Posted by Mamie on 10/6/08 8:05pm
Msg #266544

Unlawful practice of law.

I know when doing a witness closing what can be explained and what can't. UPL. But when you are out and securing an application for a mortgage modification, not acting as a notary but a representative of the company working the modification, what can be explained to the client? Can you give your opinion? Can you offer options? I am really at a quandry over this.

Reply by Linda_H/FL on 10/6/08 8:14pm
Msg #266545

I would think the most you could explain in that scenario is the procedure to be completed while you're there and what will happen with the paperwork when you leave. As for options and opinions, I'd keep my mouth shut and refer them to their rep. Without in-depth questioning of the signer you have no idea of their situation - that's between them and the loss mitigation specialist. Unless, of course, you're a financial advisor and/or a loss mitigation specialist, in which case you have the expertise to render opinions and suggest options to the signer. However, I think the company would frown on your putting your two-cents in unsolicited. JMHO

Reply by Les_CO on 10/6/08 8:31pm
Msg #266548

First... get UPL right.
Second... if you are acting as an employee, or agent of a particular firm...ask them.
Third ....always explain everything to the client...that you know to be true.
As for opinions? Post them here.
As far as options....does your employer offer any?
It's the client's choice...not yours. If you feel unconfortable doing what you are doing...don't do it.

Reply by PAW on 10/6/08 8:57pm
Msg #266552

Re: Unlawful practice of law applies to all lay persons

UPL is not limited to "signing agents". UPL applies to ALL non-attorneys. Unless you are licensed to practice law in the jurisdiction that you are in, you cannot offer any legal opinions, provide legal counseling, or perform any services in which legal knowledge is required.

The Florida Supreme Court has provided the following general definition of UPL:

"We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law."

Reply by MikeC/NY on 10/6/08 9:09pm
Msg #266556

Understand what UPL is - it's applying your knowledge of the law to specific circumstances. There's a fine line between legal information (which anyone can provide) and legal advice (which only an attorney can provide).

Explaining what a form is for in general terms is not UPL; however, helping someone fill out that form might be (unless you're just writing down their answers verbatim), and offering an opinion just about guarantees that you've crossed the line.

If you're securing an application for a mortgage mod, the only thing you can tell the client about how the mod will affect them is what the company authorizes you to tell them. If you go beyond that, you are probably asking for trouble; if you offer an opinion, you're toast.

Reply by Mamie on 10/6/08 9:15pm
Msg #266557

Okay, thank you all. I was pretty sure, I couldn't give opinions, but just wanted to be sure exactly what could be explained. I'm not even sure I want to continue to do these applications, they seem to charge too much, take lots of time and they don't pay enough.

Reply by Marian_in_CA on 10/6/08 11:40pm
Msg #266562

It can be a real fine line...

In my current 9-5 job I deal with a lot of attorneys, especially dealing with trusts, estates, elder law, disability and the like. Just from experience I am able to tell a person, "Hey if you need to get this done, you might need to pursue x, y or z. Here are two attorneys that I know who can do that for you or give you advice on how to proceed." Of course, it has nothing to do with notary work... but it's also not crossing any UPL lines, either. I just happen to know that if someone comes to me with problem A, there are only a few solutions and I've had it reiterated multiple times by several attorneys.

One attorney told me that best way to think about it is like this: If there is a concrete answer or set of answers with an authoritative source that applies to everyone, then you're fine. If the answer needs tailoring to the individual, then send them to a lawyer or subject matter expert.

Reply by BobbiCT on 10/7/08 6:57am
Msg #266564

Loan application ...

It depends on:

The terms of your employment.

Whether the State of California requires you to have a mortgage broker's license to assist borrowers' in "completing a mortgage application". It may be a modification; however, this could fall under "mortgage application" law. Why not make a "just curious" call to the California banking dept. or agency that governs/regulates mortgage applications and ask them what licenses, if any, you need to help people fill out application to modify their existing loan.

I can't speak to your employer or its lending business and CA laws (federal laws may kick in, too). After underwriting review, I've seen "modifications" turn into full refinances.

Reply by sue_pa on 10/7/08 7:08am
Msg #266565

why even worry about the UPL aspect

Do what you were hired to do - get the paperwork signed. No one is paying you to offer an opinion or an option. You know NOTHING about their lives - financial nor personal - even if they tell you that doesn't mean it's 'correct'. The only way you can view the product is through your own eyes relating to your own life or else the perceived lives of 'most' people you meet with. Why do you care if it's too costly? They're adults and if that's how they choose to spend their money so be it.

Reply by sue_pa on 10/7/08 7:10am
Msg #266566

forgot

you say the job doesn't pay enough. Why are you accepting jobs that you don't feel are worth the money? Why would you even consider lengthening the appointment time by offering opinions or options?

Reply by CF on 10/7/08 7:10am
Msg #266567

Re: why even worry about the UPL aspect

Sue is correct! This is what I do...

I simply explain what it there just like in a re-fi signing. All the information is there in black and white. If they ask specific questions like: Is this a good rate? or Are these closings costs standard? Then I refer them back to their LO. I simply say..."I am a contractor and I do not have that type of information and I do not work with specific loan programs- I am here to go over these documents and the only information that I know is here in this paperwork." Of course- I reassure them that they are only doing a loan application and that they can always have an Attorney look over the paperwork b/c I am not an Attorney- only a Notary. Works every time. You should not be giving out any information on their loan product/ economic situation/ home value.

Reply by Mamie on 10/7/08 4:32pm
Msg #266598

Re: why even worry about the UPL aspect

Thank you all. Sue_Pa, I accepted the job originally because I didn't know what was involved.
Going in and having them fill out the papers is simple enough, but this involved getting copies of many of their financial documents and was really a very detailed accounting of all their finances. I have emailed them the information relating to this and explained why the client's refused to sign. Guess what? I have not heard word one since then. Last week they (comp) were calling several times a day, when I informed them of circumstances -- Nada!