Posted by GOLDGIRL/CA on 8/8/10 12:03am
Msg #348137
Follow up to (much) earlier post
NPs are required to follow their state's notary laws, and other states have to accept what we do (whether they like it or not!). This has something to do with interstate commerce, full faith and credit and other federal laws about which I (sadly) know nothing. So why doesn't the same apply to real estate laws? If a signing is in a nonattorney state but the property is in an attorney state, so what? In other words why was it RickG's responsibility to inquire about South Carolina laws? Again, if the property is in a state that requires witnesses, but the signing is in a state that doesn't, then don't the laws in the signing state take precedence??? Obviously, I've never had any of these type signings .... It's sad RickG just got the runaround today and that he was put in a position of having to turn down the signing because nobody would give him a straight answer. But why did he even need an answer? But we've all been around the block enough times to know, like he did, that if the least little thing went wrong he'd be blamed and not get paid.
| Reply by Lee/AR on 8/8/10 1:39am
Msg #348139
Good question! The witness or possibly ink color may be a recording requirement that is unable to be ignored. (Why... I dunno, but recording offices sometimes seem to be little kingdoms.) But... the rest is a good question. I often wonder about (is it Nevada?) that requires a purple stamp....and how does that affect the recordability in a state where they want black ink only?
| Reply by Susan Fischer on 8/8/10 3:06am
Msg #348141
Oregon State Law requires Black Inked Stamps. Other
States must accept that color because they have no right to change another States' Laws.
Comity. Reciprocity. It's why I line out/init, for instance, CA specific verbiage, because I don't operate under CA Law.
If I'm not mistaken, every State has that autonomy. We have no choice in Jurisdiction of Law. It's our State's Law, Stamped/or not, in the County where our feet are planted, and legally recognized by every other County and State. Correct?
Someone tries to tell me I have to use Green/whatever Ink? No can do...nor do I need to...
| Reply by PAW on 8/8/10 6:59am
Msg #348147
Signing location v property location v recording location
>>> Again, if the property is in a state that requires witnesses, but the signing is in a state that doesn't, then don't the laws in the signing state take precedence? <<<
The laws of the state the action takes place is what rules.
For notarial procedures, the laws, rules, policies and procedures in which the notarial act takes place is what determines how the notarial act is to be effected.
For recording procedures, the laws, rules, policies and procedures in which the recording takes place, which usually corresponds to the location of the property, is what determines how the act of recording is to be effected. E.g., witness requirements.
For deed, mortgage and DoT preparation, the laws, rules, policies and procedures in which the loan (if there is one) is effected (location of the lending institution) and the location in which the property is located is what determines how the instruments of real property transactions are effected.
As others have pointed out numerous times, even though states have a high degree of autonomy, there are overriding federal laws, rules, policies and procedures that are nationally effected and states and other local governments cannot usurp.
| Reply by Cari on 8/8/10 10:18pm
Msg #348184
Re: Signing location v property location v recording location
"For recording procedures, the laws, rules, policies and procedures in which the recording takes place, which usually corresponds to the location of the property, is what determines how the act of recording is to be effected. E.g., witness requirements."
If the closing is in a state, where witnesses are NOT required for example, then its the responsibility of the LO, TC OR SS to advise the BO that they'll need any witnesses.
IMHO...its NOT the agents burden to know what other state laws are when it comes to recording requirements, etc., they should be only concerned with using the proper notarial certificates and verifying the signer, in accordance to their own state laws...that's about it.
If a TC or SS screws up and fails to advise the notary of this little tid bit, and asks the agent to go back out, that's another fee as its not the agents fault for not knowing.
And if the OP didn't accept a closing because they lacked this knowledge, then their an idiot, as they lost out in a chance for making money.
| Reply by PAW on 8/9/10 6:52am
Msg #348197
Re: Signing location v property location v recording location
>>> If the closing is in a state, where witnesses are NOT required for example, then its the responsibility of the LO, TC OR SS to advise the BO that they'll need any witnesses.
IMHO...its NOT the agents burden to know what other state laws are when it comes to recording requirements, etc., they should be only concerned with using the proper notarial certificates and verifying the signer, in accordance to their own state laws...that's about it. <<<
I certainly agree that the lender, TC and SS should know what is needed for the signing. But I also think that a professional and prudent signing agent should also know things like witness requirements. It's not like there's a lot to remember. A signing agent, imo, is concerned with a lot more than just "using the proper notarial certificates and verifying the signer, in accordance to their own state laws". I suggest that about 10% of the signing is notary-centric. The other 90% is signing agent centric.
| Reply by Linda_H/FL on 8/9/10 7:29am
Msg #348200
IMO it's not necessary for SA to know the laws of each and
every state....however, IMO all SA's should adopt a simple procedural policy - if you have a signing and the property is in another state...ASK!! Remind title/hiring party that, since the property is in another state, you'll need specific written instructions for proper execution of the documents, especially the security instrument. (emphasis on WRITTEN INSTRUCTIONS)...
Not that hard to remember to do and, IMO, part of the SA job.
| Reply by Les_CO on 8/9/10 10:13am
Msg #348203
Re: IMO it's not necessary for SA to know the laws of each and
I totally agree…call.
However many times it’s difficult to reach Title, or the SS, and if you do, many times scheduler at the SS hasn’t a clue, or sometimes the title person doesn’t know. Or sometimes neither has anything to do with the pending problem. Example: The Notary receives e-docs, and unknowingly has their printer set to ‘shrink-to-fit’ and the recorder will kick out anything smaller than a 10 font. Or the recorder requires a 2.5 inch margin and the notary unknowingly writes, or puts their stamp in this area. Or the notary routinely has the borrower, and they themselves sign in blue ink because it stands out, and the property is in Cook CO IL where the recorder ‘requires’ black ink {I’m not positive about this but Bob_Chicago would know}. Also many people that work in a small Title Company that primarily does local business may not know other States requirements. Having just a little knowledge can make the NSA’s job much easier. JMO
| Reply by PAW on 8/9/10 12:06pm
Msg #348207
Re: IMO it's not necessary for SA to know the laws of each and
Absolutely call!! Never take it upon yourself to modify in any way, the documents without approval from the title company and/or lender.
>>>Also many people that work in a small Title Company that primarily does local business may not know other States requirements. Having just a little knowledge can make the NSA’s job much easier. JMO<<<
Most every title company has an underwriters manual available for reference. And every underwriters manual that I've seen, offer state specific rules and procedures. Therefore, imo, even the closer in a tiny title company should have access to the information. So if you call someone at the tiny title company, and the person doesn't know the answer, then politely ask them to find the answer, ASAP. If you "know" the answer, you can query the title company or lender to ensure your knowledge is correct. Even if they provide incorrect information, and they vehemently refuse to hear you out, follow their instructions. Get it in writing too. Document the situation, what you were told, by whom, and what you think or know is the proper procedure. Don't provide the information to the borrower... you may need it if anything comes up later.
| Reply by Cari on 8/9/10 12:47pm
Msg #348213
agree but I don't ask because that is what
nsa instructions are for...and the responsibility of the SS or TC to provide such instructions.
If these are in the packet, then obviously, an agent doesn't have to ask. But if they're not, then by all means, ask your hiring party if there's anything you need to know in particular to the closing.
I've yet to have a closing where the written notary instructions were omitted. For me its either on the confirmation email, or sometimes intertwined with the Lender to TC instructions.
| Reply by Les_CO on 8/9/10 1:12pm
Msg #348219
Re: agree but I don't ask because that is what
Not to belabor the point, but it seems to me we just had a poster here although smart enough to ask, (many would not have) spent a day and a half trying to get answers/instructions, and could not. He did just what I’d have done in the same circumstance, he gave the assignment back.
And as for an underwriting manual, I’ve talked to some people at title that need help getting dressed in the morning, let alone know what or where an underwriting manual is.
As to following their instructions Paul is 99% right. I do unless I won’t, in which case I don’t do the job.
As to a lot to know..I agree.
JMO
| Reply by Cari on 8/9/10 12:41pm
Msg #348210
Re: Signing location v property location v recording location
"A professional and prudent signing agent should also know things like witness requirements"
Sure they should... if its for their own state. Just because I don't know what the notarial requirements are for another state, doesn't make me any less of a prudent professional signing agent. A LOT of newbies read this forum, and to write such a statement may be sort of misleading.
To learn other state's notarial requirements IMO, is not at all necessary nor really needed, unless that agent holds dual commissions.
Its totally irrelevant to know what other states requirements are, because agents are to follow their own notarial laws anyway...soooo....
And, "It's not like there's a lot to remember" ah, yeah there is...lots to remember! Some state's have seriously crazy notarial laws, while others have some really lame duck laws. IMO, that's waaayyyy too much knowledge for one person to absorb, though having that knowledge would be a definite perk on the 'ole resume! 
| Reply by PAW on 8/9/10 1:02pm
Msg #348217
Re: Signing location v property location v recording location
I guess I wasn't clear in my previous post when I said it's not like there's a lot to remember. I was referring to the witness requirements for other states, and not talking about notary laws. (Take your notary hat off and put your signing agent hat on.) BTW, when talking about witness requirements, that is not a notarial requirement in most cases, but a recording issue. So with any out of state properties, I always inquire if there are some idiosyncrasies that I need to be made aware of.
| Reply by Cari on 8/9/10 5:03pm
Msg #348233
Re: Signing location v property location v recording location
...my the point is, its not a notary/agent issue regardless which hat they wear...
| Reply by Les_CO on 8/8/10 10:06am
Msg #348156
Utah requires a purple notary stamp.
And as you say Recorders pretty make their own decisions about what they will or will not record.
Some of what we as do as NSA are not covered by notarial law but by federal and state laws.
If a document notarized in Utah, but recorded in say FL (I believe FL requires a black ink stamp?) it would still be recordable, because of the before mentioned mandated reciprocity.
JMO
| Reply by Linda_H/FL on 8/8/10 8:48am
Msg #348151
My quick thought:
IMO it's the way the laws are drafted and adopted. If language is included in the state's specific law that addresses the issue, such as (and I paraphrase) " attorneys are required to oversee (or conduct) any real estate closing resulting in a lien (or encumbering) real property located within the state..." then closings affecting that state's properties would need to comply, no matter where they occur. If the statutes merely say something to the effect of "all real estate closings occurring within the state must be conducted by an attorney licensed within the state (or "have attorney oversight") then the closing procedures within the state where the closing actually occurs would prevail. However, specific state recording requirements must be followed to ensure a valid, recordable security instrument.
MHO
| Reply by Les_CO on 8/8/10 12:24pm
Msg #348165
Goldgirl
“This has something to do with interstate commerce, full faith and credit and other federal laws”
What you are referring to I believe is in the US Constitution….Article four, section one.
| Reply by Marian_in_CA on 8/8/10 10:01pm
Msg #348182
This is true... and not just for interstate issues but also when dealing with Federal documents at a state level. One of my biggest pet peeve documents is the "Statement of Consent or Special Circumstances" for parents who need to get a child's passport.
The Federal Government wants the non-appearing parent's signature to be notarized -- but they leave NO room for a seal, and of course there is no notarial certificate. And, if you attach a loose form, they'll reject it. I've been told multiple times that the passport agency refuses to accept additional paperwork... so I have to use a jurat stamp on the 2nd page of the form and I have to specifically write out the following on top of it...
"California Government Code 8202(b) states, 'To any affidavit subscribed and sworn to before a notary, there shall be attached a jurat in the following form...'"
If I don't add that language, it gets rejected because I didn't put my seal where "they" said it belongs... and I have to tell the parents if the passport agency has questions about it, they need to contact the Secretary of State because I have to comply with State law and jurat wording. The passport people get snippy because they say I "did it wrong" -- and I've had one call me directly. All I can do is tell them to have an attorney look at the state code.
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