Posted by Teresa/FL on 11/9/09 8:15pm
Msg #310420

Question/poll regarding missing "Exhibit A"

Florida prohibits notarizations of incomplete or blank documents.

I have been getting a lot of flack lately from companies who do not automatically include the legal address, either on the mortgage or as a separate exhibit. They tell me that they will attach it after the signing, before sending it to be recorded, and insist that no other notary has asked for this information.

I know this has been discussed before, but I am wondering about everyone's recent experiences with this issue.

Reply by jba/fl on 11/9/09 8:20pm
Msg #310424

I get Exhibit A's that are blank - am told TC will fill in prior to recording.

If they have it to bind, why can't they insert it into the doc pkg? I know, rhetorical question.

Reply by Teresa/FL on 11/9/09 8:26pm
Msg #310425

Exactly. I have even found mortgages recorded without the legal address.

Do you ask them to provide it before you conduct the signing?

Even when I mention it when accepting an assignment, I am being sent documents with a blank Exhibit A.

Reply by Marian_in_CA on 11/9/09 8:33pm
Msg #310426

I see this sometimes with DOTs here in California. I simply call and tell them that I'm happy to have the borrower sign, but I'm not notarizing it unless it's complete because I'm bound by state law. Of course, they know they can't record without a notary seal...so they're stuck.

Amazingly enough... they manage to get it to me within minutes.

Only one time did somebody try to push the issue. I went... and did not notarize the DOT. The SS was fully aware I wasn't doing it, too. Got a call the next day from the TC apologizing and offered to pay me to go back with a complete DOT.

If my document isn't complete -- I'm not notarizing. It's that simple. I don't care how "normal" it may be. Being routine does not equate to being right or legal.

I'm fully aware that I annoy TC and Loan officers all the time. And a lot of them get uppity with me saying, "Well, I'm a notary too you know..."

My response is always the same, "Great, then you show me in the state handbook or notary law where I'm wrong, and I'll do as you request. Otherwise, it isn't happening."

And for those that ARE notaries, I add, "And since you are a notary then you already know this is an illegal request so I'm more than happy to report you to the Secretary of State and let them handle it."

I may tick them off enough that I lose work... but far better than than my integrity and my commission.

Reply by Marian_in_CA on 11/9/09 8:37pm
Msg #310427

BTW... see msg #36313 where Paul addresses this. n/m

Reply by Teresa/FL on 11/9/09 8:50pm
Msg #310431

Marian - I was looking for recent experience

I am aware that it has been discussed before, but the message referenced is from more than 4 years ago.

I am glad I am not the only one who stands up to these people. It has been such a problem for me lately that I have added a note to my profile here and to my email signature.

I find it particularly galling when the TC includes in their directions that any improper notarizations will not be tolerated, then on the same document requests my signature and notary seal. That is in addition to not including the legal address on the mortgage.

Reply by OConnor Title Guaranty, Inc. - Closing Department on 11/9/09 8:47pm
Msg #310430

The lender could include the legal description, because they have received it as part of the title commitment, or preliminary title report, as it is sometimes referred as. But, then they would need to type it into their loan origination program.

The title company could supply it, but usually not with the actual mortgage of DOT - as they are unable to inject it into the lender's package.

The easiest way to do it is for the title company to replace the blank exhibit with the exhibit from the title commitment, as part of the post closing procedure. It is also easier for most, I would think, to scan the thing and send it to the notary than to argue with the notary over it. if the document gets recorded without the legal description, it is probably not a valid lien in most, or all, states.

Reply by BobbiCT on 11/10/09 7:07am
Msg #310465

Does missing "Exhibit A" really matter? It depends.

There is no "magic" answer. Every situation and document is different. I've heard various opinions and read caselaw from attorneys and Courts throughout the U.S. whether a missing "Exhibit A" aka "legal description" invalidates a lien. Answer: Maybe. Maybe not.

Notaries are not supposed to notarize documents with "blank spaces" or "missing" pages. Problem is, in the real legal world, it also "depends" on the real-legal-world definition of "blank" or "missing." Result: notary definitions and black-and-white read of laws may and will conflict with the legal opinion of the attorney dealing with that one specific issue at the time. Result: No clear answer for the notary and no one wants to write a black-and-white, put it in your state laws definition of "blank" or "missing" describing every legal document and every legal description. It's a case by case decision. Alot like when the NNA drafting committee disagreed for a year over one word - "competence," which resulted in the phrase "willingness to sign" because depending on your perspective and the specific circumstances, definitions vary (notary, attorney, doctor, Court cases, state and federal laws, state and federal regulations, etc.).

As to a "legal description," in many lawsuits and many real property attorneys opinions (including title companies), enough text to clearly identify the real property may be "good enough." Multiple cases leading to conflicting rulings: Missing "Exhibit A" left a question as to which or what real property was attached by the document. In others, the text within the document (say, Lot 53 of the 1995 Smith Subdivision map on file with the Town Clerk, and known as 25 South Butterfly Road, Anytown, CT) clearly defined and identified the specific property: ruling that the missing "Exhibit A" did not matter.

Personally, this is one of those unsolvable conflicts between notary public (missing page) and attorneys & the title companies who insure the mortgage or deed. In a perfect world, the solution is that the lender or title company should attach the Exhibit A before sending the mortgage deed to be signed. IT IS NOT IMPOSSIBLE: The prudent lender and title company already have that description in hand. Prior to approval to close, SOMEONE at the lender's office had to compare the legal description from the title search, proposed title insurance policy or commitment, and the appraisal to make certain the property being mortgaged was the same property that was appraised. Oops ... what am I thinking In short: when the closing package is put together, there is only one excuse for not attaching the "Exibit A." The page can be scanned directly from the title commitment. The excuse for not doing it: poor quality control because in order to get the loan out the door fast, the legal description was NOT reviewed and prepared for the mortgage deed (i.e., better to have no legal description than have a wrong one before the borrowers, so have the title company do it AFTER the borrowers sign). KISS solution to "missing Exhibit A" that I have seen (and appreciate): Exhibit A is attached. The only text added to it is "25 Butterfly Road, Anytown, CT". It is not missing

Reply by PAW on 11/10/09 8:11am
Msg #310476

Re: Does missing "Exhibit A" really matter? It depends.

>>> ... whether a missing "Exhibit A" aka "legal description" invalidates a lien. <<<

That is NOT the issue. The issue for notaries is whether or not the inclusion of Exhibit "A" is required in order to perform the acknowledgment notarial act. It is immaterial to notaries whether the document is valid or invalid. It is directly material whether the missing rider constitutes an incomplete document. According to the ASN and title company attorneys and underwriters that I have spoken to about this, at least under Florida statutes, the missing rider, though not necessarily making the lien invalid, does make the underlying "parent" document incomplete, and therefore, cannot be notarized pursuant to Florida statutes.

Florida statutes also state what a "legal description" of property is. And it is not the street address as that's not the way property is cataloged and recorded. Florida property legal descriptions must be "meets and bounds" or "blocks and lots" as referenced in a plat map.

Reply by BobbiCT on 11/10/09 9:08am
Msg #310488

My apologies. I didn't realize your poll was FL specific

I misread your question: I thought you were asking for general answers, not specific to the State of Florida.

FYI. CT and a few other states that I know of are different. In some caselaw and CT Standards of Title, "21 Butterfly Street, Anytown, CT" has been found to be a complete legal description. Granted, some attorneys (and title searchers, inlcuding me) didn't like the finding that the description wasn't more descriptive, but it did not invalidate the recorded document, make the document "incomplete" or put at issue if the underlying real property was the property intended to be liened. Every case is different. For me, it was creepy to learn from title company attorneys that under certain circumstances an "Exibit A" page that is completely blank except for the text "Exibit A" may be OK and the document construed to contain a "complete legal description." This has been opined by different title insurance company attorneys (including claims attorneys) at a number of regional title insurance company meetings; however, Florida was never discussed. .

Reply by Teresa/FL on 11/9/09 9:11pm
Msg #310432

I wish FL law included penalties for illegal notarial

requests. People just don't care if the notary is the only one penalized for an improper notarization.

Reply by Marian_in_CA on 11/9/09 9:32pm
Msg #310441

Re: I wish FL law included penalties for illegal notarial

I'm so glad California law allows for it... and I wish all the others states did, too.

It really helps us defend ourselves.

Reply by CaliNotary on 11/9/09 9:35pm
Msg #310443

Re: I wish FL law included penalties for illegal notarial

"I'm so glad California law allows for it"

In theory at least. In my one experience attempting to make a report to the SOS about one of my notarized documents that had been altered, they didn't give a flying f*** about it and told me to report it to the police.

Reply by Marian_in_CA on 11/9/09 11:34pm
Msg #310451

Re: I wish FL law included penalties for illegal notarial

They were right, though. The first thing to do is go to the police and file a report... even if they think you're crazy. The best wasy to do that is simply write up your own statement and submit it with copies of the handbook. The police don't give a hoot, but they have to take the report

When it comes to the SOS... they usually work much like the FTC. They only investigate when they get a significant number of complaints or reports that show a pattern or if there is a high profile situation. The doesn't negate our duty for reporting...and if all else fails you also have the ability to file a civil case on your own if you have damages.

If you have a police report, and a letter to the SOS detailing the problem that you sent certified. Then you've done your job. Because you know DARN WELL that if there is a problem where you can't provide documentation, you're toast.

Reply by CaliNotary on 11/10/09 10:32am
Msg #310509

Re: I wish FL law included penalties for illegal notarial

I did call the police, they didn't do anything either, told me to take it up with the county recorder. I called the county recorder, they didn't do anything, told me to take it up with somebody else (it's been awhile, I don't remember who). I think I even called whoever they told me to take it up with, and they passed the buck as well, and at that point I finally said "screw it".

Reply by MW/VA on 11/9/09 9:20pm
Msg #310434

"Florida prohibits notarizations of incomplete or blank documents".
IMO you are interpreting this too literally. We don't notarize the Exhibit A (legal description).
I personally think we hurt our profession when we overstep our bounds, and start trying to tell the tc how to do their business. As far as I know, a DOT won't record in most places without the legal description. That's just an opinion and I'm not going to cross that line into UPL. I think making a huge issue of a missing legal description is UPL!

Reply by CaliNotary on 11/9/09 9:25pm
Msg #310435

"IMO you are interpreting this too literally. We don't notarize the Exhibit A (legal description)."

I completely agree. Every DOT I notarize has the page count at the bottom of it, and Exhibit A is NEVER part of that page count. It may be required to record the DOT, but it's a separate document than the DOT.

Reply by Marian_in_CA on 11/9/09 9:30pm
Msg #310438

That's true... the exhibits are often appendix type things, though some are not. It really depends on the format of the document.

There are some, though, under the legal description, it says, "see attached" --- in those cases, I want to see that "attachment" just to be sure that it exists in some form.

As I said earlier, though... usually when I ask, which isn't often, they get it to me quickly with little if any fuss. Most thank me for paying attention.

Reply by Teresa/FL on 11/9/09 9:26pm
Msg #310436

Please read the opinion from the ASN in msg. 36313

It supports my position and was a direct response to a request from Paul Williamson for clarification.

Reply by Pat/IL on 11/9/09 9:27pm
Msg #310437

Marilyn, making a huge deal about the missing exhibit A may be an annoyance to the hiring party, but I can't see how it would be considered UPL. The notary is simply refusing to do their job incorrectly, according to their state's statute. We all need to know and follow the laws pertaining to our work.

Reply by Teresa/FL on 11/9/09 9:31pm
Msg #310439

Thank you Pat/IL

I do not "make a huge deal" about it. I ask for their cooperation so that I am in compliance with FL law. I do not expect out of state TCs to know FL notarial law, so I usually mention it when I receive the first call or email regarding the assignment and follow up if the documents are received without the required information.

Reply by MW/VA on 11/9/09 9:33pm
Msg #310442

Re: Thank you Pat/IL

Why ask for a "Question/Poll" if you are only seeking those who agree with your position on this?

Reply by CaliNotary on 11/9/09 9:37pm
Msg #310444

Re: Thank you Pat/IL

Isn't that the way it always is on here? People ask for opinions, argue with those who offer up different opinions than theirs, then only thank the ones that agree with them.

Reply by Pat/IL on 11/9/09 9:41pm
Msg #310446

Re: Thank you Pat/IL

Hey, when you're right you're right.

Reply by CaliNotary on 11/9/09 9:43pm
Msg #310447

Re: Thank you Pat/IL

I know that already because I'm always right

Reply by Marian_in_CA on 11/9/09 11:28pm
Msg #310450

Re: Thank you Pat/IL

All of us are always right... even when we might be a wee bit wrong.

Reply by John/CT on 11/10/09 8:01am
Msg #310472

Yes, I also have my faults ...

but being wrong isn't one of them

Reply by Teresa/FL on 11/9/09 9:53pm
Msg #310448

Re: Thank you Pat/IL

The question was not necessarily looking for agreement, but asking if others also saw this as an issue.

You obviously do not see it as an issue in VA. I am not a VA notary, so would not give an opinion on your stance regarding VA notary law.

I disagree with your opinion regarding FL notary law. FL notary law does not allow signatures to be notarized when a document is blank or incomplete. If the legal address is referenced, but not provided, the document is incomplete and no notarization can be performed.

We are all entitled to our opinions. I am willing to agree to disagree with you on this one.

Reply by MW/VA on 11/10/09 8:08am
Msg #310474

Re: Thank you Pat/IL

VA law has similar language about completing docs with blanks. IMO it's all about interpretation, which is what ASN offered. To my knowledge, interpretation of law is the practice of law.
You began this thread by stating that you were getting a lot of flack from companies who didn't see it your way. It is obviously a huge issue for you, as you have it included in your profile.
I can say that I see a completed Exhibit A-Legal Description w/maybe 20% of my signings.
Sometimes I will see notarial certificate language that complies with FL law--asking for type of id presented, etc. Since I'm not in FL, should I refuse to complete it with that language? IMO this is all "over the top".

Reply by Bob_Chicago on 11/9/09 11:59pm
Msg #310453

Not trying to be a wise guy, and support upholding

your state's laws, etc, etc, but what if there was an exhibit A atached
that only said " Exhibit A" or if Exhibit A said something like,
Lot 1 in Dade Ckounty, Florida.
Would that be ok for you.
The only real risk is to the lender and the Title Co.
The identily of the PIQ by address and usually some type of tax parce ID # is all over the dox in numerous places.
I think that, at worst, it is a matter of the intent of the law vs. a technical interpretation of
notary law. The reason why you should not notarize a blank doc, is to prevent something
to be filled in later to the detriment of the signer of the doc. Clearly not the case if
the only "blank" is the missing legal description of the mortgage. We as NPs, are
generally not capable of determining if the CORRECT legal is present even if it is
attached or incorporated into the doc. The correct legal is the TC's problem , for
which they are being paid a whole lot more than we are.

Reply by Pat/IL on 11/10/09 12:39am
Msg #310457

Re: Not trying to be a wise guy, and support upholding

Dear wise guy,

When the legal is referenced by "see attached" or some such language, then the legal description is what should be attached. Lot 1 in Dade County, Florida does not describe any property sufficiently, and neither a parcel number nor a street address is a valid identifier of real estate, for the purpose of the clerk/recorder's offices (in Illinois anyway, most likely in any state).

The original question has to do with notarizing an incomplete document in Florida. From the responses above, the correct answer appears to be to have the complete document assembled at signing. Whether it's a big deal or not is for the Florida notaries to decide.

As for myself, in Illinois, I have never given much of a thought to it. I know it will be added afer the signing. I don't consider it to be a big deal. But it would be nice if the state laws and the industry practices would jive, so people would not have to worry about this kind of thing.

Reply by ReneeK_MI on 11/10/09 5:01am
Msg #310462

Agree with the wise guy ...

and am SO grateful that in MI, we are NOT prohibited from notarizing a doc that has a blank, so it's a non-issue. If I lived in a state that prohibited this, I WOULD take this to the legal dept of the SOS and obtain a written opinion, to be done with all this speculation - and it would be my opinion in asking the SOS that the property address and TIN would suffice for notarization purposes.

The T/C is the responsible party (according to Closing Instructions) to record the lien against the correct property (i.e. legal description). Usually they can simply cut/paste the legal description from their file. Since this is absolutely critical information which puts the T/C at risk, they (usually) have a strict protocol for attaching the legal description before having the lien recorded - and usually that's not done by the same person who scans/ships out closing packages. This is just the way their machinery works and the design is to PREVENT errors. (While it also poses a risk to the lender, the lender would present this against their lender's policy, or alternatively against the closing instruction contract & CPL)

Reply by MW/VA on 11/10/09 8:01am
Msg #310471

Re: Not trying to be a wise guy, and support upholding

Well said, Bob. IMO the rules about notarizing an incomplete doc would be, for example, if the Note had blanks instead of detailing the amount, term, payment, etc. It would be the equivalent of signing a blank check. Or a POA that didn't specify to whom the powers were being given, etc. We do NOT have any authority over the content of the docs.

Reply by PAW on 11/10/09 8:33am
Msg #310480

Re: Not trying to be a wise guy, and support upholding

Florida has a clear definition of the "legal" description. It is not merely an APN or street address, but must clearly state by "meets and bounds" or "lots and blocks". This applies to deeds as well as Mortgages.

There have been cases, two that I know of, where foreclosure proceedings were initiated against the incorrect property due to an incorrect legal description being attached to the Mortgage. Granted, this is not of concern to the notary signing agent, but as a prudent homeowner in Florida and a prudent signing agent, ensuring the property description is correct is critical. And, most homeowners that I have spoken with over the years, are well aware of the legal description. Though they can't recite it verbatim, they simply can look at their property tax bill, land use record, property card and, in some instances, their utility bill. From my experience, Florida homeowners are more aware of the legal description than homeowners in many other states, simply because the legal description is the primary basic element used to identify the property.

Reply by ReneeK_MI on 11/10/09 9:13am
Msg #310489

foreclosing on wrong property ...

might be a bit of a headache, but how can you foreclose on property that's not securing any Note?

To clarify - I didn't mean to imply that an address and/or the APN/TIN# is the definitive "legal description", but as I said - it's good enough for me as a signing agent, to comfortably notarize the mtg.

The only times I've had to pursue any issue relative to this has been where adjoining lots or parcels owned by the same borrower have been included in the lien, when it was not intended by them to be secured as such. These situations, people are usually pretty savvy and already know they do/don't want all adjoining land included, and they're watching for it.

Reply by ReneeK_MI on 11/10/09 9:14am
Msg #310490

Oh - I think I said that somewhere else - ok, I'm done. =) n/m

Reply by MW/VA on 11/10/09 10:00am
Msg #310502

Re: Not trying to be a wise guy, and support upholding

I completely understand the issue of legal descriptions of the property. What I can't agree with it that it is the NSA's job to verify same at the signing.

Reply by jba/fl on 11/10/09 10:10am
Msg #310504

I don't believe it is the NSA's job to verify same at the

signing, but in Florida most of us (FL signers), per PAW's notation, do know our legal description well enough to catch it at the table should we see it. I have been able to recite mine since I bought my property in the late 70's. If I were to see Block B instead of Block A, I would know something was amiss.

If I had a huge piece of property with a huge property description, I still think that I would recognize key pieces set forth, if not all of it.

Reply by jnew on 11/10/09 11:01am
Msg #310512

Re: I don't believe it is the NSA's job to verify same at the

What do you tell the borrowers when they ask why there is no legal description on the document. The truth is that the TC is doing half a job by not including a full legal description on the document at the time of signing. The borrowers also have proof that the document is incomplete when they are handed a copy of the closing package. Asking for a legal description to attach to the document when signed does not seem like an unreasonable request for the title company. It is also an expense for the TC if they put the wrong legal on the document after closing and have to clean up the errors at the Court House.

Reply by ReneeK_MI on 11/10/09 11:45am
Msg #310518

On the extremely rare question about it, what I tell them is

that the legal description being used by the title agent is included in their title commitment, if they have a copy of that. The protocol is rigid and designed to PREVENT errors, not cause them, and the risk to the borrower is nil - should the mtg be recorded with an error in the legal, it can be re-recorded to correct it. Meantime, until it is ...the Note isn't properly secured - the risk is to to title, and to the lender if the agent isn't really an agent ...

This is another of those parts of the machinery that NSA's seem to want to change, but I don't see good reason, so for ME it's a non-issue. The person responsible for recording will pull the legal description THEMSELVES, to ensure it's correct. They don't take anyone's word for it, they don't allow for the potential for fraud (borrower's attaching someone else's legal - think that's never happened?), they don't use 'handled' paper, they do it themselves and then record. Only a fool of a title recorder would record using a legal description that was sent/attached/included by someone else, particularly someone who stands to GAIN if it's incorrect.

Reply by parkerc/ME on 11/10/09 4:15pm
Msg #310545

Agree with wise guy, Renee, and Marilyn

Except for states that have specifically addressed this issue in their notarial handbook (e.g. FL), MHO also is that this is overkill and would be bordering on UPL in my state, especially since the street address is included in the text of the Mortgage/DOT, the notarial statement is usually included on the last page, e.g. pg 17 of 17, and the Appendix A, either completed or blank, follows that as an unnumbered page. It's the Recorders job to ensure that document is complete before recording. And somewhere I read that it is not our job to read the document itself . . . which we would have to do to determine whether an Appendix A was needed . . . just check to see that the document preceding the signatures contains no blank lines. Someone here said, "Don't analyze, just notarize."

Reply by Bob_Chicago on 11/10/09 12:23pm
Msg #310524

One further point. If you are going to insist on an Exhibit

A legal being with the pkg at signing, you best make sure that it is there
prior to meeting with the bwr.
If you refuse to notarize the mtg/dot at the closing table due to lack of a "legal'
you mayl have all kinds of probems.
NSA "I see Mr bwr that the lender neglected to include the legal on your mortgage. Therefore
I can't notarize it. Since I need to notarize it at the time of signing, we can't proceed with
the closing. "
Bwr "What are you talking about ???!!! This is a single family house on a subdivision lot. What legal description besides mine would they attach?? My lock expires tomorrow (I need the cash out to pay off my delinquent credit cards"( If I don't pay off the old mortgage right away, they will foreclose.) etc. etc.
NSA "Sorry, I need to follow the law. Have a nice day"

Reply by PAW on 11/10/09 12:46pm
Msg #310528

Re: One further point. If you are going to insist on an Exhibit

Exactly the reason to ensure all documents required for the signing are there BEFORE going to the borrowers. I would rather be a few minutes late, reviewing the documents, rather than having to abort the signing all together.

For those times when docs are sent directly to the borrower, I give title a call to ensure Exhibit "A" is included if necessary.

Lately, I've not had any problems getting the legal description for inclusion with the Mortgage,when required. Sometimes, the title company electronically sends me the entire title commitment rather than extracting a single page out of it.

I've also noted lately that more and more the legal description is actually being typed (or entered) on the appropriate page in the Mortgage rather than being attached.

Reply by Shelly_FL on 11/13/09 9:03pm
Msg #310966

Yes, I'd say its 40/60-it's missing or blank. Companies tell me all the time not to worry about the LD not being included. When I tell them the borrower will need to write in the legal themselves in order for me to notarize, most will email it to me. If they still resist, I don't argue anymore, its a waste of breath! I explain our dilemma to B and they decide to find the LD in their previous mortgage or tax bill or fill in the blank with a note saying it was not included, "in their own words", not mine.

Regardless of the situation, I always note in my journal if there was an Exhibit A to the mortgage in addition to the page numbers, with any details like "noted blank by B" or "LD wrote-in".