Posted by Cindi_TN on 4/6/07 6:13pm
Msg #184021

Alvarado Group, Nationwide Signing Agency

Hey guys. Haven't posted in awhile, but have been around. Received a signing request from Alvarado Group in Riverside, CA. This is a new company for me and I checked prior G/B/U's. My question is that they have an amendment stating that if the borrower cancels they are responsible for my payment. I'm not really comfortable with this, how do you feel about this?
Thanks for your responses and have a great Easter holiday.

Reply by PL on 4/6/07 6:33pm
Msg #184025

Your contract is not with the borrower

it is with the SS. I don't and will not go after the borrower if there is an issue. I go after the entity I have a contract with.

Reply by Lee/AR on 4/6/07 6:35pm
Msg #184027

Weasel-talk. You have a contract with whoever hires you. The B did not hire you and I very much doubt that you will be able to collect from the B under any circumstances.

Disclaimer: I am not a lawyer but I know a few good ones and they tell me I'm right. May vary by state.

Reply by Cindi_TN on 4/6/07 6:40pm
Msg #184030

Thanks for your replys. As I stated earlier, I'm not comfortable with this and have never had this amendment included in the package. So my question is, if this is a company that appears to have a good rating (according to responses per the search) and someone you have never performed for, how would you handle this?
Thanks again.

Reply by DebbieT on 4/6/07 7:07pm
Msg #184032

I believe this is Mobile Docs. I just received a check from them and it had that name as the business on it.

Reply by Cindi_TN on 4/6/07 7:22pm
Msg #184033

Borrower responsible for payment

Thanks for the replys thus far, must be alot of busy folks tonight. I think my question is answered, right or wrong, I'm not comfortable with a clause that states that the borrower is responsible for payment if they cancel. Based on the type of loans, loan terms, etc., I'm not buying that clause so I've turned it down. I regret that I may have burned a bridge with a good company but that "still, small voice inside", tells me "not good".

Have a good night.

Reply by BrendaTx on 4/6/07 8:04pm
Msg #184037

Re: Borrower responsible for payment - Cindi -

I love the "still, small voice inside!"

Ain't it the truth.

Reply by Kim_CA on 4/6/07 11:46pm
Msg #184059

Re: Borrower responsible for payment

Hi Cindi,

I've never worked with this company so I can't offer any insight about them, but I believe that you can't go wrong when you listen to the "still, small voice inside".

Take care,
Kim

Reply by Karen Burch on 4/8/07 6:52pm
Msg #184216

Re: Borrower responsible for payment

Believe me when I tell you "That is one bridge you want to burn".......... She is a smuck.......

Reply by SueW/Tn on 4/7/07 3:14pm
Msg #184136

Hi Cindi

I did one for this group about 18 months ago and I remember the form you're talking about. I didn't present it to the BO's, sent it back completely blank, no one signed it and was paid within 10 days. I have seen this before with a couple of other companies and I don't even address it in my presentation because I feel it's just plain wrong. No one has ever questioned me about it, it's like that infamous "all purpose ack", I send that back too and never have heard a peep about it.

Reply by BrendaTx on 4/6/07 8:02pm
Msg #184036

Ignore that and go after Alvarado if you find cause for it.

Signing services who operate like that forgot to consult an attorney, IMHO.

Reply by Kevin/Ct on 4/7/07 6:17am
Msg #184063

You do not indicate whether the amendment is an amendment to the contract or to the ss confirmation.

If it is an amendment to the written contract, it would be wise to have the ss and the borrower both sign it in addition to your signature. All of you then become parties to the contract, and it is enforceable against all three parties.

If you do not have a formal written contract with the ss, you have an oral agreement for the rendition of your services. The confirmation is evidence of the terms of that oral agreement.

Your contract (oral or written) is with the ss. However, if you accept the assignment under those circumstances, it could be argued by the ss that you have waived your claim against them in the event of cancellation. It is unlikely that you could collect from the borrower unless the borrower were also a party to the contract for your services in addition to you and the ss.

There are other contract law theories such as unjust enrichment under which you could seek payment from the borrower, but it would not be a particularly strong argument unless you could prove that the borrower accepted your services under circumstances in which he knew or should have known that you expected him to pay you.

The best course of action would be to request the ss to strike that paragraph from its confirmation/contract.

Reply by Ernest__CT on 4/7/07 6:52am
Msg #184066

Thanks, Kevin/CT! n/m

Reply by Lee/AR on 4/7/07 8:56am
Msg #184075

Kevin... the doc I have been seeing

is part of the Loan docs; not the Order. It is with the 'title docs' and has 2 statements included. Paraphrasing here: B acknowledges full responsiblity for notary fee should loan cancel or not close and releases & indemnifies (Title co.) The notary's fee is not stated nor is there a place for the notary to sign this. And for us to add anything would be UPL.
Second statement on this doc only acknowledges receipt of the RTC.
It seems to be a pretty cheesy attempt to get out of paying the notary after blind-siding both the notary and the B. This has been 'used' on me--unsuccessfully--as I did receive payment from Title, but had to 'discuss' it with them quite a bit.

Reply by Kevin/Ct on 4/7/07 9:57am
Msg #184086

Re: Kevin... the doc I have been seeing

Lee, that is an excellent question. It is a slight variation from the original post, but certainly deserves attention. I have run into this document only twice in the past 3 years...both were in connection with reverse mortgages.

In the original post above the question related to the attempt of the ss to shift the obligation of payment to the borrwer when it was questionable as to whether the ss had brought this to the attention of the borrower. Without that having been done...it is most likely unenforceable against the borrower.

In the scenario that you have described we have a different fact pattern. If it is the same document that I have seen, it is prepared by the lender or the TC. It requires the borrower's signature, and it is expressly brought to his attention in the course of the closing. In this case, I would say that the borrower is in fact secondarily liable to you for payment in the event of cancellation. However, the question remains as to whether he may be unwilling or unable to pay you. The benefit is that he is local, and you can take him into small claims court. The down side is that he may have no assets to pay your judgment...you can't get blood out of a stone. You may want to discuss this matter with the LO when you receive a document like this, and express your concerns to him.

Reply by DD/OR on 4/7/07 1:52pm
Msg #184121

Your view is the closest to mine, with exceptions. I believe all 3 entities have a contract with the notary. I believe any one of the 3 entities are ultimately responsible for payment. When a BO agrees to have the notary come to their house, by their action, they have made a contract with the notary and made themselves liable for the fee. In my opinion, that fact alone is a contract. Same for the Title company. By accepting the returned documents, they are also making a contract with the notary and accepting responsiblity for the fee. Same for the SS. It would be interesting to see how a judge views all of this. The judge would know that all three entities benefited from the notary's labor. I wish there was a real court case so we could see the outcome. I'm not an attorney but this is just my MHO.

Reply by Lee/AR on 4/7/07 2:05pm
Msg #184124

I respectfully disagree with you. A 'contract' is formed from Lender to Title, who sub-contract to SS, who sub-contract (via an Order) to the Notary. The Borrower is not a party to any of these 'contracts'. I truly believe we'd get laughed out of court. And I'd love to be corrected by a lawyer, but my AR legal counsel says 'don't go there'.

Reply by DD/OR on 4/7/07 2:24pm
Msg #184126

Lee, I hear what you're saying, but that's just on the surface. I don't know if I can explain what I mean. What is on the surface doesn't necessarily mean that is the way a judge will rule in a court of law. I wish there was an actual court case to refer to. There may be. Maybe I'll do some research.

Reply by Kevin/Ct on 4/7/07 2:24pm
Msg #184125

An argument might be made that the ss is the agent of the TC and the TC is the agent of the Lender, but that would be your burden of proof. Not all contractual relationships result in an agency relationship. Even if there were such an agency relationship between these three, it would depend on the scope of the agency among them and if they were aware that there were sub-agencies being created. If anyone of the three exceeded the scope of the agency the other two would not be liable as principals in an agency relationship. Again that would be your burden of proof. Lacking any agency relationship among them...your contract (written or oral) is with the party that hired you. Read the confirmation carefully, and have inappropriate terms sticken. It will save you a world of trouble with a delinquent client.

Other than a claim for unjust enrichment (which would also be a stretch), it is difficult to see how the borrower could be liable for your fee if he was unaware of an obligation to make payment, the amount, the duties for which you were hired and the date payment was due. The ss, TC's and LO's are notorious for not keeping in touch with borrower.

Reply by Kevin/Ct on 4/7/07 2:27pm
Msg #184129

Attorneys are in a little better position as far as Connecticut is concerned they have a common law lien on the file until their fees are paid. The lien travels with the file, and each party in the chain takes subject to the lien. The lien extends to the proceeds that each party in the chain receives for work performed on the closing. Ultimately the attorney can enforce the lien against anyone in the chain who has come into possession of the file and earned a fee for the closing in question.

Reply by DD/OR on 4/7/07 2:30pm
Msg #184130

Kevin, the BO knows that they have to pay a notary fee because its on the settlement statement. I still have to contemplate on the first part of your post before I can comment on it. Your post is interesting. Respectfully, DD

Reply by Kevin/Ct on 4/7/07 2:47pm
Msg #184134

He knows that a notary fee is to be paid...does he know the terms under which the notary was hired by the ss?...did the ss exceed the angency if there were any? ...Did the ss impose additional terms on the notary of which the LO was not aware and for which the ss was not authorized?All of these issues and more come into play when you are trying to enforce a contract against a party other than the one that hired you.

Third party beneficiary theory would not work in Connecticut unless the notary were clearly identified in the agreement . I litigated a third party beneficiary case not to long ago. The first thing the court looked for was whether my client was identified in the contract. Fortunately it was. we won on that basis because my client was the intended beneficiary of the contract. Had my client not been identified by name my client would have been only an incidental beneficiary, and the outcome of the case would have been much different.

Reply by Gina/OPNot on 4/7/07 5:36pm
Msg #184146

If I were you, I would not accept any ASSIGNMENTS from this company. I have sent her to collections. You will not be paid if the loan does not fund and since this person already owes monies to other notaries, why would you want to work for her. Take your chances.

Reply by Karen Burch on 4/8/07 6:59pm
Msg #184217

That is one bridge I would have been glad to burn, had I know her history.....

Reply by Shannon_Va on 4/8/07 10:20pm
Msg #184224

I did one for them back the end of January and it didnt close. I got to borrower's home, and we went over the HUD, then the note. She wouldnt sign anything. She said the LO lied to her. That the loan we were signing wasnt what he told her it would be. So so sign. And I got no pay. I have emailed, faxed and called. Nada....

I never worked for them before that one, and I never will again!