Posted by MrEd_Ca on 1/14/06 2:21pm
Msg #88393
Question about P.O.A. Protocol-----
I completed a signing last week & got a call back from the escrow company questioning my P.O.A. signing protocol. I had the borrow sign, for the absent spouse, as follows: " Jane C. Smith, by John L. Smith as Power of Attorney" . Initials were "JCS, by JLS P.O.A."
The escrow company claims that is not neccessary and that the correct way is for the borrower that was present to just sign the absent spouses name . No need for any of the
'Power of Attorney' or 'P.O.A.' stuff at all.
I was very firm that the way I had the borrower sign was correct, & the escrow company was just as firm in they're opinion. I said I was unable, legally, to notarize in any other way.
My question is, does anyone have any sort of Calif legal reference that I can refer to that will back me up on this? I have looked in the CA notary Handbook & can find no reference to signing by POA at all. So, does anyone know?
| Reply by FastCA on 1/14/06 3:03pm
Msg #88405
Did you try the hotline at NNA? I have done three of these over the years and I 'think' that you are correct, however, my .02 is not worth much. MrEd.x two.
| Reply by Brad_CA on 1/14/06 3:13pm
Msg #88412
The correct format is: Jane Smith by John Smith, her Attorney in Fact
| Reply by DellaCa on 1/14/06 3:29pm
Msg #88417
I agree with Brad
Initials - JCS by JLS AIF
| Reply by Rick_NY on 1/14/06 5:17pm
Msg #88431
I'm with you. n/m [Re: Question about P.O.A. Protocol-----
| Reply by anonymous on 1/14/06 4:17pm
Msg #88430
Brad and Della
Did one the other night and you are right on target in my mind, that is exactly how it was handled.
| Reply by Blueink_CA on 1/14/06 3:47pm
Msg #88421
As soon as I'm aware that a POA is involved, I contact the lender/TC for instruction of how to have the docs signed. Most request the docs signed the way you handled it. However, I have been asked to just have the POA sign the absent borrower's name. Sometimes you'll see POA info in the closing instructions. Sometimes they won't allow POA's at all. Whenever I have a POA signing, I make sure it's noted in my journal.
Do they want you to resign at your own expense?
| Reply by Janlee_MI on 1/14/06 4:01pm
Msg #88428
As a title person, we always required a copy of the power of attorney for the commitment and that is how it should be signed. The title and lender should always decided wether to accept a P.O. A. But as far I can tell the way you did was correct.
| Reply by MrEd_Ca on 1/14/06 5:20pm
Msg #88432
Yes, they would like me to re-sign, at my expense. I am not so much concerned about the $ since it is close by. I am concerned about the legality since the notarization, as the escrow company wants it, would appear as if the absent borrower were actually there & I, by notarizing the document, would make it appear as if she were actually there, also. If the POA protocol (Jane Smith, by John Smith Attorney in Fact) were followed someone examining these document,s maybe years down the line, would know that wasn't the case.
I am worried about legality and correct & proper notarization protocol as well as not lletting myself get bamboozeled by a party to the deal that has a lot to gain (ie the escrow company). I figure that if a notary is not going to follow the legal protocols, what's the point in having notarys?? (& I almost forgot: they want(ed) me to back date the notarizations on the resign. I refused. )
& Thank you to all have replied!!!
| Reply by Blueink_CA on 1/14/06 5:45pm
Msg #88437
Your acknowledgment would show the POA as the person appearing so anyone examining the docs would know that the borrower was absent. You should also check AIF in the optional capacity info. Also remember, no jurats for POA. Good luck and I would ask for at least a trip fee.
| Reply by Brad_CA on 1/14/06 5:51pm
Msg #88438
Red Flags!!!!! Advising you not to follow proper POA protocol (un-ethical/unlawful). Advising you to backdate (un-ethical/unlawful). May be some fraud is afoot.
Sounds like this is a very shady operation, or they just do not know the law, or do not care.
You are the commissioned notary, they are not.
It is your commission on the line, not theirs.
You must follow proper protocol and the law at all times, despite what they tell you. It is your butt on the line. You were right to refuse to backdate. Nothing is worth losing your commission and/or getting a stiff fine.
Not legal advise, just food for thought.
| Reply by BobbiCT on 1/14/06 5:55pm
Msg #88439
A far more interesting thing to consider ...
In CT when using a Power of Attorney documents are signed "John Smith, Attorney in Fact for Joe Jones". This immediately tells anyone looking at the documents to look for a PoA and to verify that PoA gave John Smith the authority to take out a loan and mortgage Joe's home.
Remember this Ficticious Scenario the next time you have a PoA signing: The Loan Officer verbally instructs the NSA to have all the documents signed "Joe Jones" and just include the PoA with the return document package (or maybe no need to include it at all). The Lender and the secondary market purchaser have NOT approved a PoA closing. In fact, even if the lender would approve it, the secondary market purchaser who agreed to purchase this loan did so with the condition that it never purchases PoA loans. If Joe Jones can't sign and has to use the PoA, then the deal is off because the lender can't sell the loan.
The Loan Officer & Escrow Company want their income this month. The escrow scheduler needs the Loan Officer to refer work or income goes down. Both of them won't get any income if the Loan Officer or mortgage broker tells the lender it's PoA signing: since application interest rates have gone up, Joe loses his rate lock, and his income doesn't qualify him for the higher interest rate.
Solution: Have John Smith just sign everything Joe Jones and include the PoA with the loan package. When the package comes in, throw the PoA in the trash, record the mortgage deed, and send everything on to the lender. Who at the lender, purchaser, quality control, and audit end of this loan would know that the documents were signed with a PoA? There is NOTHING on the documents to indicate this. The only red flag may be an auditor POSSIBLY discovering that the Joe Jones original application, TIL and GFE signatures and the Joe Jones final loan signing signatures do not match.
A year later there's a problem with the loan. Joe defaults. Joe says that's not his signature on the documents ... and he can easily prove it because it isn't his signature. The Notary is called. The Notary looks back at Journal and states "John Smith" signed Joe Jones name to all the documents with a Power of Attorney. Q: Where's the Power of Attorney? I don't know. I sent it back with the loan package. Q: It's not with the loan package. Our company doesn't allow PoA loans. Why did you do this? The escrow company told me to tell John Smith to just sign Joe's name. Q: Do you have proof? We asked the escrow company and they said the had no idea it was a PoA signing. You never told them and there is no way they knew what you did because there's nothing in the documents to indicate you let someone else FORGE Joe Smith's name. The lender has to re-purchase the loan and pay a penalty to the secondary market purchaser because the contract to purchase was "No PoA Loans." Who does the lender sue for its financial loss? Both loan officer and escrow agent swear they knew nothing about it and there's no proof they did.
What I have with me at all times: A photocopy of the CT General States (aka laws) showing exactly how a document signed using a PoA should be signed. I make sure I always use a PoA notarization block, have a copy of that with me, too.
Not a lawyer. Not giving legal advice. Not slamming any lender, signing, escrow or title company. Not to scare anyone. Just a ficticious scenario to make you think before you act.
| Reply by Anonymous on 1/14/06 6:30pm
Msg #88446
What is a ' PoA notarization block' ? n/m
| Reply by BarbaraL_CA on 1/14/06 6:18pm
Msg #88445
Here is a link to American Bar Assoc on how to sign...
http://www.abanet.org/rppt/public/power-of-atty.html
Below is what it says about signing a POA.
"How The Agent Should Sign?
Assume Elvis Presley appoints his wife, Priscilla Beaulieu Presley, as his agent in a written power of attorney. Priscilla, as agent, must sign as follows: Elvis Presley, by Priscilla Beaulieu under POA or Priscilla Beaulieu Presley, attorney-in-fact for Elvis Presley."
| Reply by Tanja Zanol on 1/14/06 8:48pm
Msg #88471
In regards to POA's it is up not only to lender, but also to the title company as to how the person signing for someone else should be doing this. This has do to both underwriters and to how the law is for each and every state. I used to work for a national title company and this was part of the job I did was to make sure that poa was acceptable and that the closer knew how to have that person sign. Check the closing instructions from the lender and see who is getting the title insurance (hud) and contact them directly cause that will be the underwriter for the title co.
I hope this helps..
| Reply by TitleGalCA on 1/15/06 12:36am
Msg #88497
Re: Question about P.O.A. Protocol-- no one knows this??
***My question is, does anyone have any sort of Calif legal reference that I can refer to that will back me up on this? I have looked in the CA notary Handbook & can find no reference to signing by POA at all. So, does anyone know?***
Yes, Mr. Ed. Not sure why it's not been posted before.
========================================================
CC 1095. When an attorney in fact executes an instrument transferring
an estate in real property, he must subscribe the name of his
principal to it, and his own name as attorney in fact.
There you go.
========================================================
As you already knew, the escrow company was wrong, but you were also, the CA legal reference is above. Unfortunately, the handbook doesn't reference these types of situations to the dismay of many notaries. Many times you have to look to the government code or civil code, or more hard-to-find codes.
| Reply by MrEd_Ca on 1/15/06 9:28am
Msg #88513
Thank You!!! to all who replied to my question......
......the legal references are just what I need, & the possible scenario was great for thought. I owe everyone who replied a super big thank you!!!
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