Reply by lonestar_tx on 7/13/06 8:11am
Msg #132893
SC Attorney State-SC Notaries can do out of state work
False. SC law specifically says only a licensed SC attorney may conduct a real estate closing on SC property. A SC notary can do closings on property, so long as it is not SC property.
SC Attornies are no longer willing to perform what they deem a courtesy/witness only closing, as they risk their bar card/reprimand/fines, should the UPL board find out. Notaries may not conduct any type of closing on SC property - the lawyers have it all sewn up.
There is a situation called a "mail away". The notary, borrower and attorney must all have a copy of the loan docs infront of them, so everyone can follow along, while the attorney goes through the documents. Typically, this occurs when the borrower is not in SC, and so the SC attorney is "present" during the phone call. The notary will then witness the docs and ship the completed docs back as usual.
Borrowers must be given an opportunity to select the closing attorney and the provider of insurance coverages. If they express no preference, they may be guided by the lender, real estate agent, or other party. A Preference Selection form should be a part of all loan packages. (SC Code 37-10-102). Borrowers can demand closing by the closing office of their choice! The lender must abide by your choice, so long as that attorney is qualified.
Our SC Supreme Court continues to make it abundantly clear that all stages of a real estate transaction must be under the direct supervision of a South Carolina attorney. These stages are: (a) Title search and subsequent preparation of certification documentation; (b) preparation of loan documents; (c) supervising the closing and providing advice to the buyer/borrower; (d) recording legal documents; and (d) disbursement of funds. Our associated attorneys assure that the requirements of law are met; and that both lender and borrower are properly represented. "Witness-only closings" common in other States, where only a Notary Public may come to borrowers' home for signing, are prohibited in South Carolina. (State v. Buyers Service, 292 SC 426, 357 SE2d 15; Doe v. McMaster, 355 SC 306, 585 SE2d 773; In the Matter of Fortson, SC Supreme Court Case 25898; and In The Matter of Boyce, SC Supreme Court Case 25985.)
Title in South Carolina is held as tenants-in-common. Basically, this means that an individual may hold title in his/her own name, regardless of marital status. If a husband and wife choose to both own the property, they each own a one-half interest in the property (unless specified otherwise), and even after death or divorce title is still owned 50%/50%.
As long as all of the owners of the property sign the Mortgage, whether 1 or many, lender has a valid lien on the real estate. Only 1 owner may be the financially responsible party (loan applicant), signing the Note and other loan documents; but all owners sign the Mortgage.
Conversely, both husband and wife may be loan applicants, based on combined income, but title to real estate is held by only 1 of them. Both parties will sign Note and other loan documents, but only the 1 vested owner is required to sign the mortgage to give a valid lien.
Owners of property living outside South Carolina, who do not regularly file South Carolina income tax returns, are subject to 7% withholding tax against the gain at time of sale of South Carolina property. The Buyer is required to deduct this tax and transmit it to the South Carolina Department of Revenue; thus it is part of the closing transaction.
Proper execution of a legal document for recording in South Carolina requires 2 independent witnesses (one of whom may be the Notary), in addition to a uniform Notary Acknowledgment, or our unique South Carolina "Probate", signed by one of the witnesses and a Notary Public.
If an Owner has an existing Owner's Title Insurance Policy, it can save them time and money on new transactions. Title search is reduced to cover from date of policy forward. If the policy is less than 10 years old, premium for new policy is discounted.
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