Posted by Negrete on 10/31/08 6:53am
Msg #268726

Is this UPL ?

I had a notary get a little bit upset with me the other day. (Notary trying to tell me that the borrower was married, and that it did NOT say that on the DOT. )

I stated that it is not the notaries job to determine if the borrower is married or single or what the status is.

My belief is that it is the borrowers job or the Title Companies job to determine what the status should be on the Deed Of Trust, NOT the notaries job. If the notary tries to determine that status then they are trying to practice law.

Any comments would be greatly appricated from you folks here on NotRot. Just as long as they are productive and NOT lamblasting me for asking a question.

Anthony J Negrete

Reply by GA/Atty on 10/31/08 7:07am
Msg #268727

The only way a notary can determine marital status is to

ask the borrower. Many ID affidavits and owner affidavits ask for this information.

Then, if the docs indicate something different than what the borrower says, I think the notary should probably inform the TC.

I don't think what you have described would be UPL.

Now, if the notary is instructed to ignore the discrepancy and proceed, and if he then decides to advise the borrower about the propriety or legality or the consequences of signing the loan docs, then I think he has probably crossed the line into UPL. Or at least gone into a gray area.

Reply by SharonH/OH on 10/31/08 7:16am
Msg #268729

Re: The only way a notary can determine marital status is to

Agree. I will notify the TC (or SS or LO) if the borrower tells me something different than what is on the documents, but only to give them the information, and ask for instructions on how to proceed. I have had TC's tell me to go ahead and have borrower and spouse change and initial the docs, and in one case where the spouse was incarcerated and not available, to have the borrower go ahead and sign, and they'd figure it out later (it didn't go through). I think it's a courtesy and service to the TC to provide them the information, not UPL. They make the decision on what to do with the info. If I can't reach anyone in authority, I will go ahead with the signing, with appropriate notes in the package regarding the discrepancy.

Reply by MichiganAl on 10/31/08 8:15am
Msg #268733

I agree

Notify the t.c., let them make a determination on how to proceed next. I do believe we can be the eyes and ears for the t.c., but it's not up to us to make the decision on how to proceed next.

Reply by PAW on 10/31/08 8:23am
Msg #268737

I concur too n/m

Reply by Glenn Strickler on 10/31/08 11:41am
Msg #268750

Ditto here ... n/m

Reply by MelissaCT on 11/3/08 7:19pm
Msg #268955

Re: The only way a notary can determine marital status is to

I had one where the title should have read John Doe, single man and Jane Doe single woman (son & mother on title), but the doc processor stopped after John Doe, single man. The attorney I worked for was thrilled that I informed him what the borrowers had told me. I received a corrected doc & was able to get it executed that night. Saved time and trouble. I feel it is my duty to report a discrepancy like that.

What would have been UPL is if I had taken it upon myself to write in the change on the document or something like that.

Bringing an error to attention of someone who is capable to correct it or determine that it is not an error is what a conscientious NSA should do. It's the difference between a notary and a professional signing agent.

Reply by Teresa/FL on 10/31/08 7:17am
Msg #268730

It may not be the notary's job, but most packages I receive have instructions to verify marital status. The loan officer and TC should have addressed this prior to the loan documents being generated, but occasionally there will be an issue. I always call the TC before proceeding because some lenders do not require the spouse to sign if it is an investment property. It is not my decision regarding who is to sign, the TC or lender determines this.

I will usually ask when I make the confirmation call, but sometimes am suprised by an "unexpected" spouse. I had a closing a few months ago where the woman was married but it was not reflected on the loan documents. As I was logging her ID information in my journal she casually mentioned that her husband was out of town and they were happy to be getting this done finally.

I called the TC as soon as I discovered this and they were able to arrange for a notary to go to him immediately to take care of the few docs he needed to sign as the non-obligated spouse. The TC admitted that it was their error (the title commitment even mentioned that the husband was to sign) and they were very happy that I caught it. Even though it was a 7 PM closing, both spouses were signed that night in different states.

Reply by enotary/va on 10/31/08 7:52am
Msg #268731

What does UPL mean?

Reply by MistarellaFL on 10/31/08 8:11am
Msg #268732

UPL = unauthorized practice of law n/m

Reply by PAW on 10/31/08 8:23am
Msg #268736

aka (Florida Bar) - Unlicensed Practice Of Law

The Florida Supreme Court has delegated to The Florida Bar, as an official arm of the court, the duty to investigate and prosecute allegations of unauthorized practice of law. The Rules Regulating The Florida Bar establish one statewide Standing Committee on Unlicensed Practice of Law to supervise circuit unlicensed practice of law committees. There must be at least one unlicensed practice of law investigating committee in each circuit. The circuit committees investigate reports of unlicensed practice and report their findings to the statewide standing committee. The standing committee in turn operates under the authority of the Board of Governors. When the Board of Governors approves, based on a recommendation from the Standing committee, the Bar may initiate litigation seeking a civil injunction.

The committee also has the authority to issue proposed formal advisory opinions on whether specific conduct constitutes the unlicensed practice of law. The proposed opinions are filed with the Supreme Court of Florida.

Reply by Gary_CA on 10/31/08 8:58am
Msg #268738

As rotten as lawyers are... not every dumb deed is UPL

I don't get how determining that status would be "practice of law"

That doesn't mean the Notary should be doing it... or not... that's open to interpretation. I can see your point. But on the other hand you wouldn't want a notary out there blind and deaf.

Depends on the circumstance, and on how the notary gives and pushes the info.

If the notary were to certify marital status (put "Jane Doe, a married woman" on his cert) he would be breaking notary law (in CA anyway) but it wouldn't be UPL.

If it were me I would have noted it and completed the signing if the borrowers were willing.

Reply by Dennis D Broadbooks on 10/31/08 9:03am
Msg #268740

Hey, Gary!

Still in mourning?

Reply by Gary_CA on 10/31/08 11:56am
Msg #268752

Starting to recover

The clouds would lift to a bright future if we'd just sign Manny.

Here's a link to a concept car coming to a town near you this May

http://www.geocities.com/ggwwtt/sweep.jpg

Reply by Dennis D Broadbooks on 10/31/08 2:54pm
Msg #268770

Surely...

...you have a couple mil laying around to assist the Dodgers in their quest to sign Manny...don't you? What's it up to now, 27 million per year?

Reply by Dennis D Broadbooks on 10/31/08 9:02am
Msg #268739

What was Printed on the Notary Certificate?

For example, did it say "Julia J Jones, a single woman"? My practice here in MO is to not include the marital status of an individual within the verbiage of my Notary certificate. If the pre-printed language includes the supposed marital status of the signer, I cross it out & initial. Even if a married borrower could produce a marriage certificate for my review that's still no guarantee to me there wasn't a divorce performed the day before. Vice versa if the borrower says they're single there's no way to "prove" that either other than taking their word for it, which I won't do.

Reply by Linda_H/FL on 10/31/08 9:08am
Msg #268741

I agree too...sort of....

It's not the notary's job to determine how title is to appear on the DOT/Mortgage, etc. - that's determined by title from the title search ... however...

"I stated that it is not the notaries job to determine if the borrower is married or single or what the status is. "

This is where I disagree - it may not "be our job" but if I get a confirmation with only one name on it then I do confirm marital status with the borrower just to be sure we get it done right - saves title headaches from info that wasn't picked up before and insures docs are drawn and signed correctly. I've had many instances where husband only is on title, but wife MUST sign - we need to know that ahead of time.

Additionally, when the preprinted notarial cert states "John Doe and Jane Doe, Husband and Wife" or "...a married couple" - I cross out the "husband and wife" or "a married couple" in my acknowledgment or jurat.. JMHO

Reply by Hugh Nations Signing Agents of Austin on 10/31/08 9:50am
Msg #268743

If the facts as they emerge at closing are at odds with the facts as they are presented in the documentation, and if it can materially affect the title or the transaction, I notify the title company.

Marital status can be tricky in states that permit commonlaw marriage; Texas is such a state. It is further complicated by the fact that Texas is a community property state, which means that simply by virtue of the application of community funds to the purchase or upkeep of property, a spouse may acquire an interest in property, even property that is owned prior to the marriage. The question of marital status is thus crucial.

Loan officers are not necessarily attuned to such niceties in the law, nor do borrowers always present all the facts when applying. A common misconception is that a commonlaw marriage, called an "informal marriage" in Texas, is somehow not really a marrige, though it is as binding in every respect as a ceremonial marriage.

It isn't my job, as either a notary or a signing agent, to determine whether a couple meets the legal definition of being married. As a signing agent, though, if I encounter circumstances that may impact the title or the transaction, it is part of my role to convey that to the title company and let them make the call about whether something needs to be done. I've had several closings where corrective measures were required because of information that emerged during closing.

Reply by Frank Carpentier on 10/31/08 11:05am
Msg #268747

When we receive an order from a TC, in many instances it only has one borrower's name. Upon calling to confirm the appointment I will ask for Mr. X. However, the person answering the phone states she is Mrs. X, indicating they are married. When I confirm the appointment, I ask that both Mr. and Mrs. be there to sign the docs. If the docs indicate that Mr. X is single, it is then my job to inform the TC of this. I don't think this is UPL but just reinforcing the State requirements for the loan signing.

Reply by ReneeK_MI on 10/31/08 11:48am
Msg #268751

Concur with the others, and adding ...

specific to how this gets handled, Tony - the signing agent should KNOW for 'informational purposes' what that state generally requires, and should pass along any discrepancy or potential for issue to YOU. You, in turn, should pass it along to the title agent & ask if they have any directive to send back to the signing agent.

While the signing agent being discussed wins points for knowing, she loses all of them for being argumentative about it - she crossed the line there. It's regardless, even if she flat out knows abso-way-lutely that the loan will not record or fund, it's ONLY her job to pass along information, and accept/carry out directives. Period.

IF - on the other hand, she called you (as the SS) to 'pass it along' and you refused to pass it along to title, to SEE if they had any directives ... then it might be you who dropped the ball, and she MIGHT have been frustrated at trying to explain to you that the info needed to be passed along to the proper person. Just a possibility there. Still not condoning anyone getting angry about it - she should've /could've just noted for herself that she did 'pass it along' to you, and then settle herself back into her Signing Agent position. =)

Reply by SharonMN on 10/31/08 12:22pm
Msg #268756

MN acks must state "husband and wife"

In Minnesota, it is required for the acknowledgment to state "husband and wife" if married couple joins together in signing something. So it is definitely my business as far as the notary certificate is concerned, but I don't involve myself in what the documents themselves say, although as a courtesy I would probably call and let the hiring agency know.

I would also refuse to complete a jurat wherein the borrower swore they were single if they just told me 15 minutes before that they were married.

Reply by Dennis D Broadbooks on 10/31/08 2:59pm
Msg #268771

Why in the World...

...would a State desire to have a vested interest in their Notaries determining the marital status of the signers? What possible purpose does that serve & how do they suggest you go about determining that? Just by asking? How would that stand up in court? I'm not being critical, Sharon...just incredulous.

Reply by SharonMN on 10/31/08 4:21pm
Msg #268780

Re: Why in the World...

I have no idea why it's required. However, the statute only says that you have to put "husband and wife" in the certificate, not that the notary has to ask for any proof or verify maritial status in any way. I just ask the signers if they are husband and wife. Also, this only appears to apply to docs BOTH husband and wife sign.

Here's the statute 358.14:

No separate examination of each spouse shall be required, but if husband and wife join in and acknowledge the execution of any instrument, they shall be described in the certificate of acknowledgement as husband and wife; and, if they acknowledge it before different officers, or before the same officer at different times, each shall be described in the certificate as the spouse of the other.

Reply by Roger_OH on 10/31/08 5:40pm
Msg #268787

I'm befuddled too, Dennis...

and at a loss to understand why they do that. Marital status is specified in the mortgage doc and vesting; these are not part of the signature line, which is all we're acknowledging in the certificate.

I also line it out when it appears in the certificate. The only exceptions being when the signature is executed as a trustee, attorney-in-fact, or corporate officer-type capacity.

Sounds like a statute written by a lawmaker without a clue as to what a notary really is.

Reply by Maureen_nh on 10/31/08 6:13pm
Msg #268788

Re: I'm befuddled too, Dennis...

I like the way FL. does it. I don't remember the specific wording for capacity but it puts the burden on the signer.
Something like, "so and so who presents themselves as--"

Reply by Linda_H/FL on 10/31/08 6:51pm
Msg #268795

Maureen, I think you're thinking of our ability to

get around name discrepancies....we can state in our cert "Jane Doe who represented to me that she took title as Jane Smith, and who provided <form of identification> in the name of Jane Doe as identification.

Any other capacity is simply stated..."Jane Doe as attorney-in-fact for...", "Jane Doe, President of XYZ Corporation"..."Jane Doe, Trustee of the Jane Doe Trust"...etc., etc. What I DO like about Florida is they leave almost nothing to chance - almost every situation a notary can come across is addressed ...we are very lucky...

Reply by PAW on 10/31/08 7:01pm
Msg #268799

Re: I'm befuddled too, Dennis...

To add to what LindaH said, there is a difference between "representative capacity" and "status". Married, single, husband and wife are all exclamations of status. As Florida notaries, we do not certify status. However, we are directed to include perceived and stated representative capacities, such as attorney-in-fact, President of the XYZ company, Secretary of the ABC Professional Organization.

Reply by Dennis D Broadbooks on 11/1/08 5:24am
Msg #268814

Paul...

...do you ask to see some type of physical proof when it comes to representative capacity? A trust document, business card, etc? I do.

Reply by PAW on 11/1/08 7:42am
Msg #268818

Re: Paul...

I usually do, but according to the FL SOS and statutes, a representative capacity is declared by the signer, so no actual proof is required. This stems from the fact that a notarized signature does not make the document legal. If it is an illegal declaration, it resides with the signer.

With loan documents, since I'm also wearing the signing agent hat, a little more authentication is in order, imo. I also think that it shows a greater degree of professionalism and security when performing general notary work, making the client more comfortable in our actions.

In the specific case of a POA, some lenders, title companies and even law offices, have asked to have the "Affidavit of Attorney in Fact" (http://www.pawnotary.com/forms/FL_certificates/Affidavit%20of%20Attorney%20in%20Fact.pdf) completed and returned with the documents, if necessary. This is usually done when the original POA cannot be submitted to the document(s) recipient.

Reply by Dennis D Broadbooks on 11/1/08 5:22am
Msg #268813

Glad You Mentioned...

...trustee, attorney-in-fact, or corporate officer because those specific named capacities are the only ones I'll allow, other than the signer's name, to appear in the Notary certificate.

Reply by Dennis D Broadbooks on 11/1/08 6:08am
Msg #268815

Have You Ever Tried to Affect...

...a change in your state's Notary laws? If you'd be led to do so it's really not that difficult a process. Start with your local state representative & work your way up to the state department responsible for Notary Public commissions. Here in MO it's our Secretary of State's office & their Notary Public Commissions Division. While I won't say my input was the sole catalyst, I was asked to provide input at a meeting in 2003 held in our State Capitol by two state reps & 3 members of our Commissions Division. Many potential items of change in our Notary laws were discussed (I lobbied heavily to have our paltry $2.00 fee per signature raised) & the result was some minor revisions to our Notary laws which were implemented in September of 2004. Unfortunately a revision to our fee structure was NOT one of the changes implemented. The two state reps viewed it politically as a tax increase on their constituents & were never on board with that suggestion.

Reply by Ronda Roaring on 11/3/08 9:58am
Msg #268907

Despite the fact that New York is not a spousal state, I was asked the other day by a title company to verify the marital status of the borrowers, and they were listed on title as Jon Doe and May Doe, husband and wife. Stupid. What's important in NYS is not marital status but HOW THEY ARE TAKING TITLE and that is often left off title. That's the ignorance of the title company (and the borrowers). I used to ask borrowers, "You're listed on title as tenants in common. Is that what you want?" and they didn't have a clue. So I stopped asking. It really isn't my business to explain the different ways of taking title in NYS. But I have a friend who's husband died without a will, and now she has to spend years and tons of legal fees in probate convincing the judge that she should be given his interest in the house.