Posted by Charm_AL on 11/25/06 8:25pm
Msg #162032

Good Evening...

I hope you all had a wonderful holiday, we have loved ones in town and I have been extremely busy with EOM.
Can anyone chime in here? I'm having a heated debate on a loan issue. I was contracted, accepted, printed docs and called the borrower to confirm an 8 pm appt. As you can see I am not at the closing.
When I called to confirm, I asked if he was a single borrower as he was the only name on everything, he stated that he was married to a Japanese woman in September and she is not here yet. Is not a US citizen yet and will not be a part of this refi. States the LO knows this.
I called the TC and told them that in AL she must be present to sign certain docs as his spouse. He said sit tight and he will talk to the LO. Needless to say no one has contacted me since.
Now, my problem is, is that I have someone telling me that the info I got from the borrower is 'hearsay' and that if he was the only one on the loan, I would not have to worry about it. I, on the other hand am arguing that YES I do know he is married because HE told me so. Does this make any kind of freaking sense when the borrower, himself, told me he was married??? I am so pissed at this logic I can't think straight. So I can picture myself in front of probate in a few months and the borrower telling the judge, "gee you Honor, I told the notary I was married"! She came out and closed the loan anyway.

Reply by Teresa/FL on 11/25/06 8:39pm
Msg #162036

In Alabama does the Mortage show marital status? If you decide to close this loan, just make sure you make a notation in your journal that he told you he is married. If he signs a document that says he is unmarried, then he is liable for making a false statement, not you.

Just make sure you document everything you can in our journal and also in an email to the title company.

Of course, this is just my opinion, as I am not qualified to give legal advice.

Reply by Charm_AL on 11/25/06 9:06pm
Msg #162038

it's a CW that says I am a single man, I just can't in good conscience do it, knowing he is married, for an extra buck. But that's just me I suppose.

Reply by Larry/Ca on 11/25/06 9:31pm
Msg #162043

I think I agree with Teresa here.....

Perhaps the LO has taken care of the married issue in a way not known to you. His documents, without being able to talk to him, I think that I would complete the signing. I'm always reminding myself that my responsibility is to identify and witness the signatures of the signer. I've seen this issue raised before and agree with those that do not think we are a party to fraud for notarizing a persons signature without knowing the truth of their marital status.

Reply by Susan Fischer on 11/25/06 9:42pm
Msg #162046

Hear, hear, Larry! n/m

Reply by Charm_AL on 11/25/06 9:44pm
Msg #162047

just heard from the borrower...

he asked me if I was lost, apparentely no one contacted him. I told him that "I am a single man" is in the loan docs and he said he would not have been happy and would not have signed. I don't know what you mean by the LO took care of it in a way not known to me. AL law states spouses sign certain docs, period. How would one "take care of that"? I will not sign the borrower as single after he confirmed to me that he is in fact married. imo

Reply by Charm_AL on 11/25/06 9:47pm
Msg #162048

Re: just heard from the borrower...

this is another case of being a notary public first. I can't believe anyone would go sign docs and close a single borrower loan after being told by the borrower that the borrower is married. What's this now? Turn the other cheek and play stupid?

Reply by BrendaTx on 11/25/06 10:03pm
Msg #162056

Re: just heard from the borrower...

**he would not have been happy and would not have signed. **

Charm, Maybe your "gut" was correct???

Reply by kathy/ca on 11/25/06 10:58pm
Msg #162076

Oh, I just reread your post and it says in the loan docs "I

am a single man", kind of changes things, doesnt it! In what document exactly, did it say that?

Reply by CaliNotary on 11/25/06 10:23pm
Msg #162069

Re: I think I agree with Teresa here.....

"I've seen this issue raised before and agree with those that do not think we are a party to fraud for notarizing a persons signature without knowing the truth of their marital status."

In most cases that is true, but when a person flat out tells you they are married, then you have to assume that is the truth of their marital status. And in CA, if we know that a document contains fraudulent information then we're not supposed to notarize it.

I think Charm did exactly the right thing.

Reply by Larry/Ca on 11/26/06 12:21am
Msg #162080

Obviously, since the borrower....

didn't want to sign as a single person Charm could not do the signing. However, if the borrower did want to sign as single, and the LO/TC wanted him to sign as single, I don't think that it would be my position to refuse to let him, as I am not asked to check for satisfactory evidence of marrital status and confirm that status is correct on the documents on which I'm witnessing the signature. As I have said there could be reasons that I'm not aware of for the documents to be drawn up with him as a single person. I am not an attorney nor an investigator and am not capable of determining wether there is fraudulent information contained in the loan documents. I would never assume I actually knew the truth without satisfactory evidence. I do feel obligated to complete loan signings as requested as long as my actions comply with my States Notary Laws.

Reply by Dennis D Broadbooks on 11/26/06 5:18pm
Msg #162142

There are Two Hats a Notary Signing Agent Wears...

...one is the Notary hat & the other is the Signing Agent hat. From a Notary Public perspective in Missouri we're constantly advised by our SOS Commissions division that we're NOT to concern ourselves with the contents of the documents. We're there in a Notary Public capacity to identify the signer, administer an oath (if applicable), & affix our seal/signature to the document...nothing which even remotely resembles acting as a PI. I would however add detailed notes to my notary journal for future reference purposes as a safeguard.

On the other hand (or hat) as a signing agent I WOULD be concerned with the borrower's statement that he's now married & the docs say he's single. I'd do my utmost to try & contact the company who hired me to advise them of the circumstances. If I were unable to communicate with the company for immediate guidance, I'd still proceed with the signing (unless the borrower declines to proceed, which is what transpired with Charm), but I'd make them aware by some means (a note in the package, a phone call at a later time, an e-mail, etc) that the borrower had provided me with verbal info contradicting some of their printed documentation. Let them sort out the mess. JMHO.

Reply by BrendaTx on 11/25/06 10:02pm
Msg #162054

**it's a CW that says I am a single man,**

This is a good point! Doesn't this have something to do with the way he took title before this point? I am curious...not saying I know.

However, my other post should be more clear that I am speaking from a TEXAS standpoint.

Reply by Charm_AL on 11/25/06 10:06pm
Msg #162058

Brenda, In AL it does not matter....once you marry, your spouse has to sign the Mort, TIL and RTC, etc and any other riders in a refi. I don't care what fancy foot work the LO does.

Reply by BrendaTx on 11/25/06 10:22pm
Msg #162068

**In AL it does not matter....once you marry, your spouse has to sign the Mort, TIL and RTC, etc and any other riders in a refi. I don't care what fancy foot work the LO does.**

Then, you've probably answered your own question.

I have too much title background and once upon a time did contract work for an old lawyer who made a lot of money doing deeds and correction deeds to get titles right.

It can always be fixed (if they bother) and here it has to do with how it is on the title when the legal description is pulled and the chain of title run. The argument from people who are not thinking in terms of doing signings out in the field is that the Compliance Agreement will force this to be corrected so just get the loan signed.

The deed on the house I live in had to be redone and corrected post closing because it had the wrong condo association listed in it. Therefore, it's in the chain of title by a Deed of Correction or a "Correction Deed."

As a notary, you have to do what you feel is correct and I think you did.

Reply by BrendaTx on 11/25/06 9:55pm
Msg #162052

Re: Good Evening...How I think they are getting around it...

Charm said, "When I called to confirm, I asked if he was a single borrower as he was the only name on everything, he stated that he was married to a Japanese woman in September and she is not here yet. "

Yes, I'd have signed him in Texas.

1) One thing about Texas, an attorney has reviewed and okay'd the documents. Never my "legal" concern. An attorney has drafted them according to law.

2) The living in the house part - this may be why it is okay to sign...it's not her homestead...this would be the Texas debate, at any rate. *After* she lives there it will be a different story. It's my understanding that the non-ob sigs are for the purpose of verifying that whoever is living in the house...or who is claiming this as their homestead has the right to know that a lien has been placed on the property they could possibly call their homestead. I always go back to Mom's kid living in a house she is refinancing. She is not even living there...just him. Refi loan on it. Kid (who is 50 ish) has to sign the normal non-ob docs (TIL, RTC, DOT).

3) Attorney had reviewed and approved this as well: Similar situation with a grown daughter living in a house. Mom was there -- did not sign, but daughter signed. LO was there. I was inside a title company. I asked and suggested perhaps non-ob spouse should also sign??? She didn't. Mom and Dad were maybe not legal immigrants/only reason I say is b/c they did not speak English fluently and I had a title company translator using my words to explain...but daughter was definitely a citizen...daughter definitely spoke excellent English and Spanish...my understanding of Spanish is decent enough on loan docs I know this loan was explained and in my own words...if not me, the daughter they brought to the table was, and the man was the one getting the cash out. (Went into all that for those who get freaky over English notary for Spanish speaking signers.)

Don't know if citizenship had anything to do with it or not. I just know the LO and title was there...not my call. I just notarized.

3) Also, if there is a pre-nup, she may not need to sign.

4) Finally, it's title a$$ in the sling. It would not concern me if title or lender would send me a note saying to close anyhow as it is not my problem if they do not have to have a non-ob spouse's signature by title's underwriter's requirements. It's the title company who is trying to insure the title for the lien.

This is off the top of my head...if there is more to it than this, please correct me.

Reply by SueW/Tn on 11/25/06 10:02pm
Msg #162055

And to add additional fuel to an already smokin' fire

I did a CW for a friend about 8 months ago, he and wife had pre-nup....CW didn't care and we had to have her sign. On a more personal note....in another century when I was married my then hubby did a refi, they didn't allow me to sign any docs because the home was his PRIOR to the marriage therefore they said it was "exempt" from the spousal docs. (This was in California) and later on, during the divorce, my attorney also backed it up. I had NO legal claim as it was his home before the marriage. I did get a % of the equity BUT only because I could show contributions to the marital account. Just additional food for thought....

Reply by kathy/ca on 11/25/06 10:55pm
Msg #162075

I have come across this in CA, if the property was owned

prior to the marriage, some title companies do not have the spouse sign anything, most do have the spouse sign some of the critical docs, but not always. Sounds like from what you are saying, this is not the case in Al.

Reply by Cheri Armentrout on 11/25/06 10:03pm
Msg #162057

Re: Good Evening...How I think they are getting around it...

well, in AL an attny does not review and ok it. It's up to me to have this info which was freely given by the borrower. I know the state laws, no one can fix or bend them to their desire or pocketbook requirements.
I refuse to stand up in a court of law in a year and lie about not knowing he was married. Not to mention that it would have been a waste of my time because he stated that he wouldn't have signed a a single man, can you imagine the grief if he was called upon for it, had he signed ? Why am I not getting or agreeing with what ya'll are saying?

Reply by BrendaTx on 11/25/06 10:08pm
Msg #162059

Re: Good Evening...How I think they are getting around it...

I only mentioned the attorney part because if I were to call the SOS in Texas and ask them this question they would tell me not to question what an attorney had okay'd because then I'd be in it with UPL.

We all know that's not exactly right....but...like I said, that's Texas.

Your gut is probably right...however, I'd like to hear from a Titlegal or a Paul W on this one.

Reply by John_NorCal on 11/25/06 11:12pm
Msg #162077

This is an obvious case of knowing your state law,

Charm certainly knows her state law. The point that can be made here is to know your own state law and don't try to use procedures from other states to take care of your situation and you sure don't want to be party to something that is fraudulent. As Charm said she would look awfully foolish standing in front of a judge while the borrower said, "but I TOLD the notary etc, etc, etc."

Reply by ReneeK_MI on 11/26/06 5:41am
Msg #162084

precisely, John ... and kudos to you, Charm

We should all have a working understanding of our state laws - not so that we can interpret or apply them (except, of course, notarial laws), but so we can head off train wrecks by giving t/c's and lender's a head's up so that THEY can make decisions, particularly about spousal issues.

This was not a 'spousal' issue. This was a cut/dried matter of Charm being presented with ADMITTEDLY fraudulant statement(s) on at least one doc she would have been notarizing (the mtg/dot). Charm - my opinion is you did the right thing, and exactly what I would've done in that situation. (You would probably find a few other notarized docs that would've come into play also - Owner/Mtgor's Affidavit, title Affidavits often ask questions that would pertain to this.)

The comment made about the borrower's OWN admission being "heresay" is bs, who are they trying to kid besides themselves?

Now - had the mtg stated "a MARRIED man" and the t/c said "spouse doesn't need to sign" - THAT is a totally different subject. In that instance, in comes the UPL Monster, and no matter what we might 'know' about our state laws, it is NOT our job to interpret/apply them. We would give them a gentle head's up - but it's THEIR decision.

Reply by Brenda Stone on 11/26/06 10:13am
Msg #162099

Re: precisely, John ... and kudos to you, Charm

Again, I think this is a good thread for discussion and the kind we should definitely discuss on this board.

To be clear, no, it is not correct to notarize a document that has fraudent information in it. I stand corrected as the to married vs. single part in Charm's case and this applies to Texas, also.

Now, how to I bow out gracefully from this? I can't. I'm "caught" on this issue for all practical purposes and I have said enough on a public board.

If I continue, I'll sound as if I am not upholding my laws properly and then argue myself into a corner on the "dark side" that says signing agents should not be allowed to do signings in a home away from the title company or law office where these things can be corrected immediately and approved during office hours before the borrower completes the signing.

So..."Further, your 'affiant' says not!"

Reply by kathy/ca on 11/26/06 10:21am
Msg #162101

Renee very well put looks like this is one we all agree on!

Good going Charm!

Reply by MikeC/NY on 11/26/06 7:45am
Msg #162088

I don't know about other states, but in NY notarizing a document that you know contains false information is a felony. If the guy tells me he's married, and the document says he's not, I can't notarize it, period. If the TC insisted, I would just tell them to find some other notary willing to risk 4-7 years with Bubba as his new best friend...

Whether it's hearsay is for a lawyer to decide - the hearsay rules are complex, but they only apply to statements used as evidence in court. There are situations where a direct admission to you could be considered hearsay; it depends on what the statement is being used to prove and the conditions under which it was made. Personally, I wouldn't worry about whether it could be considered hearsay - if he tells me A and the document says B, I would decline to notarize.

Reply by Ernest__CT on 11/26/06 2:17pm
Msg #162125

As most other people have said, ...

... Charm did The Right Thing. The borrower stated that he is married. Notarizing his signature on a document in which he says that he is single would be downright illegal.

Reply by Larry/Ca on 11/26/06 7:26pm
Msg #162148

Not necessarily so......

borrower can say he is married and have no idea that his marriage is not recognized by the state he is borrowing the money in, for whatever reason. Perhaps the LO is an attorney and realizes this and decides that the documents need to be drawn stating that he is a single person. As a notary any opinion of mine and actions based on that opinion would certainly be UPL. Notarizing a signature on a document which says that the signer is single when at the same time he states that he is married may seem 'downright illegal' but perhaps not. What if his attorney advised him to sign this as his marriage is not recognized by any government enity. I am a notary, not an attorney, and never ask for proof of marrital status before I witness a signature on a document that states marrital status.

Reply by Charm_AL on 11/26/06 10:43pm
Msg #162183

Re: Not necessarily so......

no attorney, just a simple refi, as I stated, he did not know the paperwork said "a single man". He would not have signed them in the long run.
There is no recognizing needed, the state has no reason not to 'recognize it". He's married, period. To tell me he's married and refusing to sign docs that say single has nothing to do with my practicimg UPL.
I will not sign and notarize docs that are fraudulant. No matter how you want to spin it. It's not worth the $125. to answer for this in the future. You may turn the other cheek and play stupid or come up with any excuse to go make your buck, but I plan to be a notary public fro a while.