Posted by Regal/NC on 8/11/06 10:55am
Msg #138200

Signature by "Mark". What would U do?

Refi for married couple. Husband unable to write his complele signature due to health. I was unable to contact SS, TC or Lender. I allowed the borrower to enter his "Mark" per SOS requirements. TC requests a statement from me attesting that borrower understood documents and was unable to write complete signature. Would you comply with statement request?

Reply by WDMD on 8/11/06 11:00am
Msg #138201

Why would you have a problem attesting that he understood and signed the documents? If you notarized his signature arent you supposed to be sure he is of sound mind?

Reply by Regal/NC on 8/11/06 11:04am
Msg #138204

I never stated that I had a problem with the request. I was just eliciting dialoge.

Reply by John_NorCal on 8/11/06 11:00am
Msg #138202

If that's the way it went down, yes, I would comply with their request. It isn't like you're hiding anything, you did everything according to your state's regulations according to your post.

Reply by Regal/NC on 8/11/06 11:10am
Msg #138207

Exactly!!! Nothing to hide here. Completed request without hesitation.

Reply by SueW/Tn on 8/11/06 11:15am
Msg #138210

Regal, I liked your post because

it was something any one of us could come up against. I have never given it much thought but sure as the day is long I'll run into this shortly and having read your post and what Title wanted from you it gives me a heads up. Thank you for sharing!!!

Reply by Regal/NC on 8/11/06 11:24am
Msg #138216

Re: Regal, I liked your post because

SueW/Tn,

The interesting part is my state changed the requirements for signature by "Mark" just last December. Updated guidebook not available as yet. I keep a "Cheat-Sheet"copy of key changes in my briefcase.

Reply by BrendaTx on 8/11/06 1:51pm
Msg #138235

Re: Regal, I liked your post because

I agree Sue, this is good stuff for opinionating and discussion.

Reply by Gary_CA on 8/11/06 11:18am
Msg #138212

Depends on what you understand "understood" to mean



Great post. Obviously you followed signing requirements and can certify that... but you mentioned a health issue... so I would just make sure the statement didn't go too far into his understanding the contents of the document. Just so long as it was reasonable, I'd gladly comply.

I mean, gee, some days I'm not sure I understand what a 2/28 Libor ARM amortized over 40 years but due in 15 is myself!

Reply by Regal/NC on 8/11/06 11:28am
Msg #138217

Re: Depends on what you understand "understood" to mean

Gary,

The TC's concern was that the same person that completed the Respa package, was indeed the person utilizing his "Mark" at this point in the transaction.

Reply by Tina_MA on 8/11/06 12:18pm
Msg #138225

In Massachusetts, one must do the following to notarize a signature by mark:

(h) A notary public may certify the affixation of a signature by mark on a document presented for notarization if:
(1) the principal affixes the mark in the presence of the notary public and of 2 witnesses unaffected by the document;
(2) both witnesses sign their own names beside the mark;
(3) the notary writes below the mark: “Mark affixed by (name of signer by mark) in the presence of (names and addresses of witnesses) and undersigned notary pursuant to Executive Order No. 455; and
(4) the notary public notarizes the signature by mark through an acknowledgment, jurat, or signature witnessing.

Reply by MelissaCT on 8/11/06 2:12pm
Msg #138242

Re: Signature by "Mark". In CT...

the signature would be witnessed by 2 additional parties, who would also print their name & address onto the document. I carry the ack form with me, although I've not had to use it yet. I did receive a call from someone I network with that was in that situation & I looked it up for them.

4.7 Signature by Mark
If a person cannot sign his or her name because of a physical handicap or illiteracy a mark can
serve as a signature. A mark usually an “X, can suffice. Two witnesses in addition to the notary should be present when a person signs by mark. The name of the person who signs by mark should be written near the mark by one of the witnesses. The witnesses should also subscribe their own names to the document as witnesses, and to the notary’s journal.

Venue

On this the _________day of ___________, 20____, before me, the undersign notary public,
personally appeared (signer) , known to me (or proved to me on the basis of satisfactory
evidence) to be the person who made and acknowledged making (his, her) mark on the within
instrument in my presence and in the presence of the two persons indicated below who have signed the within instrument as witnesses, one of whom, (name of witness) , also wrote the name of the signer by mark near the mark.
_____________________
Signature of Notary Public
Date Commission Expires:_______________

Reply by Ernest__CT on 8/12/06 7:28am
Msg #138353

Re: Signature by "Mark". In CT...

Keeping blank Signature By Mark forms in my kit has been a lifesaver a few times.

We should all keep blank forms for
Acknowledgement
Jurat
Certification of Copy by Document Custodian (or the equivalent for your state)
Signature By Mark
Receipt for Notary Services
Credible Witness
Subscribing Witness (if applicable in your state)
and other forms specific to our states. (Yes, yes, yes, I know. We have to be very careful about Unauthorized Practice of Law [UPL]. I'm not suggesting that anyone would tell a signer what form to use unless it had been stated in the Notary Public Handbook or specified by the institution which requested the signature.)

Reply by ReneeK_MI on 8/12/06 5:06am
Msg #138348

reasons they request your statement ...

Both the T/C and the Lender will want a statement in the file whenever there is anything that could possibly be indicative of the borrower having any issue w/ comprehension.

A Signature by Mark is one scenario where there is that potential indication, since there are myriad ways in which a person's mental capacity COULD affect their ability to sign their name. Your statement will then live in that file - and be there to answer anyone's question (like the investors) as to whether or not there was a comprehension issue.

If/when you ever do have to provide such a statement, I would include an 'observation' if the person's need appeared temporary and not permanent - meaning, if he just had surgery and his hands are bandaged/cast, I would include something like 'per borrower, hands in casts due to carpel tunnel surgery'. (You note the "per borrower" part). The reason I'd state it this way is to avoid the lender from further issues if this borrower is, say, a surgeon ...signing by mark ... would be an "ut oh" moment for the lender.