Posted by sharpnote_CA on 1/9/06 10:10pm
Msg #87260

Refusal to notarize

Looking for input... I recently refused to notorize a doc titled Signing Service Fee Responsibility. The doc basically states that if the loan does not close the borrower is still responsible for the signing fee. I had the borrowers sign the doc but put a note saying why I would not notarize, now the title co is asking me to notarize anyway. I believe it is unlawful to notarize a something that results in a direct financial benefit for the notary. Has anyone seen this before?

Reply by John_NCal on 1/9/06 10:18pm
Msg #87264

I've never seen anything like that but I tend to agree with your thinking. Another thing is that you or rather the title company are asking the borrower to give up one of his rights afforded to them by their right to cancel, namely no financial cost if they cancel the loan.

Reply by PAW_Fl on 1/10/06 7:59am
Msg #87300

>>> no financial cost if they cancel the loan. <<<

Not sure if the signing fee would be included in the definition as described in Reg Z.

" ... the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest."

It would be up to the courts to determine if the signing fee is considered a fee associated with the "transaction" or external to the "transaction" similar to the appraisal fee.

My biggest contention with this is that the contract the NSA has is not with the borrower and typically is not paid directly from the borrowers funds, i.e., not a settlement charge, per se. The NSA is paid from the operating funds of a signing service, title company or lender, or from an escrow account by the settlement company, often the title company. The borrower pays for our service, either directly or indirectly, through their closing fees and settlement charges, but unless specifically associated with the transaction, and not as a general operating procedure, the fee would not be refundable if the borrowers exercise their right to cancel. JMHO

Reply by BrendaTx on 1/10/06 3:52am
Msg #87286

Smart thinking sharpnote. I might have blown right past that one without giving it a thought on the right day. I appreciate your insight.

Reply by LawrenceOK on 1/10/06 7:43am
Msg #87297

Technically you would be notarizing yourself as you are the signing agent. This means the borrower has to pay you if the loan does not fund. Not sure if it would be illegal or not but I would not notarize it.

Reply by srnotary_CA on 1/10/06 9:33am
Msg #87303

I haven't seen this document. But if I remember correctly you can not notarize anything that will be directly beneficial to you. I wouldn't have notarized it either.

Reply by Bonnie_CO on 1/10/06 9:38am
Msg #87304

I would not have notarized it either. It's also my understanding that we should not notarize anything that we could benefit from. Better to be safe than sorry...

Reply by wendy_wa on 1/10/06 10:04am
Msg #87314

Re: Refusal to notarize - an aside

Don't each of you provide your own "Fees Due" acknowledgement anyway? All of my borrowers sign such that says they are responsible for any fees for "courtesy closing" in the event they cancel their transaction. I can see not notarizing such a doc, but if you had your own for the borrower to execute, the TC might accept that as a substitute. They just want to be sure the borrower gets stuck with the Notary's bill in the event the borrower cancels.

Reply by PAW_Fl on 1/10/06 10:19am
Msg #87318

Re: Refusal to notarize - an aside

Why saddle the borrower with YOUR fee? You do not have a contract with the borrower and the borrower does not have the choice in determining who will "close" their deal. Your contract is with the signing agency, title company or lender. You are assigned by one of them to visit the borrowers and perform the signings. IMO, having the borrowers 'acknowledge' they have a fee due is possibly without merit, legally.

Reply by Bob_Chicago on 1/10/06 10:46am
Msg #87333

I Concur with Paul

This issue first was raised by the "Man from Tennessee" ( not Elvis)
on the old NASA board, and was roundly condemmed then , as it should
be now.
If the bwr refused to sign such a doc, would the NSA not proceed with the signing?
If they stopped signing part way through the docs when an issue came up, would the
NSA attempt to proceed to collect the NSA's fee?
All issues regarding fees due a NSA is between that NSA and the party who
contracted for the NSA's services, and does not and should not involve the
bwr.
If the lender/ss/tc became aware that a NSA was requiring bwrs to sign such a doc,
I believe that the NSA would go directly to a "no-no list" , do not pass go and
do not collect any further work

Reply by patricia on 1/10/06 10:37am
Msg #87329

Re: Refusal to notarize - an aside

it is my understanding that we have no right to add additional documents to the loan paperwork, cant imagine that a lender or title company would approve of that.

Reply by Charm_AL on 1/10/06 10:58am
Msg #87337

Re: Refusal to notarize - an aside Wendy

I do not use this. I don't think our companies would approve of that. The borrowers have already been tapped for your fee. They do have the right to cancel.
This is the SS's or TC's responsibility to pay you. There are quite a few that try to get out of paying you in the case of a rescission and put that in their vendor contracts. I just find out their policy during the initial call and make my decision then.
You may want to check with your state to see if this is legal, I'd hate to see you get into hot water over it.

Reply by Terri_CA on 1/10/06 11:58am
Msg #87366

Re: Refusal to notarize - an aside Wendy

In California the Law states that to be a "lawful" notarization, payment of fees must be made. It's one of the requirements to make it lawful.

Terri
Lancaster, CA

Reply by wendy_wa on 1/10/06 6:22pm
Msg #87444

Re: Refusal to notarize - an aside Wendy

I never said I would refuse to complete the appt. The doc I present to the borrower came from a reputable TC, I just use it now at all my appointments. And beyond any of this, I have the right to ensure that I am paid in the event the borrower cancels after the fact. Most borrwers do not hire the appraiser, but they are responsible for the cost whether or not they complete the transaction. If title and or the lender or even SS are unable to pay me because the borrower cancels, they still received a service for which I deserve to be paid. I clearly explain the document and have never had a single borrower even question it. I don't pretend it is not my own. I do not treaten to leave if they do not sign. If there is an error during the appointment, it has yet to be an issue. Usually, the error is corrected and the borrower resigns, for which I am in turn paid by the original requestor. I have never even had to call in the document, though it has only been about 8 months now that I have been using it, but why put myself out there to be taken advantage of. If the borrower has completed the transaction, and the TC or SS has been paid, the borrower would never be contacted. I would just pursue the responsible party. But if the borrower cancels the transaction, with what funds would the TC or Lender or SS pay me?

Reply by Adams_CA on 1/10/06 1:41pm
Msg #87377

I've had a couple of SSs include this form in the package, but never one that require it to be notarized. Hmm.

Reply by pan/nd on 1/10/06 5:48pm
Msg #87439

sharpnote_CA,

I would not have notarized it. Such an action where a notary would stand to gain is prohibited in North Dakota.

Reply by Anonymous on 1/10/06 9:35pm
Msg #87483

Language could be important

Notaries in my state are only allowed to charge a nominal fee. The mobile part is for printing/transporting documents. Thus, if the fee were tied to stamping, it could put one in trouble. I hate the poorly thought out documents.

I also hate the documents that says, I have verfied the identities of the borrowers and done the disbursement and then the title company wants you to notarize it since you verified the ids, but you do not do the disbursements! Ugh!. They want it notarized. I tell them to fix their dam form!