Posted by Roger_OH on 5/28/08 1:44pm
Msg #249016

Missing Mortgage?

Did a signing Saturday for a nice older couple. Get a call from the TC today saying that the mortgage was "lost" en route to recording, and of course they wanted me to go back out to just do another MTG and date it the 24th. They were disappointed at my refusal.

I wouldn't think a mortgage would be sent for recording until the RTC period was over, which in this case goes thru the 29th? Doesn't smell right at all.

Reply by Susan Fischer on 5/28/08 1:47pm
Msg #249019

Someone spilled coffee on the docs? Oops. n/m

Reply by sue_pa on 5/28/08 1:55pm
Msg #249021

they might have sent it to their abstractor to hold for recording when it's time

Reply by MW/VA on 5/28/08 4:19pm
Msg #249060

The tc usually does record the DOT during the RTC period. Most companies aren't going to fund until the DOT is in place--would you??? Also, needing to re-sign docs for a date when all the docs were originally signed is not back-dating, IMO. I imagine they were "disappointed" by your refusal. I would have felt it was my professional duty to help get it corrected. I have some companies that have two DOT signed as standard procedure, so there is always a backup copy.

Reply by SoCal Signing Co. on 5/28/08 4:43pm
Msg #249069

Seems to me they could of easily asked you for an all purpose acknowledgement due to some imagined reason, but they seemed to be honest enough to say it was lost.

I had an escrow company say, their UPS shippments for 1 day were stolen and these were all Mortgages and DOT's out for recording. They had to have them all re-created by borrowers and signing agents.

I was told that every signing agent agreed along with the borrowers to re-create these documents, when the escrow agents spoke to each of them.
Not sure what the alternative would be if the SA says NO.
any thoughts?

Reply by GA/Atty on 5/28/08 4:45pm
Msg #249072

They would call another SA, probably. n/m

Reply by BrendaTx on 5/28/08 8:40pm
Msg #249115

Re: Missing Mortgage? Lisa, what would you do?

The notary shouldn't be put in that position.

IMHO there is a way to handle this correctly, but it has to be done by someone other than the notary.

The "folks in charge" need to man up and add language to the effect of "It doesn't matter what date this is signed and acknowledged, the effective date is May 24, 2008."

There are ways to do it properly. It would be perfectly fine to do that "legally" if they were in Texas. It might not look as pretty, it might not be what the lender wants, but it would be effective.

Disclaimer here. I'm not a lawyer or even a college graduate. Don't ever assume what I say is "right".

The notary doesn't have to date incorrectly to fix it. Sometimes, even the people making the big bucks make errors...or docs get lost.

The easy fix is to have the notary break the rules and hope and pray nothing happens.

Reply by GA/Atty on 5/28/08 4:43pm
Msg #249070

I have never heard of anyone recording DoT before recission

period has expired, nor have I ever read any closing instructions that suggested it should be done that way.

Reply by Derrick/MT on 5/28/08 4:59pm
Msg #249078

No mortgage company or bank that I know of would ever record the DOT or mortgage until after the RTC. Why would they go through the process of paying the fee if it was cancelled and why go through the process of removing it if it did cancel during the RTC.
Am I understanding you correctly when you say that it would be ok to go back and have the DOT/Mortgage signed and then notorized for the original date of signing? When you notorize something you are stating that you witnessed their signature on that specific date. I would be back date if done differently.

Reply by Doris_CO on 5/28/08 5:24pm
Msg #249083

I worked for a finance company and our policy was to have the DOT recorded before funding. As a matter of fact, if the Account Executive forgot to give the loan package to us right after the signing, they had to make a special trip to the recorders office to have the DOT recorded before funding could take place. Of course, if the borrower canceled before funding we had to jump through hoops to get the DOT unrecorded.

Reply by SoCal Signing Co. on 5/28/08 6:26pm
Msg #249092

I doubt it was actually going to recording at that exact time, however it was on the way to that department. Losing these does happen

Reply by MW/VA on 5/28/08 7:43pm
Msg #249106

According to his post, he did the signing on that date & had notarized on that date.
All he would be doing is re-creating the DOT that was executed on that date. The bigger problem would occur is he wasn't the one going back, and another notary wouldn't be in that position.

Reply by CopperheadVA on 5/28/08 8:09pm
Msg #249114

MW/VA, you are incorrect that we can re-create docs or notarizations in Virginia. We absolutely cannot.

I was challenged on this when EFS went under and another TC took over the deal that was supposed to fund the day EFS closed its doors (EFS office had the original DOT and office was closed up). The new TC insisted that I go back out and have the replacement DOT signed and notarized for the original date. I said no can do. They insisted. I offered to contact the VA SOC and if they said it was OK, then I would comply. As expected, Betsy Anderson at VA Sec of Commonwealth Notary Division said that would be considered backdating and is not allowed.

Reply by sue_pa on 5/28/08 8:53pm
Msg #249116

Our SOS and our state notary association both say you cannot 'reacknowledge' a document. I've run into this type situation several times throughout the years and checked with both organizations several times - same answer each time.

I'm guessing the 'loose ack' scenario we see mentioned so often on these boards isn't quite up to par in most states.

As for recording prior to the RTC passing - when I worked in an office we NEVER would have recorded. As someone else stated, Beneficial/HFC does/did. They sure would be glad it was never a Mortgage of mine that was recorded prior to the RTC should I have chosen to cancel. As for teh one who says get it preppred and sent to the recorder to hold until the proper date - are you kidding? That sure wouldn't fly here - no recorder would 'hold' docs and then wait for the okay to file on a certain date.

Reply by CaliNotary on 5/28/08 9:11pm
Msg #249124

"Also, needing to re-sign docs for a date when all the docs were originally signed is not back-dating, IMO. "

Well your opinion is wrong.

This is basic, basic stuff, you're a terrible notary if you think it's ok to watch someone sign a document in front of you on the 28th, and then complete an acknowledgment that says they signed it on the 24th. You're not notarizing the signature you witnessed on the 24th, you're notarizing the one from the 28th. We don't notarize documents, we notarize signatures. Why do you not already know that?

Reply by Susan Fischer on 5/28/08 6:31pm
Msg #249095

Apologies to all for my flippant post. You who are/have

been in the trenches know much more than I about the path these docs take once received back from us.

It must be a madhouse out there sometimes.

I was just a stupidhead.

Reply by NancyOR on 5/28/08 6:41pm
Msg #249096

It's very common for the closer, shortly after the signing, to send the original Deed of Trust through the internal recording department (where they check to make sure the acknowledgement is correct, legal attached etc.) and then to the county recorder "on hold" until the recission period is up, then we give the ok to record.

Reply by SoCal Signing Co. on 5/28/08 7:07pm
Msg #249102

so the question is this, if it was lost or coffee was dropped on it Susan
as a signing agent, who knew it was signed by the borrower and yourself... would you re-create this document.
or would you say No way?

Reply by Susan Fischer on 5/28/08 9:38pm
Msg #249127

Aye, there's the rub. Because the docs aren't pretty

anymore?

Nope. Just gives them character.

Documents were lost in a fire?

Nope. Luck of the draw. A risk.

Documents not accounted for in the paper flow?

Nope. Could eventually show up. Say, in court. Two originals?

Can I attest to the chain of custody of the original documents and oversee the total destruction of the original documents of which I am reproducing?

Nope. It's not the same as a boo-boo replaced by a clean doc from the stack on the table.

Can I swear under oath in a court of law "that the document presented was signed on the day ascribed on the document?"

"I can. It's noted in my journal, right here. I was there on that day, at that time, when we signed and stamped. I can swear to that."

"Have you ever 'recreated' docs, for whatever reason, after the fact?"

"Nope, I politely refuse such requests."

The fact that the documents 'disappeared' is moot. If the lenders/title cos manage to loose the docs, it is not encumbant upon the borrowers and the notaries to make things right in violation of law. Any financial loss should be born by the negligent party, and the borrower should be made whole. It's called accountability.

One time, the prosecution delayed a trial while it got a document notarized. The doc gave the police permission to confiscate a driver's license, and had to have been signed and notarized on the date/time of confiscation. The freshly notarized document presented to the court as legal justification for the confiscation did not match the copy given to the defendant. The judge ruled that an after-the-fact notarization was invalid, and therefore the confiscation was improper, and the defendant was handed his license right then and there. The judge said the laws apply to everybody, even though he truly believed the officer signed the document when he said he did; there was no proof, as required by law.

Notaries Public are officers of the State. Ergo, the obligation of trust in the notarial seal is sacrocanct.

I sleep like a baby every night.

Reply by Susan Fischer on 5/28/08 9:49pm
Msg #249128

Oops, typo - "lose" not "loose." n/m

Reply by JanetK_CA on 5/29/08 12:46am
Msg #249151

Very well said!!!!

I think you nailed it. When we "recreate" another document, it's not the same as correcting a mistake on a loose certificate that can be retrieved and replaced (depending on our state's laws). Bottom line, it's not the same document when it's a different piece of paper -- even if the writing on it is the same.

Thanks for putting it so well!

Reply by MikeC/NY on 5/28/08 11:20pm
Msg #249142

You can't re-create the document - the date you apply pen to paper as a notary is the date that appears in the notarial block. Anything less is backdating. That's as basic as the venue being where your feet are when you sign.

The fact that the document may be date sensitive is not the notary's problem - the notary's first and only responsibility is to the State who issued his/her commission, and the State is pretty specific about how things are supposed to be done.

I hope that you, representing a signing service, are asking this question tongue in cheek...

Reply by ReneeK_MI on 5/29/08 6:31am
Msg #249156

Couple points to consider, and not be anyone's patsy

Point #1: T/C wants you to do something illegal (fraud a notarization). T/C could easily get another mtg signed via overnight, and do their OWN illegal notarization - which of course they're not going to do, but will try to convince you that you 'owe' them your own illegal act - risk your OWN neck, or try to convince you it's NOT illegal, or try the 'everyone does it' trick. I always have to question the nature of those types of relationships, one of the people in that kind of a relationship (with all due respect) falls under the category of 'a patsy'.

Point #2: an illegal act is an illegal act, and any 'reason' for it is moot - HOWEVER, there is no REASON to even need the date of the mtg to be frauded. The NOTE provides the contract for the loan, the Note was/is valid - the mtg has a transaction date tying it to that Note, and that transaction date is regardless of the date notarized (or signed); additionally, the lien becomes a valid lien WHEN RECORDED, which is regardless of the date notarized or signed. If the mtg is dated/notarized fraudulently, it is still not going to record any quicker if they lost the first one.

So, the ONLY reason they have, that I can come up with anyway, to ask you to fraud a notarization & perform an illegal act is to avoid a 'smudge' on a file that they have to take 2 minutes to explain to a picky lender. At the end of the day, the lender wants valid/recorded lien & lien position - that's NOT going to change whether you backdate or not. Mtgs do get lost, not unheard of - hence the lenders/TC's who get two signed in the first place - but as Brenda said, there are LEGAL ways of fixing this.

I've seen many, many times where nobody KNEW the mtg was lost/never recorded for months and months (3 guesses which county). In a million years I'd have never expected or asked for a replacement to be backdated - what would be the POINT? Recordings are NOT retroactive! When it's recorded, it's valid, period. You get another one printed, get it signed & notarized and RECORDED asap, pray nobody beat you 'in line' and whew, done.

Reply by MikeC/NY on 5/29/08 12:25pm
Msg #249233

Re: Couple points to consider, and not be anyone's patsy

"I've seen many, many times where nobody KNEW the mtg was lost/never recorded for months and months (3 guesses which county). In a million years I'd have never expected or asked for a replacement to be backdated - what would be the POINT? Recordings are NOT retroactive! When it's recorded, it's valid, period. You get another one printed, get it signed & notarized and RECORDED asap, pray nobody beat you 'in line' and whew, done."

I was called to do a re-sign on a mortgage that was lost for over a year - never recorded, no one knew where it was or what happened to it. I'm not even sure how they figured out it was never recorded. The new document had the original date on it, but I used the current date for the notarization - the question of backdating never came up. As you said, all the lender cared about was getting the thing recorded - the dates on it weren't going to affect lien position.