Posted by MonicaFL on 4/26/09 6:52am
Msg #286369

An interesting POA/QCD Story

I handled a closing yesterday (a refi) where the lady's husband was in Iraq (he is a contractor). She had a full POA (with no restrictions on real estate transactions) and the lender says "its not specific enough" and they want him to execute another one. Also, her name is NOT on the deed but in her sister's name and the sister is located in CT and was supposed to sign a QCD to remove her name and put the borrower's name on it with the borrower's husband. (now take note, her sister is a BANKER) BUT, she told me, that since the QCD showed a different State than CT, the banker sister said it was wrong so she couldn't sign it. I called the person who hired me and they in turn called the lender and spoke with a processor. Processor said to go ahead and close the deal - they know the new POA is coming - so no problem and they are "taking care of" the QCD.

What I think is going to be interesting is this - 1. If a new POA is required, (and it will have a new date on it - and date is going to be AFTER the date on the loan, and 2. The date on the QCD (when it is finally signed) will also be AFTER the date on the loan! My question is this - how can someone sign papers for someone else first if their name isn't on the deed to begin with and 2. How can the lender use a POA that is dated AFTER the loan closing? However, I did what I was instructed to do - close the loan but it is certainly going to be interesting to see if it flies. Note: I guess the sister banker doesn't know ( and I guess the notaries in her bank don't know) that you (the notary) change the venue to the State and County in which it is signed.


It is going to be interesting to see how this plays out.

Reply by PAW on 4/26/09 7:02am
Msg #286372

The date on the QCD is really immaterial as long as the QCD is recorded prior to the new mortgage with the correct owners names. If the QCD isn't filed prior to the mortgage, then there is a cloud on title that would need to be resolved. The cloud certainly could jeopardize the loan.

The wife's name does not have to be on title, if the property is homesteaded in FL. In Florida, homestead is a constitutional right that places the spouses interest ("Tenancy by the Entirety" in the property regardless of actual vesting.

Reply by Lee/AR on 4/26/09 7:53am
Msg #286377

My town is close to another county's border. Many 'bank notaries' in my town/county are from the 'other' county and they typically put 'their' county in the venue--and I have given up trying to explain 'venue is where it's signed'---they simply don't want to hear it and won't do it (even when told this by SOS) because, you see, they are 'bank notaries'. They're so 'special'.

Reply by Bob_Chicago on 4/26/09 9:07am
Msg #286380

Not sure if I agree.

"The date on the QCD is really immaterial as long as the QCD is recorded prior to the new mortgage with the correct owners names"
I can't cite a specific source, but I have been told by a number of title
legal personnel, that the date of the deed, (not necessarily the date of execution)
needs to be prior to the date of the mortgage.
I have also been told that the mortgage MAY be recorded prior to the recording
of the deed, so long a the "chain" is later completed by the deed being executed by
the proper parties and recorded.
I have been involved in number of commercial closings where the lender wants the
mortgage recorded prior to the date of closing so that a preliminary title report can
be brought down showing the mortgage of record. The deed is then recorded after
money changes hands. If no deed is ever recorded then
the exception of the "wild"mortgage will be waived on later title commitments unltil it
has been released.

Reply by BrendaTx on 4/26/09 9:39am
Msg #286383

Re: Not sure if I agree.

Tend to agree, Bob. QCD date before or same as the date of the mortgage. No citing, just experience.

Reply by Bob_Chicago on 4/26/09 4:55pm
Msg #286397

CORRECTION "needs to be prior to", or the same as.... n/m

Reply by BobbiCT on 4/26/09 9:35am
Msg #286382

Very interesting re Florida real property law ...

Interesting that in Florida the "date on the QCD is really immaterial as long as the QCD is recorded prior to the new mortgage."

In CT is is VERY MATERIAL. Title passes at the time the deed is signed and "delivered," not when it is "recorded," which is basically public notice of the transfer of title. A few times over many years title insurance company has "insured over an oops" between husband and wife; i.e., QCD dated same date as the mortgage deed but QCD is recorded immediately after the mortgage. (That's what happens when you mail in recordings rather than pay an abstractor to hand deliver and make sure documents are recorded in the correct order.)

As far as I know, a CT title company has NEVER insured over a "new owner" QCD being recorded after the mortgage. The "mortgagor" didn't own the property at the time the loan documents were signed (or in the case of divorce, only owned a 50% interest and that was all that was encumbered).

Not legal advice; not legal opinion - based on CT title cases and title company seminars.

Reply by Bob_Chicago on 4/26/09 1:28pm
Msg #286391

Not legal advice, yada yada, but I believe that in some..

states title passes upon delivery of the deed. Recording is to
put the world on notice.
As to a lien, priority is generally in the order of recording.
That is the purpose of subordination agreements.

Reply by Gary_CA on 4/26/09 5:09pm
Msg #286399

Re: Not legal advice, yada yada, but I believe that in some..

Also not legal yada yada I believe you're right.

Title passes upon delivery and recordation is constructive notice of that delivery.

However, you have to assume that the deed was not delivered before the date it was notarized. (Before it was notarized it wasn't signed and thus wasn't yet a deed.)

So I'm guessing those loan docs with their DOT notarized before the QCD was notarized may well be toast, as others have mentioned... unless they clear the cloud post facto as PAW suggested.

Either way, send a notary out on Friday afternoon with nobody to call and she finds that one signer is in Timbucktoo...what's she gonna do? Sign the loan package with the signer she has, that's what.

Reply by MonicaFL on 4/26/09 10:01am
Msg #286384

No, its not a Florida property - Texas

Reply by Julie/MI on 4/26/09 9:03am
Msg #286379

This is what the title company is for. It's up to the title company to figure out and the legal department of the lender. Period.

I have read a few posts, and many are suprised that "bankers" and real estate agents don't understand title stuff.

Loan Officers, Real Estate Agents and Title people all have different concerns; they don't understand where the other is coming from and they never will. I recently took forty hours of real estate license instruction and the banking topics and title topics are not covered in depth (nor should they really be). It's just the way it is, so I think we need to get over our suprise that the three branches are not on the same page and never will be.