Posted by J.S. Newberry on 2/21/09 3:02pm
Msg #278344

Backdating documents

Today I was contacted by a signing service to have a signing with a local customer. All of the major documents were dated November 20, 2009 ..yesterday. They said that I could notarize as of today but not change any dates on the document. Why? Because if I did, the loan might not disburse. It got to the point that I could change the date on the front page of the mortgage and have the borrowers initial where I lined out the old date and insert the new date and the lender did not require initials on the bottom of the mortgage pages. Does this sound familiar?

The response of the signing service was: Do you know how many loan closings I did yesterday... Every notary I know does this, what is the big deal?...I want you to insert the dates in the Right of Rescission.

I don't think that, despite the number of closings they handle, that these signing companies are aware of the law. If they do, I think they are willing to skirt the issue for the sake of completing an assignment.

Every notary knows or should know, that the standard mortgage acknowledgement taken by a notary is that the signature was voluntary, the signer understands what kind of document he is signing and that it was signed on the date shown on the document. The date of the acknowledgement can be after the date of the signature unless it says :sworn and subscribed before me: or any other language which shows that it was witnessed by the notary.

Cutting to the chase, the lender or closer can insert a preprinted page with the incorrect date after the closing unless the page is signed or initialed by the borrowers. Even then the initials could be forged by the closer if the document has to be back-dated. I know, in this age of getting things done quickly, a lot of people will cut corners to please a customer.

I always will scan my mortgages and notes from any signing as they were signed before they leave my hands. I will always scan the Hud One, Rescission, Note and TIL as well. With the cost-effectivenes of data storage, I always store the package I received from the lender as well.

The authorities are very eager to prosecute mortgage fraud and when I see an FBI notice in the closing packages, I am pretty sure they mean business. The bad part is that I called the borrower and told them why I was not making the appointment and he said he would not sign documents dated the day before he signed them. The signing agent, who says she does thousands of closings a year, was furious and told me her company would never call me again for a closing and implied that I would be black balled by other signing companies. I told her my title insurance license was worth more than the $100.00 she was going to pay me in 45 days (months?). I also don't like having to dress up and raise my right hand. I hope everyone is not going along with these requests from these signing companies as she said.

Reply by dickb/wi on 2/21/09 3:28pm
Msg #278345

why do you care what date is on the.....

docs unless the date hasn't come yet????.....you just notarize signatures not dates....just make sure that the date in your notary block is the date that the affiant signs the docs....

Reply by dickb/wi on 2/22/09 2:53pm
Msg #278419

correction on my part......

just make sure that the date in your notary block "is the date that the affiant signs the docs"....


"is the date the affiant acknowledges before you that he-she-they inded signed the docs"

Reply by MW/VA on 2/21/09 3:32pm
Msg #278346

I'm not really clear from your story that you were asked to backdate. It has been discussed here before that the date of the documents isn't always an issue, because they are sometimes good for several days. From our standpoint, the borrowers date as of the date the actual signing takes place, and we notarize w/that date. The dates on the RTC have to be correct, of course. I would never take it upon myself to change the date on the DOT or any other critical document, as that could delay the process. It would probably end up that all the docs would need to be redone & resigned.

Reply by MikeC/NY on 2/21/09 3:44pm
Msg #278349

If all they were asking you to do was not change any dates on the documents (but go ahead and notarize using the current date), it's not backdating. The dates on the document can be any time in the past, as long as the date in your notarization block is the current date. Even if it's a jurat, it doesn't matter what the document date is, they're swearing and subscribing TODAY.

From what you described, you weren't being asked to do anything illegal. The argument should have ended when they told you to go ahead and use today's date for the notarization. I don't know that I would have raised this issue, especially with the borrower.

Reply by J.S. Newberry on 2/21/09 4:10pm
Msg #278352

I guess the issue that I had and which I understood to be true is the act of acknowledging a signature has nothing to do with the date in which the instrument was actually signed. If it is signed in the past that is fine, because the signer is acknowledging that he signed the document and can present a new signature to you as evidence to compare with the signed document or show you identification that has the same signature as the document. In this way you can notarize a signature on a document that has already been signed before it was presented to you. I hope I didn't miss the boat on this. When I was in the title business we never were allowed to close on documents that had a date previous to the actual closing. I was told it was a RESPA violation. Has that interpretation changed?

Reply by ReneeK_MI on 2/21/09 4:16pm
Msg #278355

Sorry, J.S. but you are completely wrong ...

Nothing wrong, fraudulent or illegal about anything they asked of you - and this is not "back-dating". It matters not one whit to you or to the borrowers or to anyone else on the planet what the date on those documents are - the only dates that matter are the dates YOU put on your notarial cert (which would, of course, be the current date) and their RTC dates.

You state "Every notary knows ...that it was signed on the date shown on the document." I think that is also an inaccurate statement - more correct would be "...every notary knows that it was either acknowledged or sworn/signed to on the date in your notarial cert."

Reply by ReneeK_MI on 2/21/09 4:24pm
Msg #278356

p.s. - they can be dated in future or past

I've closed many a loan where one party was in one state, and another party was in another state, and for whatever reason the lender wanted all signatures on the same pages. So, docs would be dated for the correct date of the SECOND signing, and shipped out to the first signer (with dates in the future). Of course, the notarial certs would all be dated the actual days of signing.

I think there's still lenders out there whose docs are not date-sensitive, within a margin in either direction. It's the lender's call, docs belong to them.

Reply by Linda_H/FL on 2/21/09 4:25pm
Msg #278357

Re: Backdating documents...okay...some questions

"All of the major documents were dated November 20, 2009 ..yesterday" - were they dated November 20 or yesterday, which was February 20, 2009.

"Every notary knows or should know, that the standard mortgage acknowledgement taken by a notary is ......that the it was signed on the date shown on the document"....no...the standard mortgage acknowledgment states "The foregoing instrument was acknowledged before me this ____ day of ______, 2009 , yada yada....unless Wisconsin has the wording you mentioned...remember, each state's acks may vary a bit.

"I always will scan my mortgages and notes from any signing as they were signed before they leave my hands. I will always scan the Hud One, Rescission, Note and TIL as well. With the cost-effectivenes of data storage....," disagree with you keeping copies of signed documents - you have no need for them and it's beyond your scope as a signing agent.

You weren't backdating...you were told to date your certs today....no problem. I think you made a huge deal out of nothing and may have only succeeded in alienating a potentially good client - although if you're doing e-doc refi's for $100..well, we won't go there...

"The bad part is that I called the borrower and told them why I was not making the appointment and he said he would not sign documents dated the day before he signed them. " Bad move - if he stands by that you probably just cost him (or the LO) a redraw fee - for nothing.

Sorry...JMO....but wow...

Reply by Linda_H/FL on 2/21/09 4:32pm
Msg #278358

20/20 hindsight - is WI a TPL state? n/m

Reply by dickb/wi on 2/22/09 2:54pm
Msg #278421

no....... n/m

Reply by Linda_H/FL on 2/22/09 5:15pm
Msg #278434

Thank you sir...:)... n/m

Reply by J.S. Newberry on 2/21/09 4:41pm
Msg #278360

Re: Backdating documents...okay...some questions

It looks as though I might be a bit conservative, liability-wise, coming from a title background and now doing witness closings. We were always concerned about RESPA violations and when a problem happened afterward they looked for the title company to pay, which they are in a position to do. I worry, that as a signing agent, I may be accepting liability if I commit a negligent act. I do have E & O coverage, but maybe I worry too much. I have been doing more work this year than last year and this was the first time that this happened to me. If this is a common thing than I guess I might be wrong on this. I called the customer to let him know that I did not want to proceed with the closing, and I told him the reason when he asked me why not. I didn't do it to queer his deal, although that probably was the result. But then, again, I was not going to lie about it either. I still have a couple of real estate attorney contacts and I think I will check and see if I am wrong. Thanks for the response. It may save me some business.

Reply by BrendaTx on 2/21/09 4:48pm
Msg #278362

JS Newberry, I kind of know where you are coming from.

With your background, I mean, but I think Renee' is right. There are lots of times in my legal asst. job that I send documents out with the date of the package ahead of the date the signature will take place. The notary just fills in the blank on the ack with the actual date. Many times the docs will also state that no matter what date the docs are signed the effective date is XXXXXX XX, 2009.

Reply by MikeC/NY on 2/21/09 11:20pm
Msg #278394

Re: Backdating documents...okay...some questions

The question of whether the date on the documents has to match the date of the signing is really up to the lender and/or TC - some are rigid, some are flexible. I'm not a lawyer, but I don't see anything in RESPA that says the docs have to be signed on the day they're dated - the only thing that is date sensitive is the RTC.

I've done an acknowledgment on a mortgage that was dated more than a year earlier - TC didn't care about the date on the document, they just needed it done because the original somehow never got recorded.

As someone else pointed out, you can notarize documents that are dated in the future (unless your state laws prohibit that). The date the document takes effect is not your concern; what matters is the date the signers appear before you.

My concern about alerting the borrower about the date discrepancy is that you might be stepping over that fuzzy UPL line - you have no idea what affect (if any) it will have on their loan funding, so you have no business suggesting that there might be a problem. Again, I'm not a lawyer so I don't know if that would be considered UPL, but it comes too close to the line for my comfort level...

Reply by Doris_CO on 2/21/09 4:40pm
Msg #278359

Are you saying that you changed the date or wanted to change the date on each document in the loan package? Some mortgage company loan documents are not date sensitive so they can be signed by the borrower after the date on the docs. I was told by a Countrywide office that their docs were good for 30 days. The only document that would have to be changed would be the HUD (depending on how long of a time between printing and signing) and the RTC. Also, scanning the docs after they were signed and keeping them on your computer (or data storage) might be an infringement on the borrowers privacy since there is sensitive information about the borrower in those docs.

Reply by Julie/MI on 2/21/09 4:46pm
Msg #278361

Troll alert?

"always will scan my mortgages and notes from any signing as they were signed before they leave my hands. I will always scan the Hud One, Rescission, Note and TIL as well. With the cost-effectivenes of data storage, I always store the package I received from the lender as well.:

If you are for real, you need to take off all your brilliant title knowledge and just wear your notary hat.

Reply by J.S. Newberry on 2/21/09 5:28pm
Msg #278364

I have found my answer and I was wrong. The notarial act is only concerned with the notarial section of the document. If the signers accept the dates on the documents, the notary should not refuse to acknowledge signatures. I guess I was looking at this whole thing from the wrong perspective, as a closing agent and not a signing agent. I was advised not to notarize a document which was incomplete or contained blank spaces or have the signer complete the blank spaces but there are plenty of exceptions to that as well. Thanks for the response. You never get old enough to stop learning. I also found out that yesterday was not November 20. LOL.

Reply by jba/fl on 2/21/09 6:23pm
Msg #278366

"You never get old enough to stop learning. I also found out that yesterday was not November 20. LOL."

That's the spirit!

Reply by MW/VA on 2/21/09 6:26pm
Msg #278367

A "little knowledge is a dangerous thing". In this case, you overstepped your founds.
IMO you actually interferred with the loan closing, and had a conversation with the borrower that wasn't appropriate (telling him why you were cancelling the appt.). If you're worried about liability, why would you put yourself in a situation of direct liability by acting in a capacity that you weren't hired for? My .02

Reply by Linda_H/FL on 2/22/09 9:52am
Msg #278401

J.S.....I must say...you've taken the criticism here

very well - that's admirable...I appreciate it when someone can admit they're wrong without blaming everyone else for it....

Reply by JanetK_CA on 2/22/09 6:02pm
Msg #278440

Re: J.S.....I must say...you've taken the criticism here

I agree. Refreshing attitude for a change.

One more thing on your comment above about incomplete documents. This may be a state-specific thing for all I know, but in my state at least, I'm not aware of any restriction on filling in blanks on a document by the borrower before they sign and I notarize. I wouldn't write in anyting myself, but I've often had the borrowers do it, even if it was just to write in N/A. Otherwise I wouldn't be able to notarize.

Again, I don't know if your (or any other) state has a restriction on this. The only party I can imagine wouldn't like it would be the receiver of the documents. But if they don't like how it gets filled in, they shouldn't be sending out an incomplete document for notarization! [BTW, this is one of my pet peeves - the creation of a document with information that isn't available until after the doc in question is signed and notarized... Talk about a "Catch 22"!!!]

Reply by Susan Fischer on 2/22/09 10:00pm
Msg #278457

I share that peeve, Janet. For one, the survey thing. ARRG.

Plus the presumption of "assistance" in filling in the blanks by borrowers - necessarily having to point them out. The onus is on the document generators to complete the blanks, unless they're options for borrowers to choose or confirm. Even then, shouldn't those boxes be fore-agreed upon prior to final docs?

Industry standard for pipeline loans today seems to be We're Short-Handed excuses. Why not hire back some laid off workers? This is the opportunity to create jobs - fill the need. Screw the CEOs, with their bonuses and such - fill the worker-void. Production. Jobs. Experienced Workforce, carrying on commerce.

Anyhoo, just thinking out fingers...typity, typity, typity...

Reply by MW/VA on 2/23/09 7:25am
Msg #278462

I see this same blog showed up on Source of Title. I would be embarrassed to publish my lack of knowledge.