

Gotcha :) n/m

Reply by Dorothy_MI on 8/31/06 7:59am
Msg #142466

Although I can understand your frustration, PJ, I'm inclined to agree with Lisa. I probably would have said "the answer to that question is in your mortgage but if you want clarification check with your attorney. I'm only here to identify you and make sure you sign all the papers correctly, I can not offer any legal advice." Of course, when they hit you out of the blue with some off the wall question like that, it's hard to be composed and think on your feet (been there, done that and have a large collection of the tee shirts).

And maybe she is planning on having a garage sale and buying new furniture, we don't know for sure. If you had met her at the local coffee shop or she'd have closed in the title company office, this delima (sp - no coffee yet) would not be an issue. But only you can decide what course of action if any you take. I'm certainly glad that this is not a decision I have to make.