Posted by tmg/Tx on 6/5/09 8:06am
Msg #291248
None Borrowing Sponse
I did a loan that had the wife on the HUD, even though she is a none borrowing spouse. Originally she was to sign only where name appeared on the docs. Later I was told by the SS to have her sign all affidavites/all Title docs, but her name did not appear on those docs. Will cause a problem for closing?
| Reply by tmg/Tx on 6/5/09 8:14am
Msg #291250
oops! I meant Spouse
| Reply by MistarellaFL on 6/5/09 8:15am
Msg #291251
I'll bet you meant non-borrowing, too n/m
| Reply by Regal/NC on 6/5/09 8:20am
Msg #291254
Non-Borrowing Spouse
requirements are determined by the lender/title. Possible problem if requirements not met.
| Reply by BrendaTx on 6/5/09 8:32am
Msg #291258
Re: Non-Borrowing Spouse
Right off top of my head I can see the need for a pro forma signature of non-borrowering spouse on the Affidavits as to Debts/Liens, various compliance agreements, marital status, homestead aff., etc. Lender might require it.
| Reply by tmg/Tx on 6/5/09 8:51am
Msg #291263
Re: Non-Borrowing Spouse
Good, It's seems as long as I followed their instructions everything is okay with docs.
| Reply by Pat/IL on 6/5/09 10:28am
Msg #291298
Re: Non-Borrowing Spouse
While the best policy is to check with the title company or hiring party, as is repeatedly pointed out on this board, the presence of the spouse's name on the HUD should tip you off as to the possibility that the spouse is in title. This should generally mean that the spouse also signs the title affidavits, even if non-borrower.
I can't think of any circumstance where a titled spouse, or cousin for that matter, would not sign the security instrument. All parties in title should always sign, whether borrower or not. As to the RTC, TIL etc., depends on whether the loan is subject to the Truth in Lending Act.
Again, as you know, it is best to check with the title agent or hiring party. But it's also a good idea to know all of the right questions to ask. Since the title affidavits are often referred to as "junk docs", I get the impression that the proper execution of these documents are often ignored.
| Reply by Stoli on 6/5/09 11:06am
Msg #291306
What type of transaction is NOT covered by TIL Act?
§ 104. Exempted transactions
This title does not apply to the following:
(1) Credit transactions involving extensions of credit primarily for business, commercial, or agricultural purposes, or to government or governmental agencies or instrumentalities, or to organizations.
(2) Transactions in securities or commodities accounts by a broker-dealer registered with the Securities and Exchange Commission.
(3) Credit transactions, other than those in which a security interest is or will be acquired in real property, or in personal property used or expected to be used as the principal dwelling of the consumer and other than private education loans (as that term is defined in section 140(a)), in which the total amount financed exceeds $25,000.
(4) Transactions under public utility tariffs, if the Board determines that a State regulatory body regulates the charges for the public utility services involved, the charges for delayed payment, and any discount allowed for early payment.
(5) Transactions for which the Board, by rule, determines that coverage under this title is not necessary to carry out the purposes of this title.
(6) [Repealed]
(7) Loans made, insured, or guaranteed pursuant to a program authorized by title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.).
| Reply by Stoli on 6/5/09 1:46pm
Msg #291331
Pat/Il - Please clarify when a loan is NOT subject to TIL?
"... All parties in title should always sign, whether borrower or not. As to the RTC, TIL etc., depends on whether the loan is subject to the Truth in Lending Act."
I looked up the Truth in Lending Act as well as Regulation Z, both of which are too in depth for a simple notary public/signing agent to pretend to interpret. Is there such an animal as a home loan/refinance transaction which is NOT subject to the TIL Act? I'm not trying to be a jerk, I am really curious. I only do what I'm told to do, but I'm curious...
Sorry that I posted the question in the wrong thread.
| Reply by Pat/IL on 6/5/09 2:28pm
Msg #291340
Re: Pat/Il - Please clarify when a loan is NOT subject to TIL?
Stoli, you posted a list of exceptions just a couple of responses above this. For one, "(1) Credit transactions involving extensions of credit primarily for business, commercial, or agricultural purposes..." Also, see the Act's definition of a "principal dwelling" as limited to 4 residential units. If the borrower owns a five-unit building and occupies it as his primary residence, is the loan subject to the Act?
I won't attempt to unravel all possible exceptions to TILA. I will leave that up to the lenders and their teams of high-priced lawyers. That's why I left the statement open as to TILA requirements such as the RTC. I think it was a good use of your time and effort to read TILA and Reg Z. Not for the purpose of trying to interpret it, but for the value of knowing that it is not as cut-and-dry as it is often made out to be. Leave interpretation to the lawyers.
| Reply by BrendaTx on 6/5/09 2:31pm
Msg #291341
Re: Pat/Il - Please clarify when a loan is NOT subject to TIL?
*Not for the purpose of trying to interpret it, but for the value of knowing that it is not as cut-and-dry as it is often made out to be. Leave interpretation to the lawyers.*
Good stuff to ponder, right there. I'm stickin' to my pay grade.
| Reply by Cari on 6/5/09 5:16pm
Msg #291411
when they are legally separated... n/m
| Reply by Gary Boehm on 6/5/09 9:16am
Msg #291272
None Borrowing Spouse
Wow. The big question I ALWAYS ask a borrower when I get them on the phone to confirm the appointment is "Are you married?". If they say yes but they are not on the title I say that the other spouse MUST be present. Then at the signing I always get their signature on the Mortgage/Deed of Trust (and any Addendum, Allonge, etc.), the HUD, the Truth in Lending and at least three copies of the Right to Cancel. I don't care what they say OR whether their name is on those docs or not. I don't want the Title company blaming me for not getting these or to have to go back again to get them signed. They do not have to sign on the Note.
Here in Ohio it is my understanding that if the non-borrowing spouse does not sign the Mortgage it would be considered a defect in the chain of Title, if not now, then some time 5, 10 or 30 years from now, if a search is done by a diligent, competent title searcher.
And at the very least the RTC is a Federal requirement. Somebody correct me if I'm wrong but this is the ONLY way I do things and I have never had a TC say I was wrong.
| Reply by janCA on 6/5/09 9:44am
Msg #291288
Wow! Sounds like UPL to me.
Gary, just curious, but why don't you call title and ask them? They are the deciding factor in these cases, not the SA.
| Reply by Gary Boehm on 6/5/09 10:26am
Msg #291296
Of course!
Oh most of the time it's already in the Title Company instructions. And of course if not I have called the TC as soon as I have printed the docs and before leaving. About half the time they act like I should already know that (which I do) and the other half they act like they didn't think of it (?, sheesh) and say, you're right, go ahead and have them sign.
I wrote the above because sometimes the borrowers protest (a little) and if it gets to the table that way then we call the TC from the table if necessary and they get told to do it. Of course I can request, but I can't insist that they do it (UPL), but there is nothing wrong with getting something done right. But if they were to refuse then they refuse but that hasn't happened yet (but I have read about that happening).
| Reply by LynnNC on 6/5/09 12:41pm
Msg #291322
Re: Wow! Sounds like UPL to me.
As to UPL, if the Signing Agent can't get in touch with the title company to confirm what the NB spouse needs to sign and doesn't have the required documents signed, there will need to be a second trip to do so and I think that the TC wouldn't be very happy. If the NB spouse's name is not on the DOT, TIL, Itemization of Amount Financed and RTC for a primary residence loan, I always have them sign.
| Reply by Gary Boehm on 6/5/09 1:06pm
Msg #291325
Sounds like UPL to me.
This from a TC that I am doing a signing in a couple of hours...
>
>
General Signature Requirements:
A non-borrower shown on title (including a non-borrowing spouse) must sign the Deed of Trust/Mortgage (DOT/M) and, if applicable, the Notice of Right to Cancel (NORTC), the Truth-in-Lending Disclosure Statement (TIL) and/or HELOC Non-borrower Acknowledgment, as shown in the following table:
Documents That a Non-borrowing Spouse Must Sign
Document to Sign
First Lien Purchase
Fixed-Equity Second
Refinance
HELOC
Deed of Trust/Mortgage (DOT/M)
Notice of Right to Cancel (NORTC)
Truth-in-Lending Disclosure (TIL) & Itemization
HELOC Non-borrower Acknowledgement
>
>
Interesting that it starts out "A Non-borrower shown on title..." - do we know that, sitting there at the signing? Or are we saying well, if we see their name here then it must be... And then "... must sign DOT/M..." which I read as whether the NB name is there or not. Must sign is must sign.
Interesting discussion...
| Reply by Pat/IL on 6/5/09 1:34pm
Msg #291328
Re: Sounds like UPL to me.
Gary, in my response at 10:28 this morning in this very thread lies part of your answer. Most of the software that title agents use (educated guess) have the accounting linked to the HUD, commitment and policy production. So the program will automatically populate the owners' names onto the HUD. The agent may delete non-borrowers from the HUD, so it's not necessarily a reliable source. The 1003 may also be an indicator, if it is prepared correctly.
The only sure way is through instructions from the title agent. If they are doing their job, the names of all owners will be in your instructions. My reason for pointing out the HUD in the earlier response was that, if you should see any additional names on the HUD, it is cause to raise the question with the title agent. Knowing what to ask the title agent is not UPL but, rather the mark of a knowledgable and dilligent signing agent.
| Reply by LynnNC on 6/5/09 12:28pm
Msg #291318
Re: None Borrowing Spouse
The non-borrowing spouse doesn't always sign the HUD - it depends on the lender.
| Reply by sue_pa on 6/5/09 12:34pm
Msg #291319
I cannot believe
that 'signing agents' take it upon themselves to determine spousal rights. I do not care what you have seen hundreds of times ... there are exceptions ... you know, laws, court cases, decisions, lawyers ... appeals.
JUST THIS MORNING I did a loan for a guy. I had no idea whether or not he was married ... he didn't say .... docs didn't say ... title company didn't say ... no where was a wife's name typed or indicated. When we finished, he opened his little manila folder and pulled a document and asked, "Do you want to take this with you?" It was an original, signed, notarized, spousal waiver that his wife signed when they got married ... waiving ALL interest to his real estate. Seems he had faxed a copy to the lender and the title company ... they both knew there was a spouse and the issue had been taken care of ... long before I even knew his name. So ... when I spoke with him if I had asked if there was a spouse and I told him to have the spouse there to sign and she was and she signed ... where would this loan be except a redraw? NOT OUR CALL.
In the one thread someone had used the phrase "TRIM" ... TIL, RTC, Itemization, Mtg.
I do a loan w here they say "SMART!" ... Settlement sheet, Mtg. Affd of title, RTC, TIL. Two differences right here.
I have seen one loan product FOR YEARS where the nonborrowing spouse signs the Mortgage only ... not the TIL. That's what they ask for, that's what they want ... who am I, a lowly "siging agent' to determine their compliance department is in noncompliance ... I'm betting they know A LOT more than I do about compliance ... no matter what little hand chosen portions of federal statute 'expert' notary signing agents copy and paste ... I did a loan in a lender's office the other week ... sitting behind me was an 8, yes I said 8, volume binder set behind me on the counter ... titled something along the lines of Residential Lending in PA. That conference room had, naturally, shelves and shelves of books all related, I am guessing, to lending. WE KNOW NOTHING. If we think we know something, ask but do not make these determinations yourself ...
EVERY state is different regarding spousal rights. EVERY underwriter, lender, settlement agent has their own way of doing things. ASK ... do not make this decision on your own. If it's 10:00 p.m. and no one is available to ask ... sign as typed.
| Reply by PAW on 6/5/09 1:34pm
Msg #291327
Oh so true. EVERY state is different
I did a triple play last week. Two borrowers (husband and wife), three properties. One property held by both husband and wife (loan in both names), one property held by husband (loan in his name only) and third property held by wife (loan in her name only). Depending on which state the property is located in, and the spousal right laws of that state would determine who needs to sign property documents (DOT/Mortgage, RTC, TIL, affidavits, etc.).
Obviously, the property held jointly and both obligated, needed to be signed by both husband and wife. However, it was not their primary residence. The property held by the wife (and only the wife on title and obligated), is their primary residence, but the non-borrower spouse (husband) was not required to sign anything for that property since FL is not a community property state and the property was not homesteaded. (Property not eligible for homestead until next year.) Therefore, the husband has no rights to the property at this time. The property held by the husband (only the husband on title and obligated), is a vacation/2nd home, and the wife did not have to sign anything since FL is not a community property state, property does not qualify for homestead.
| Reply by titleme2nc on 6/5/09 2:43pm
Msg #291342
Main thing to remember is: Ask
I was called at 4pm to do a closing at 4:30pm yesterday at Wells Fargo (they would print docs). The BO was there waiting. I get there and start going over the docs with the BO as they had just finished printing the docs. His name on everything, I happened to see on the Mtg Deed that his name was listed as "John D. Doe, married man". I stopped. He then told me that this was his 2nd signing because of some clerical errors with $s on the 1st set of Doc. That closing was completed a couple days earlier at his home.
Before the 1st signing, the BO was told that wife was to sign some pages; the wife sat right beside of husband thru the entire closing, but the NOTARY never had her sign anything, because her name was Not Typed on the proper forms.
So BO just assumed that she would not be needed for 2nd signing. She was not happy to drive over 30 minutes for a signing that should have been corrected after the 1st closing.
That notary never asked or did not know to ask.
NC is a community property state, so every spouse should be present at closing or the legal forms removing them from signing, should be presented.
We've been taught from early ages that there is not a stupid question, but many bad assumptions.
TO ALL NEW NOTARIES: Please read and learn; Every day is a chance to correct future mistakes.
Please disregard any clerical errors.
| Reply by titleme2nc on 6/5/09 2:48pm
Msg #291343
Forgot to mention;
The title company was soooo glad that I caught the problem before we finished.
And now I have my good foot in thier door for more jobs in the future. She asked for my name and # to put on her speed dail.
It dose build business to go the extra mile.
| Reply by Gary_CA on 6/5/09 3:53pm
Msg #291351
2nd thing to remember: Do as you're told.
As PAW explained that's got a lot of moving parts and you may not be as smart as you think...but that's not the point.
Even if you're right and TC is full of it... do what they ask...
You get paid to go correct their errors, you correct your own for free.
| Reply by LKT/CA on 6/5/09 2:01pm
Msg #291335
Re: None Borrowing Spouse
<<<If they say yes but they are not on the title I say that the other spouse MUST be present. Then at the signing I always get their signature on the Mortgage/Deed of Trust (and any Addendum, Allonge, etc.), the HUD, the Truth in Lending and at least three copies of the Right to Cancel. I don't care what they say OR whether their name is on those docs or not.>>>
CA is one of nine community property states (last I checked it was nine states, could be more) and I had a signing where the wife was not to sign anything. She was not on the loan and not on title, not in the trust, not on ANYTHING. Do I care? NOOOooooooooo!!!! Did I call anyone to question this? NOOOOoooooo!!!!! I don't ask people if they are married, if the docs don't give me a clue, I don't ask. Not sure what TC's/lenders/SS's you deal with but the ones I deal with, the spouse knows to be present for the signing if required.
<<<Somebody correct me if I'm wrong but this is the ONLY way I do things and I have never had a TC say I was wrong.>>>
The TC hasn't said you're wrong, YET. Give it time.....overstepping your boundaries may come back to haunt you at some point.
| Reply by Bob_Chicago on 6/5/09 4:08pm
Msg #291356
When in doubt, if name is not typed on dox and you think
that NBS maybe should sign "legals", call the TC or SS and ask.
If you can't reach anyone, my thought is too few sigs on "Legals" will have a
better chance of causing a non-funding than too many.
I believe that having a non-necessary party sign "legals" ( just like Oz and the Tin Man)
will not give them any rights that they do not already have.
Not legal advice yada yada.
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