Posted by LynnNC on 8/2/08 2:41pm
Msg #258271

UPL - Technically speaking

Twice during the past year, attorneys in North Carolina have unsuccessfully attempted to legislate that it would be an attorney-only state. Their main argument was that notaries were involved in the unauthorized practice of law when closing home loans.

Ever since then, I have been particularly careful that I not do so. There are several things that I believe many NSA's do that are technically the UPL. Practices that come to mind are:

Choosing what documents a non-borrowing spouse must sign when his/her name doesn't appear under signature lines - I now call title for confirmation and follow up with an email listing those that should be signed by a non-borrowing spouse and get written approval. I send a copy of the confirming email with the documents.

Owner/Borrower Affidavit of Liens and Encumbrances - borrower must complete, even that section on the Countrywide affidavit where current mortgage loans must be listed - I used to get the information from the form following the 1003 in the Countrywide package and filled in that information on the Affidavit.

Documents containing blanks that need to be notarized – information must be written in blanks by borrower. I don't tell them what to write, but, say, "you might want to write...".

Loans where there is a power of attorney or trustee– if the proper form of notary certificate is not included, the borrower must choose the correct form. I have title approve the correct form of signature for the AIF or trustee if it is not included under the signature line, and get written approval.

Perhaps I have become a bit paranoid, but, my livelihood depends on this business!

Reply by Roger_OH on 8/2/08 5:06pm
Msg #258284

I don't think it's UPL to know what docs are typically required for the non-borrower to sign. This knowledge falls under our signing agent hat, and companies expect we know this.

Reply by Sylvia_FL on 8/2/08 7:18pm
Msg #258293

According to the counsel at the Florida Bar if a non-borrowing spouse's name is not printed under a signature line and I have no specific instructions for the non-borrowing spouse to sign anything then it is UPL for me to have the non-borrowing spouse to sign. There are some circumstances where a non-borrowing spouse wouldn't have to sign the "legals" and it is not up to me to determine that the non-borrowing spouse should sign anything.

Reply by Sylvia_FL on 8/2/08 7:21pm
Msg #258294

Meant to say that was from the Bar Counsel, UPL department, Headquarters. I asked him several years ago.

Reply by Linda_H/FL on 8/2/08 8:05pm
Msg #258302

I was just told by a SS the other day that, although the NOBS name was not printed under a signature line on the Affixation Affidavit, and I had no specific instructions to have her sign, since the Affidavit was cited in the mortgage as an attachment as being attached to the mortgage I should have KNOWN that it needed to be signed by her....I argued but did the revisit on my dime just to get it done....not sure it'll be sufficient though because I didn't backdate it...

Reply by Sylvia_FL on 8/2/08 8:55pm
Msg #258305

I would have told the SS to send you instructions in writing (e-mail) to have the spouse sign.

If the non-borrowing spouse's name was not under a signature line, even though I knew he/she needed to sign I always called the title company and asked them if they wished him/her to sign just to CMA. Once I was told No the spouse wasn't required to sign, so I left it at that.

Reply by Maureen_nh on 8/2/08 10:43pm
Msg #258308

They are CYA but normally the non-borrower signs the mortgage and ALL riders.
I think that is what you ran into.
Check on the usually second page and there will be a list of riders. If one is checked off and present in the pkg, the non-borrower should sign.

Reply by Doris_CO on 8/2/08 11:39pm
Msg #258309

And that's LynnNC's point. We're going through a package and making decisions that are not our responsibility, whether as a witness to the signing (NSA) or as the notary.

Reply by Maureen_nh on 8/3/08 6:49am
Msg #258313

I would not have them sign unless directions were "Mortgage and all riders"
In some instances where the RTC for example, is not preprinted I do call my contact to clarify.
There are times where an error is made in preparing the docs and if you are in a spousal state you "know" what is usual and customary.
But yes, it is always best to check and you could be saving the lender and borrower time and inconvience.

Reply by LynnNC on 8/3/08 9:22am
Msg #258317

I had a closing last week where the NBS was on the DOT, but her name wasn't under a signature line on any of the documents. I emailed a list of what I believed she should sign to title and had them confirm.

The list was: DOT, Rider, TIL, Itemization of Amt. Financed, RTC, Sig Name Cert, Owner/Borrowers Aff, and Owner Aff. I sent a copy of the email back with the documents.

I also had a closing with a Power of Attorney where they did not include a copy for my information and the proper form for the Attorney-in-Fact's signaure was not provided. I wanted a copy of the P of A to determine how their names were typed so they would be correct on the docs and notary certs. I also had title approve that the AIF would sign: Jane F. Doe by James C. Doe as her attorney-in-fact and initial JFD by JCD. I sent a copy of the approval of the proper form of signature back with the documents.

Reply by MW/VA on 8/3/08 9:23am
Msg #258318

They may be using alleged UPL as an argument to prove their case. It's about the money they aren't getting since notaries are doing closings. The NNA has been very active in keeping NC a notary signing state--hooray!

Reply by BrendaTx on 8/3/08 11:50am
Msg #258323

*The NNA has been very active in keeping NC a notary signing state--hooray!**

What has the NNA done for NC?

It would be nice not to have deep regrets for the rest of my life for having contributed via a membership once upon a time.

For the most part, they sicken me.

If you have a source for your statement, please share.

Reply by LynnNC on 8/3/08 1:29pm
Msg #258328

NNA actually was very active in keeping NC a notary signing state. They communicated with the Senate committee that reviewed the legislation, reasons why notaries should be able to handle closings and why attorneys should not have more control. NNA encouraged notaries to take action and gave us samples of what to write. There was a great deal of action on the part of notaries in the state, and the bill was eventually killed.

Reply by BrendaTx on 8/3/08 3:12pm
Msg #258332

thank you, Lynn...according to early posts

on this board, they did nothing while Georgia changed.

Surprising.

I will now pretend that that's what my dues went for.

Reply by LynnNC on 8/4/08 7:17am
Msg #258383

Re: thank you, Lynn...according to early posts

They tried to pass legislation, but, were not successful.

Reply by NCLisa on 8/3/08 3:22pm
Msg #258335

The NNA did help a little, but took far more credit than they deserved. The bill died because it was not supported by the NC State Bar. It was brought forth by the State Bar Association, which is not the State Bar!

Reply by BrendaTx on 8/4/08 8:14am
Msg #258387

"more credit than they deserved" - as usual IMHO n/m

Reply by Carole Breckbill on 8/5/08 1:33pm
Msg #258621

Why is it in their interest to do so?

Reply by MikeC/NY on 8/3/08 1:00pm
Msg #258326

"Documents containing blanks that need to be notarized – information must be written in blanks by borrower. I don't tell them what to write, but, say, "you might want to write...". "

What's the difference between telling them and making suggestions? If they make a decision based on something you say to them, whether it's a direction or a suggestion, it COULD be construed as UPL... ("Well, your honor, the notary thought it would be a good idea if I..."

You're better off not saying anything at all beyond the fact that they need to fill in the blanks, even if what's required is obvious to you. If they don't know what to write or don't understand the question, have them check with the LO.

Reply by Maureen_nh on 8/3/08 2:41pm
Msg #258331

I do suggest that if they don't know an answer i.e. when was the survey done that they write unknown or if something is not applicable that they write n/a. I don't think that is UPL and it saves leaving blanks on notarized docs--which isn't allowed.

Reply by LynnNC on 8/4/08 7:24am
Msg #258384

It is hard not to say anything with the Owner/Borrower Aff. I tell them to look at the questions, and that it says to write "None" if they don't apply...the last question has to do with a sale and if it doesn't apply, they might want to write N/A. I have never had a closing where either of the choices on the Survey Aff apply. On the Countrywide Aff which requires the current loan info., you really need to expain what goes in the blanks and find it for them on the list of real estate following the 1003.

Reply by MW/VA on 8/4/08 9:40am
Msg #258394

On the UPL issue, here is a quote from the Virginia Notary Law Primer, published by the NNA.
Under the topic of "Unauthorized Practice of Law", the first part covers "Do Not Assist Others with Legal Matters". It is followed by "Exceptions", which reads as follows: "Nonattorney Notaries who are specially trained, certified, or licensed in a particular field (e.g., real estate, insurance, and escrow) may advise others about documents in that field, but in no other.
In addition, trained paralegals under the supervision of an attorney may advise others about documents in routine legal matters." I haven't read anything, anywhere that says I can't explain the purpose of the document to the borrower. What I can't do is advise them if the loan is in their best interests, etc.

Reply by LynnNC on 8/4/08 1:58pm
Msg #258453

You can explain the purpose, but, telling them how to fill in the blanks in an Owner/Borrower or Survey Aff could be a problem.

Reply by MikeC/NY on 8/4/08 6:36pm
Msg #258502

"It is hard not to say anything with the Owner/Borrower Aff. I tell them to look at the questions, and that it says to write "None" if they don't apply...the last question has to do with a sale and if it doesn't apply, they might want to write N/A. "

And that's fine, because you're not overstepping any bounds. I may have misunderstood your original message; it seemed like you were helping them fill in the blanks, but I don't think there's anything wrong with saying "if it doesn't apply, just write N/A"

"On the Countrywide Aff which requires the current loan info., you really need to expain what goes in the blanks and find it for them on the list of real estate following the 1003."

I'm not familiar with that aff - it hasn't been in any of the CW loans I've done - but I think as a general rule of thumb we shouldn't be helping them fill in ANY form, and that includes helping them locate the information they need. It's just not in the job description. 99% of the time it would probably be no big deal, but that other 1% could be a real bear... If you help them find the info and miss something in the process, and that either delays or prevents the loan from funding - ouch.