Posted by Jim/AL on 4/8/09 10:26pm
Msg #284187
2 POA questions, opinions appreciated
First question was asked in oter link belo by VioCa but unanswered and I am curious also.
(VioCa asked) I have a question regarding the POA signing
Would you proceed with the POA signing without seeing at least a copy of it to make sure it exists? Is it safe to do it without seeing one or it does not matter because we notarize the signature of the person that apears in front of us. But, that person does not sign only his/her name and signs the entire POA wording.
I always consided it is not my job to see it but sometimes I am wondering if later on it turns out to be a fraudulent transaction I can be hold liable.
2nd question comes from POA I had last week. Girl had POA for Dad overseas and had original to return with docs per TC instructions. Signatures were to be signed exactly as printed and this is where it got funky. Most docs were printed this way (fake names)
"John J. Smith aka John Jacob Smith by Jane Judy Smith Attorney in Fact."
Question is why sign docs with an AKA when they had 2 signature/aka affs in package and how should she initial the Mortgage, Note etc...?
75 pages, usually 30-40 mins. took 90 plus to sign and of course the TC and LO would not answer cell calls.
| Reply by Linda_H/FL on 4/8/09 10:44pm
Msg #284188
1. "Would you proceed with the POA signing without seeing at least a copy of it to make sure it exists" - I believe it's a state-specific thing....in FL we are not required to see the POA - their statement to us that it exists is sufficient (now, I don't like it but that's how it's done here)...in the case of a loan signing it's up to the title company or lender to see the POA and review it - if they say it's there and it's okay then I'm good with it..in general notary work we're not required to see it. Check your state notary laws on what to do in this instance.
2. Maybe the POA was drawn up with the a/k/a, in which case that's how she'd have to sign - if not drawn that way it may be just a lender/title quirk - initials would be "JJS aka JJS by JJS AIF" - may be possible to do "JJS by JJS AIF...
MHO
| Reply by Marian_in_CA on 4/8/09 10:46pm
Msg #284189
I'll answer the first one for now.
I take the question to mean, would I let somebody sign as attorney in fact without seeing the actual power of attorney document?
Yes, I likely would. And this is for California only, of course... but we're not allowed to determine or certify the capacity of the signer of a document. And, obviously, we're not allowed to notate their capacity in our notarial certificate, either. We *CAN* notate in an optional section on a loose form what they claim as their capacity...but it's not required, nor is it official.
So, if Minnie Mouse signs as AIF for Bugs Bunny... that's great. But in my notarial cert it will only state Minnie Mouse...
For example:
========================
State of California
County of Kern
Subscribed and sworn to (or affirmed) before me on this 8th day of April, 2009, by MINNIE MOUSE, proved to me on the basis of satisfactory evidence to be the person who appeared before me.
Signature______________________ (seal)
=======================
All I care about is Minnie's identity. A notarial seal does not legalize the document. Of course, if at some point we figure out that Minnie Mouse really isn't the POA for let's say... Barack Obama, then we can refuse. Of course, few people would go and sign as AIF without having a copy of the POA with them...at least... I don't think so. If I'm presented with the POA, I'll glance at it...but I don't need to ask for it because I don't really care about the content of the document, just her signature. As long as we (in CA) do a proper notarization...we shouldn't be held liable for the illegal activities of somebody else.
If I'm wrong, please... another CA notary correct me here.
| Reply by VioCa on 4/8/09 11:26pm
Msg #284193
You are right Marian, it is not our job to see it. California law is not very specific about it though. Correct me if I am wrong.
And I think I know that it makes common sense not to be liable for any fraud that might be going on and I was not aware of it or could not see anything wrong in doing it.
But it crossed my mind that if fraud would be the case, the hurting party will sue everybody left and right so I would go through the pain along with everybody else. Untill it is determined that I had no implication in the deal, I have to go to court, answer all kind of questions etc.
I was thinking it is safe to ask to see a copy just for the peace of mind.
Regarding the capacity of the signer, just yesterday I lost a client because I was asked to replace my original acknowledgement with one that identifies the capacity as POA. I refused and tried to explain that it is against the law in California.
The argument was that the Title Officer which is also a California notary said it is ok and that is how it should be always done.
Well, no other comments. To make it short I said no, sorry cannot do it.
| Reply by Marian_in_CA on 4/9/09 12:10am
Msg #284195
I do understand the hesitance, to be sure. We become easy marks because of our bonds and such... but you know what? That's why we're bonded. If you are called in to court and you can support your actions according to CA law, then you should be just fine.
Here's a bit of advice that an attorney friend gave me -- never, ever throw away your old handbooks! If you are ever called in to court, you will want to have a copy of the laws as they existed when the notarization was performed. Since CA has been making plenty of changes the past few years, it just makes sense to keep those archived, just in case.
As for that Title Officer... I would have pulled out my handbook and read for him or her page 42 where it specifically states that we can't do that, even for out of state documents. If they still insisted, I would then read to them the part on page 36 where it states that knowingly asking a notary to do something illegal is a crime. Then I would ask if they had any more questions for me.
Of course, before that I'd ask them to send the request by e-mail rather than over the phone. You'd be amazed how that email just never shows up.  But if they get really pushy, I won't hesitate to report them to the SOS.
I've found that a lot of the notaries who are employees of a company and are just commissioned as a small part of their job don't have any idea what they're doing as a notary and barely remember the laws they learned from their NNA seminar...or they rely on advice from people who used to be notaries and aren't familiar with current laws.
| Reply by VioCa on 4/9/09 12:31am
Msg #284197
I do have the e-mail requesting that so I figured out that they do not know the law.
They wouldn't have put anything like that in writing if they knew better.
It is sad but true.
| Reply by sue_pa on 4/10/09 10:30am
Msg #284317
...Here's a bit of advice that an attorney friend gave me -- never, ever throw away your old handbooks! If you are ever called in to court, you will want to have a copy of the laws as they existed when the notarization was performed...
Excellent point ... in the future, you could always somehow track backwards but the simple act of tossing the old book into a box/drawer is so easy. Never thought of that before.
| Reply by OR on 4/9/09 12:18pm
Msg #284226
Re: In Oregon the Notary Guide states this
"The notary is not required to judge whether the power of attorney is valid for that particular transaction. However, if something is blatantly wrong, such as the document is obviously expired, or clearly says it is not to be used for the type of document being notarized, then the notary should not notarize, and should make a notation to that effect in the journal."
In Oregon I read it as, we are ask to see the POA.
| Reply by ReneeK_MI on 4/9/09 5:55pm
Msg #284275
Oregon notary LAW doesn't equal this interpretation IMO
JoAnn - I am SO not 'calling you' out, but I find this an intriguing topic. Your state's notary public act reads almost verbatim as my state:
"194.505 Definitions for ORS 194.005 to 194.200 and 194.505 to 194.595. As used in ORS 194.005 to 194.200 and 194.505 to 194.595, unless the context requires otherwise:
(1) An “acknowledgment” is a statement by a person that the person has executed an instrument for the purposes stated therein and, if the instrument is executed in a representative capacity, that the person signed the instrument with proper authority and executed it as the act of the person or entity represented and identified therein.
(2) “In a representative capacity” means:
(a) For and on behalf of a corporation, partnership, trust or other entity, as an authorized officer, agent, partner, trustee or other representative;
(b) As a public officer, personal representative, guardian or other representative, in the capacity recited in the instrument;
(c) As an attorney-in-fact for a principal; or
(d) In any other capacity as an authorized representative of another.
(3) A “notarial act” or “notarization” is any act that a notary public of this state is authorized to perform, and includes taking an acknowledgment, administering an oath or affirmation, taking a verification upon oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy and noting a protest of a negotiable instrument."
I make the same conclusion with Oregon as I do with MI - nowhere in your laws does it insinuate, assume, describe or define as within the realm of the notary public to "certify capacity", or to have any need to read or see the POA. It's important to remember as you read the law that we TAKE acknowledgments, we don't MAKE them. It is the "person" who is making the acknowledgment.
Just for the sake of interesting shop-talk ... =)
| Reply by Gary_CA on 4/9/09 3:04pm
Msg #284243
I don't like and NEVER use the optional capacity section
Marian...as you mentioned some certs have all that optional information and a block relating to capacity...
I DO use the section regarding the document, I fill in the document title and some identifying information, the loan number if it's on the doc, otherwise the property address. This is important since I usually don't staple my certs (TC has to scan docs 90% of the time so I make it easy). Even if you do attach a cert with a staple or two, it would be very easy to detach.
All certs should identify what they're attached to IMHO. Prevents fraud, which is a big part of why we're there. I even write that information on the bottom of plain-jane certs that have to space for it.
But the capacity information is a different story.
If I'm not allowed to certify capacities then that information has no place on my cert... whenever I use one of those certs (and I prefer not to, when I run out it's back to the plain ones) I clearly CROSS OUT that block of information. Not just blank, crossed out.
So I also agree that I can do a POA signing without seeing the POA... I'd explain to the AIF that I only notarize his sig and obviously whoever received the docs (lender, TC, whoever) will want an original or certified copy... but I don't need it, I just need good ID.
FWIW that's how this notary does it.
| Reply by Gary_CA on 4/9/09 3:07pm
Msg #284244
This applies to CA...not states where you certify capacity n/m
| Reply by Pat/IL on 4/8/09 10:47pm
Msg #284190
1st Question: Vio lives in California. I don't like to get involved with California questions, because there are so many Californians here who can do better with them. But, as far as I have read here repeatedly, CA notaries do not notarize capacity. Thus, it probably is a non-issue there. In Illinois, we do notarize capacity. So I would want to see the POA.
2nd Question: There could be any number of reasons why the borrower was required to sign the principal's name with an A/K/A. But I think the most likely reason is that some loan processor or underwriter got up on the wrong side of the bed.
| Reply by Linda_H/FL on 4/8/09 10:57pm
Msg #284191
Re: 2 POA ... LOL Pat...
"But I think the most likely reason is that some loan processor or underwriter got up on the wrong side of the bed."
Perfect response...
| Reply by Jim/AL on 4/8/09 11:21pm
Msg #284192
Thanks Linda, Pat and Marian, really appreciated
As always your words of wisdom and experience are very much appreciated.
I did go with the JJS aka JJS by JJS AIF in the closing, but what a PITA!
I will check into AL law, but what you are saying makes alot of sense..I am verifying the signers identity and signature, not whether Obama or Mickey gave them a legal POA, ROFL.
Thanks it truly helped.
| Reply by ReneeK_MI on 4/9/09 6:19pm
Msg #284280
Same for Illinois (see OR and MI)
Ok, someone with some kind of law degree needs to set me straight (or slap me upside the head and make me shut up ....)
Illinois statutes are the same as OR, same as MI, says:
"(b) "Acknowledgment" means a declaration by a person that the person has executed an instrument for the purposes stated therein and, if the instrument is executed in a representative capacity, that the person signed the instrument with proper authority and executed it as the act of the person or entity represented and identified therein. "
How are states with the same laws coming up with such different interpretations? Where in your laws is it defining or allowing "certification of capacity"? You are TAKING the acknowledgment of the person ...
| Reply by Linda_H/FL on 4/9/09 7:06pm
Msg #284285
Re: Same for Illinois (see OR and MI) - maybe this will help
Renee, what your citing is the definition of "acknowledgment" - and all states agree on that.. where they differ is whether or not the notary can include capacity in their acknowledgment certs, and whether or not a notary is required to see the instrument granting the authority ...
Pat say in IL they have to include capacity in their certs, so in his opinion he would need to see the instrument; in FL, we have to include the capacity in our certs but out SOS has been clear that we are not required to see the actual instrument - the signer's word is sufficient; CA, on the other hand, has specific instruction from their SOS that they are not to include capacity in their certs - so whether they see the instrument, I guess, is up to them.
An ack is an ack is an ack...the definition is the same throughout - the requirements for, and completion of, that ack is where all the states differ.
I think..
| Reply by Pat/IL on 4/9/09 9:59pm
Msg #284298
Re: Same for Illinois (see OR and MI) - maybe this will help
"Pat say[s] in IL they have to include capacity in their certs, so in his opinion he would need to see the instrument"
Thank you, Linda, for understanding my poorly worded answer. I did not mean to imply that we certify capacity, only that we include it in our cert.s. To further clarify, I said I would want to see the POA, not that I would need to see it. I don't see any peril in looking at the POA.
However, Renee, after reading your post, I am no longer comfortable with my answer above. Having read the definition of acknowledgement that you posted, I would agree with you that it is not necessary to view the POA. I still don't see the harm in it, if it is available.
I tend to think as a title agent in terms of properly closing the deal. I am an employee of a title agent and have closed enough deals as an escrow officer to know exactly what is required. I am very familiar with the Illinois statutory POA form and how it must be completed to satisfy the requirements of the underwriter. That said, I would not really need to see it at the table because my office would have approved it in advance of the closing.
So, what I am saying, Renee, is you are correct - as far as I can tell.
| Reply by Kate/CA on 4/9/09 12:05am
Msg #284194
Question 1
I called the CA SOS years ago and was told, it was not our job to police the signer. If later they find out that, that person had no right to sign as a POA, the courts will take care of it.
| Reply by ReneeK_MI on 4/9/09 3:40am
Msg #284199
IMHO, unless you are both a notary AND an attorney, you are opening yourself up to further liability by viewing the POA. What is it exactly that you are looking at it for - are you qualified to determine its authenticity, are you looking to see that 'some' person signed as Principle (since obviously the Principle isn't there to prove his identity to you, OR attest that he signed the POA), are you somehow going to make a determination to the validity or appropriate/legal use of the POA? All you can even hope to accomplish is to see a piece of paper that to YOU looks like a POA, that some person signed.
You have to read Notary statutes one word at a time - every word used in law has been chosen very carefully, and you will find specific definitions for the most pertinent terms provided within the law. One word used & defined in most Notary Public Acts that I've read (and I've read most states by now) is the word "Person" - check your state - in MI:
"(g) "Person" means every natural person, corporation, partnership, trust, association, or other legal entity and its legal successors."
Now - here is the definition of "Acknowledgment" (MI PA 238 of 2003):
"(a) “Acknowledgment” means the confirmation by a person in the presence of a notary public that he or she is placing or has placed his or her signature on a record for the purposes stated in the record and, if the record is signed in a representative capacity, that he or she is placing or has placed his or her signature on the record with the proper authority and in the capacity of the person represented and identified in the record."
Carefully read, it is the confirmation by a PERSON (NOT a confirmation by the NOTARY). Further, "...that HE OR SHE ...with proper authority ...in the capacity ..." (NOT the notary's statement, "HE OR SHE" refers to the PERSON providing the acknowledgment. Notaries public do not MAKE acknowledgments - they TAKE them.
So - HE OR SHE acknowledges to me that they are acting with proper authority.
As for the AKA in conjunction with AIF - well, consider that we see AKA's all day long, why would the use of a POA negate the presumed 'need' to include AKA's? Separate the two issues, and it's not as large as it might've seemed - certainly not to us, anyway.
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