Posted by mwm143 on 8/28/09 7:14am
Msg #302064

Feedback on TC request

I received a call last night from a fellow notary signing agent in another state. She conducted a closing at a TC a few weeks ago. There was a document prepared by the TC for signature in the package (Assignment) which at the time of the signing did not contain notarial certification. The TC has asked that she stop by their office and notarize the document. The document needs to be recorded. She does recall the document being in the original package and the borrowers did sign it on that date.

So, the document was signed in her presense 2 weeks ago without the notarization verbiage being present.

Can this be treated the same as a notary oversight and corrected?
Does she now notarize the document after the fact?
Does she date the notarization for the original signing date?
Does she request the document be resigned and notarized for todays date charging the TC a trip fee?

The TC is her best client and she doesn't to cause any additional expense and inconvenience to the folks involved if she doesn't have to.

Thanks for the feedback.

Reply by PAW on 8/28/09 7:29am
Msg #302066

>>> So, the document was signed in her presense 2 weeks ago without the notarization verbiage being present. <<<

>>> Can this be treated the same as a notary oversight and corrected? <<<

If no certificate was on the document (or attached to it), how would any notary know that the signatures would need to be notarized? A notary cannot assume, one way or the other, whether or not signatures need to be notarized.


>>> Does she now notarize the document after the fact? <<<

Check your notary laws. In FL, this is not allowed. I don't think it is allowed in NC either, as notarial acts are "current and present", meaning that are to be done in the current point of time, never before or after.


>>> Does she date the notarization for the original signing date? <<<

If you're asking about the date in the certificate, as I said above, notarial acts are always "current and present", so the date of the notarization is the date the notarization in completed, not when the document was signed. Assuming that the act being requested by the TC is an acknowledgment, the original signers would need to appear and acknowledge that they, in fact, signed the document. Then the notary can complete the acknowledgment using the current date since that is when the signature was acknowledged.


>>> Does she request the document be resigned and notarized for todays date charging the TC a trip fee? <<<

Resigned by the original signers depends on the act being performed. Acknowledgments are just that; the signers acknowledge they signed the document and that it is their signature that is affixed to the document. (There are other elements of an acknowledgment as well.) If the signers must swear (or affirm) to the contents of the document, then the document would need to be resigned after the signers are placed under oath. Then the notary can complete the jurat certifying that the oath was administered.


>>> The TC is her best client and she doesn't to cause any additional expense and inconvenience to the folks involved if she doesn't have to. <<<

Inconvenience is not an excuse to circumvent the statutes. If the TC failed to include the notarial requirement at the original time, then the TC needs to belly up to the bar and accept the responsibility and ramifications of their error.

Reply by Lee/AR on 8/28/09 8:17am
Msg #302068

Perhaps I'm reading more into this than is actually there. But the word I'm stuck on is "Assignment". Only Assignment I've ever seen in a package is the one that the bank signs if/when they sell a mortgage and NSAs aren't present for that one. If that's not the case, then PAW's comments are right on.

Reply by Pat/IL on 8/28/09 9:58am
Msg #302083

I was guessing it was an Assignment of Rents, also a recordable document.

Reply by JanetK_CA on 8/29/09 1:26am
Msg #302229

Good point, Lee. And if it's the Assignment of Rents someone mentioned below, I've never seen that notarized separately. Here it's usually just a rider to the Deed of Trust. I know these things vary greatly from state to state, but it kinda makes you go "hmmmmm?"

Reply by Philip Johnson on 8/28/09 10:14am
Msg #302089

The old pay my rent or follow the law conundrum.

It really boils down for me to the question. What if your friend had moved out of state or passed away in the interim? What would the TC do then? I'd bet that they would own up to it, fix it IAW the state laws and move on.

You've also got to think that the copies you left the borrower now do not match what the TC/bank have on record. What if there is a problem down the line and they make a comparison of the two? The only thing that is different is your work and your explanation.

In my eyes what they want to do is transfer the bugger (mistake they made) from their finger to your friend's finger. I'd pass that offer and make a counter offer to make it right IAW the state's laws.

Reply by mwm143 on 8/28/09 10:59am
Msg #302097

Re: The old pay my rent or follow the law conundrum.

I hear what you're saying and I agree that the doc should just simply be resigned and notarized.

But what if the document originally had an attached notarial certificate (per the TC) that was simply overlooked during the closing then how would handle?? Borrowers are out of town for a week and the documents need to be recorded. The documents were printed by the TC so the notary doesn't have an email set to refer back to. What do you do?

Just food for discussion.....

Reply by CF on 8/28/09 11:14am
Msg #302100

Re: The old pay my rent or follow the law conundrum.

The TC could exercise their right to "correct" the documents. An employee of the company should do what they think is right to their document for their fudning requirements from thier client; and leave the independent contract notary out of the picture.

Reply by Linda_H/FL on 8/28/09 11:23am
Msg #302102

Re: The old pay my rent or follow the law conundrum.

Does this right to correct extend to adding notarial certificates after the fact? Thought it was for typo's only.

Reply by Linda_H/FL on 8/28/09 11:20am
Msg #302101

Re: The old pay my rent or follow the law conundrum.

"But what if the document originally had an attached notarial certificate (per the TC) that was simply overlooked during the closing then how would handle?? Borrowers are out of town for a week and the documents need to be recorded"

Friend needs to check their state notary laws but it wouldn't matter here in FL...we'd still need to meet with the borrowers...can't fix after the fact. Maybe what title can do is record the security instrument then re-record later with the additional document attached.

If your friend's laws are like ours, borrowers must be visited again to get it done right, and the current date must be used....no backdating. Further, Your friend needs to know whose oversight it was to determine if an additional fee is to be charged or if it's to be done on their dime.

MHO

Reply by CF on 8/28/09 1:06pm
Msg #302141

Re: The old pay my rent or follow the law conundrum.

Linda_H/FL you are more than likely correct. I really do not know what level the correctioin or errors and omissions agreements could be used to fix this issue

Reply by jnew on 8/28/09 11:39am
Msg #302106

In our state, notary public can notarize a document after the date signed but only under specific circumstances. It can not be a sworn statement such as ...subscribed and sworn before me this______date______.... The original signer has to appear before the notary and acknowlege that the signature that appears on the document is theirs. The notary can then fill out the date on the ack. and sign and seal the ack. for the date of acknowledgment (not the date it was signed.)

Reply by SharonMN on 8/28/09 4:16pm
Msg #302174

OK, I appear to be in minority here, but in MN* I could add an ack to that document dated the original date, no problem. I'm certifying that I saw so-and-so sign it on x date, which is true whether I affix my notarial certificate right then or 10 years later. The only sticky part would be whether I was sure the doc the title company sent back to me was the same one I saw signed originally. So while I would add an ack to a document that had been in my possession the whole time since signing, I'm not sure I'd be comfortable in this case.

If you needed a jurat you would obviously have to go back and administer an oath and charge a trip fee.

*your state may be different