Posted by Marian_in_CA on 4/23/09 4:34pm
Msg #286084

California POA nightmare.

We all know that lenders like to have original POAs. Had an assignment today for a CA property, CA lender...CA everything. Husband is military and overseas. Wife has several POA documents. One is general, one is specific to real estate. They have multiple real properties (all in CA), and the wife does not want to send in the only original she has that is specific to real property.

Well, wife is a smart cookie and she has done her research. She printed out the state Probate code (4307) that says, "A copy of a power of attorney certified under this section has the same force and effect as the original power of attorney."

My instructions say get the original... well, a certified copy is just as good as an original... but I called up anyway and told them they were not getting an original but a certified copy. A copy that I certified for her, which I am perfectly allowed to do. The borrower refused to send the original.

Was told that wasn't acceptable and they wanted to talk to the borrower. Lots of bickering back and forth as I sat there. Loan officer is stubborn and insists she must send an original or no-go. This lady was eloquent and stood her ground, got her LO's boss on the phone...more bickering. She finally said, "You are wasting my time and that of the notary who has been here listening to all of this. You will accept the copy or I will not sign and I will report you to the State Department of Corporations. They hang up on her!

She was very nice, but it got me to wondering... why WON'T they accept a certified copy? I mean, this is a CA company on a CA property and CA Probate Code says a properly certified copy is just as good as the original. What gives?

Reply by JanetK_CA on 4/23/09 5:01pm
Msg #286092

Ignorance, probably

How frustrating. I bet it was refreshing to have a "smart cookie" for a borrower, though. Good for her!

Reply by davidK/CA on 4/23/09 6:03pm
Msg #286096

Re: Ignorance, probably

IMHO, you just can't expect loan brokers or title company clerks to know the law. In one case it's "close the loan so I can get paid" and in the other case it's "I don't want that paperwork messing up my schedule." That's why NSAs get the big bucks! We save everyone's butt.

Reply by LKT/CA on 4/23/09 6:16pm
Msg #286098

I notarize signatures on POA's for hospital patients quite routinely and instruct the agents to never let the original POA out of their site. If the bank, the doctor, landlord or whoever requests a POA, get certified copies for them....BECAUSE....if they let the original POA go and only keep a certified copy for themselves, if another entity needs a POA, they cannot get additional certified copies if they are only holding a certified copy. But if they've kept the original, they can get as many additional certified copies as they need.

<<<why WON'T they accept a certified copy?>>>

Probably ignorant of the law and lacking in understanding of the force a certified copy of a POA has.

Reply by Marian_in_CA on 4/23/09 6:38pm
Msg #286103

Exactly! Which is why I don't get why the lender is so stubborn. This poor woman was quoting state code and telling them to go look it up or talk to their lawyers. The LO's supervisor said, "Our attorneys have already gone over this and they approved our requirements. Nothing but an original will fund this loan."

I would never, ever send an original POA to anyone. I will hand carry it, I will get certified copies... but the original would always stay with me, no matter what.

It seems lenders and their employees are ignorant of a lot of things.

Reply by ReneeK_MI on 4/23/09 6:30pm
Msg #286101

Last section of that code might be deal-breaker?

It says:

4310. Without limiting the generality of Section 4300, nothing in
this chapter requires a financial institution to open a deposit
account for a principal at the request of an attorney-in-fact if the
principal is not currently a depositor of the financial institution
or to make a loan to the attorney-in-fact on the principal's behalf
if the principal is not currently a borrower of the financial
institution.

Reply by Marian_in_CA on 4/23/09 6:34pm
Msg #286102

Re: Last section of that code might be deal-breaker?

Ahhh, nice catch Renee! In this case it was a re-finance with the same lender so I'm guessing it doesn't apply?

Reply by PAW on 4/23/09 7:23pm
Msg #286106

Quite often financial institutions have their own requirements that state "original POA". There's nothing preventing them from doing so. The institution does not have to accept the POA, original or certified copy. That is their right. If the institution does accept the POA, the institution is required to return the original instrument to the borrower. Of course the institution will make their own copies for their records.

When I'm involved in notarizing POAs, which I only do for attorneys, three of the attorneys I work with always makes a minimum of 3 "originals". One is for the principal (grantor), one is for the attorney in fact (grantee) and one is for the attorneys file. The attorney keeps an original in case certified copies are needed, which rarely happens, or the grantor or grantee lost their "original". When drawing up a POA strictly for real estate transactions, the attorney requires 4 originals. Three are distributed as noted before, and the fourth is provided to the lending institution. POAs for healthcare are done in the same manner (3 originals), and the healthcare facility, such as a nursing home or rehab facility, receive a certified copy for their records.

Reply by Maureen_nh on 4/23/09 10:38pm
Msg #286117

Re: AHA!

I did a POA for a lady whose son was an attorney and he had me do eight of them. At the time I thought it was a bit much, but I guess not.
Now I wonder if I should go back to my attorney and get more done.

Reply by Julie/MI on 4/23/09 8:21pm
Msg #286109

Recording

Many times the poa has to be recorded with the county. My state only accepts originals for recording.

thing is, if these people are so smart, I don't know why they just didn't sign mulitple original poa's, so they had an spare.

Reply by BrendaTx on 4/23/09 8:39pm
Msg #286112

Just record the original immediately.

The original will return to the rightful custodian and certified copies (from the clerk) can be gotten at will.

You can record pretty much whatever you want to record in the Official Public Records (in Texas anyhow) and get a certfied copy of it as long as you have the volume and page number or know the "grantor/grantee" info.

Reply by Marian_in_CA on 4/23/09 10:58pm
Msg #286118

Re: Recording

Good point, in CA POAs involving real property should be recorded or it will obviously a look like a discrepancy in a title search. This POA was not recorded with the County that I could see and I didn't think to ask.

It was my impression during all of this that the copy I certified for her (which is just as good as the original) would record with the DOT. Maybe that's not how it's done? Either way, you'd think the lender would have told HER this if it were an issue and educated her rather than simply saying, "We need the original and that's it."

I didn't get very involved at all it just got me to wondering what I was missing. I'm still learning that end of the business in my real estate broker courses.

Reply by Susan Fischer on 4/24/09 1:03am
Msg #286120

Had one some years back - husband at sea for months

at a time - lender promised to return original to her - she called me for months after the loan closed. I tried to get it back for her, she talked to everyone under the sun, don't know what eventually happened, but she was one hot mama for a long time.

When I'm called to do a POA, I make the suggestion to have more than one original - for this very reason. Originals seem very easily 'lost.'

Reply by sue_pa on 4/24/09 7:40am
Msg #286126

like PAWs and Brenda's responses

I feel when things are done by a lawyer there are little "touches" that someone pulling a POA form off the internet won't think abuot. A lawyer knows from his past client's experiences that one original probably won't be sufficient. When I worked in a law office, we made varying amounts of originals, depending if there were specific circumstances. We ALWAYS kept an original in our safe. We also recommended recording the original, nothing to do with specific real estate POAs but talking about the general ones. If they ended up being down to their last or no more and they hadn't recorded one like we recommended when it was signed, ours came out of the safe and to the court house it went so that there could be, as Brenda stated, certified copies made at will.

As for Marian's 'situation', I'm guessing along with others that ignorance was the problem. Ignorance because they want the loan to fund w/no problems and no problems popping up down the road and they know the original will cause no problems.

Reply by Les_CO on 4/24/09 10:32am
Msg #286142

Re: like PAWs and Brenda's responses

I’m guessing that ignorance was not the problem at all. I’d say some lawyer in the lenders legal dept. put forth a directive that “only an original” would do. To stop someone at title, or some LO guessing if it was a ‘certified copy,’ a copy, or what?