Posted by snowflake/PA on 2/15/10 2:39pm
Msg #322893

Borrower tape recorded entire closing

This was a first for me. Closing had been rescheded several times. LO called me to ask if his borrower had been difficult with me. He hadn't been. Not until time of closing. When I arrived and we started to sign he told me he would be recording the closing since he's been burned in the past. I knew if I asked him to shut the recorder off, the deal would have fallen through. At one point we even had to contact the LO from the table, Borrower put him on speaker and continued with the taping. Would you have asked the borrower to stop and lose the signing as we are professionals in our fields or would you have let well enough alone?

Reply by Teresa/FL on 2/15/10 2:48pm
Msg #322894

I would not have a problem with the closing being taped. I have done will signings where the entire process was video taped and I thought that was a good idea.

I would have insisted that the date, time, and names of all persons present be spoken for the record and that the time be stated at the conclusion of the closing. This would indicate to anyone who might review the recording later how long the closing actually took and should make it difficult for anyone to edit the recording later.

Reply by Teresa/FL on 2/15/10 2:49pm
Msg #322895

And I might make my own recording as a backup

since I have a digital voice recorder that I carry and use when I perform some mystery shops.

Reply by Tess on 2/15/10 2:56pm
Msg #322896

Not a problem, but I would have stated for the record what my position was in the process and that all questions about the loan shall be referred to their LO and or TC.

Reply by Notarysigner on 2/15/10 3:04pm
Msg #322897

I would have asked him/her to state the reason for the recording and added it was without a disclaimer or my written consent. Then whenever there was a question that wasn't a where question I would refer to either the lender or TC. I definitely would not call anybody and asked what to do.....I'm notarizing signatures, in silence.

Reply by Joan_OH on 2/15/10 4:45pm
Msg #322914

This WOULD NOT have happened in my closing, Period

As a professional, you should have called the title company/Lender to make them aware of what was going on. My guess is if you would have called and asked if it was ok for the buyer to record the closing they were insuring (and yes, they are insuring you too), they would have said no. This would be after they checked with legal.

Quite frankly, if it is ANYTHING out of the ordinary, a call should be made because it can be a liability to both the title company and lender and they need to make the determination whether this is allowed.

I'm not worried about what I say or do. However, I do realize I am just a small part of the process and those with the deeper pockets are those that are held liable - and that is not me. If you are going to open them up to additional liability, they should at least be given the courtesy of a call.

For the record, I was asked to be taped and title stopped the closing. Good thing I asked. If buyers want representation, then they can hire their own lawyer to review their docs. They're not going to pull me into their blame games.

Joan-OH

Reply by dickb/wi on 2/15/10 5:59pm
Msg #322920

i am with u joan............. n/m

Reply by Charles_Ca on 2/15/10 7:00pm
Msg #322929

Thanks Joan, the voice of reason.

I rarely get into these discussions but I think that Joan nailed it. You have no idea what kind of morass you might have blundered into. These discussion of disclaimers and how to CYA are for naught if you are up against professionals or someone who has an axe to grind. Attorneys are cheaper than going to court and most are available for free if you query your Title Company. Don't be a $hit-house lawyer, do your job, you aren't paid enough to second guess the outcome.

Reply by Dorothy_MI on 2/15/10 7:31pm
Msg #322932

I'm with Joan too n/m

Reply by JanetK_CA on 2/15/10 7:56pm
Msg #322936

Yep, me too. Can't think of a good reason for them recordin

other than to try to find something to nitpick and dispute. Well, the other possibility might be if they were a new NSA and wanted to copy the notary's closing technique. (I wouldn't be thrilled with that idea, either.) But I do think Joan nailed it.

Reply by Notarysigner on 2/15/10 7:58pm
Msg #322937

Re: Too bad........

"These discussion of disclaimers and how to CYA are for naught if you are up against professionals or someone who has an axe to grind."

I AM a professional.....ever been a part of a deposition? Did you refuse or just talk like your subpoena or lawyer suggested. Did you know you can notarize depositions? Do you feel threatened because you can't believe what you're seeing or doing? I'm a Notary and can do it, I am not afraid of dealing with adversity and doing what's right! IMO

Reply by Joan_OH on 2/15/10 8:44pm
Msg #322942

Re: Too bad........

My point is, it is NOT for us to decide whether borrowers can record the closing or not. That is fully the decision of the title company or lender we are representing. They should never be left out of the decision. It's not OUR closing, but THEIRS and they are carrying all the liability. A Professional who understands this business and what part they play in this process would have bumped the request up the ladder.

Personally, I wouldn't be caught dead on camera even if title DID allow it. At that point, it becomes my decision, but only after bumping up the ladder.

Joan-OH

Reply by Susan Fischer on 2/15/10 11:11pm
Msg #322956

Your Borrowers Are My Neighbors. That's my motto.

The borrower's interests as well as the lender's, etal, are equal priorities.

I am in the borrower's home. I understand my function. I don't give opinions, except about adorable fur-faces of all kinds, and I don't practice law without a license. (And if you ever go to law school, you'll find you *will* be caught, dead or alive, on camera at least once, hopefully more.)

So, I agree, Joan, it is not up to anyone but the borrowers in their own home, document the signing of a mortage transaction.

Reply by Joan_OH on 2/15/10 11:28pm
Msg #322958

Re: Your Borrowers Are My Neighbors. That's my motto.

The borrower's interests as well as the lender's, etal, are equal priorities.

BUT it's the lender who is loaning the money (and they don't have to) and it's the title company that's insuring the transaction, so they are the ones who get to decide if the closing is recorded or not. Recording the transaction is not "normal". Therefore, it must be brought to someone's attention before proceeding.

Joan-OH

Reply by Susan Fischer on 2/15/10 11:53pm
Msg #322959

And it is the borrower who is consuming the debt. Don't

forget the borrower, who likewise, doesn't have to consume -that- lender's money on those terms/conditions.

Reply by John Schenk on 2/15/10 8:05pm
Msg #322938

I agree, Joan.

I'm not going to go through that without extra compensation, which of course would have to be approved. No audio and no video for me, unless somebody really wants to pay a major premium for the closing.

I don't think the earlier analogy regarding videotaping a will signing really fits here. We occasionally videotape will signings, but that's "normally" in a situation where we have sent an elderly individual to a shrink, and gotten an opinion letter as to his/her mental competency, and then videotaped the will signing on top of that to insure that their wishes were carried out in the event the will was later contested. Actually did one of these again a couple months ago. The opinion from the shrink, and the videotape, make it pretty solid will, in the event it ever gets contested. However, that's simply not a situation present during a loan signing. Will I do it? Yes, indeed, but not for what I charge as a minimum fee. I've never had this situation arise before, and not sure what I'd quote, but I'd estimate that I'd charge at least another $250.00, and allow at least another 1-2 hours for the closing, counting on it running nearer an additional 2 hours rather than just 1. Throw another $250.00 on top of that and they can even videotape it, IF it's approved up the chain, which it would have to be to get the additional fee approval.

If it was an evening closing, and this got dropped on me at the closing table, it would be highly unlikely that the closing would take place that night.

One thing you have to remember, whether this situation is ever presented to you or not, is that in many states, and also under the Federal Rules of Civil Procedure, that audio recordings may very well be admissible into evidence whether you have given permission to have the conversation recorded or not. Someone could have a recorder in their coat pocket, or in their purse, and provided that one of the parties to the recording, 1 of which could be the borrower, gives permission to record the conversation, that tape will come into evidence, at the very least, for impeachment purposes. We could ALL have had our closings recorded without our knowledge, and it could still come back to bite us. Just something to keep in mind. The dumbest thing a borrower could do is to ask permission to record the closing. They can just do it, and if for some reason that they want to come back and use that recording, they're gonna use it against us, title, and the lender, if there's something in it for them to use. This situation is one that could happen at ANY CLOSING, without your knowledge. For me, giving actual permission to do that is another situation, and they're going to pay for it if I have knowledge that someone is recording me. If the borrowers are smart, they'll just stick it in their purse or pocket or jacket and do it without my consent. Ends up the same either way, but a lot cheaper for them if they don't tell me they're doing it.

JJ

Reply by John Schenk on 2/15/10 8:11pm
Msg #322939

BTW, it's Federal Rule of Evidence 1001, et seq. n/m

Reply by John Schenk on 2/15/10 8:27pm
Msg #322940

37 states allow 1 party consent...etc...quick rundown

The 37 states which allow “one party consent” recording of oral communications are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

The District of Columbia also allows people to Record Conversations with the consent of only one party. Nevada has a one party consent statute but there is some question as to how the Law should be interpreted by the courts – it could bSe considered an “all party consent” state.

The 12 states which definitely require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. (In California Law, there is an exception – you can Record an Audio Conversation with the consent of only one party if certain criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.

http://www.a1-hiddencamera.com/Article_AudioRecordingLaws.html

Sorry I didn't cite a better source, but not enough time. Appears to be fairly up-to-date though as the same states and DC came up in other sites I opened.

JJ

Reply by John Schenk on 2/15/10 8:30pm
Msg #322941

AHHH PA requries ALL parties consent...hence...

that's most likely why you were asked if they could record it. Interesting subject and posts. As for those that live in the other 37 states and DC, you better keep in mind that your consent isn't required, and you most likely won't get asked for consent if they want to record you.

JJ

Reply by JanetK_CA on 2/15/10 9:27pm
Msg #322943

Re: I agree, Joan.

I participated in a will being videotaped once, but I was hired by the attorney directly - not the signer - and HE was the one conducting the proceedings. All I did was notarize and I doubt much of me was even in the picture. (I did make sure that nothing in my journal was to be visible in the videotape.)

Reply by John Schenk on 2/15/10 9:54pm
Msg #322946

Re: I agree, Joan.

That would be the normal way to get hired for a will signing, but pretty unusual here that the attorney didn't have a notary in his own office. That normally wouldn't happen here unless the attorney was retired and just did a will for someone. I did one for my Dad a couple months ago that he drafted for a mutual friend, and I did it for free. I'd find it suspect for an attorney that had me do one that has an active practice as most firms have their own notaries in house. I'd always look at that situation real hard before I decided to do that. JMO of course.

JJ

Reply by JanetK_CA on 2/16/10 2:45pm
Msg #323018

Re: I agree, Joan.

The one I did was for a guy who has a solo practice and had been a client of mine for a while. He used to have a notary in his office but that person left and he hadn't found a replacement yet. Also, this signing was in the borrower's home, not his office. There was nothing about it that raised any flags for me.

Reply by Susan Fischer on 2/15/10 11:59pm
Msg #322960

Agree, Joan, documentation is usual, in all sorts of

circumstances. The audio-visual memorialization.

Doesn't bother me at all, in a professional capacity.

Reply by John Schenk on 2/15/10 10:01pm
Msg #322947

Is the borrower recording me? I think this is a good thread

Folks need to be aware that in 37 states, and DC, that your signing can be recorded, legally, without your consent. That should be kept in mind, and chances are that you have had signings that were recorded without your permission, as that's not required in the majority of states.

JJ

Reply by GOLDGIRL/CA on 2/15/10 10:17pm
Msg #322950

Very interesting .....

Thanks, Joan, for your great response. If this had happened to me I would have been so stunned I wouldn't have known what to do and would probably have blubbered something until I came to my senses. I would have known something was wrong with the picture, so it's great to know ahead of time how to handle this situation - and similar ones: Call the hiring agency! Borrowers often throw strange things at us - like wanting to copy (often in another room) the signed loan docs before we leave - also with borrowers so distrustful of lenders, it wouldn't surprise me if we've been secretly recorded ... making it all the more important to be on our professional toes....

Reply by EHarp/MO on 2/16/10 11:53am
Msg #322995

Re: Is the borrower recording me? I think this is a good thread

I think JJ is right. With today’s technology any singing could be streaming live to the internet and viewed from any location in the world. In the case of a wireless device it could be accessible by any vehicle driving by. Some locations may have full time surveillance in place long before the closing. This is something to consider when thinking of modern technology. The idea of permission is mute at best if it has already happened.

Reply by LKT/CA on 2/15/10 10:50pm
Msg #322953

Great thread. Now I have guidance if this situation were to ever come up.

Reply by Susan Fischer on 2/15/10 10:51pm
Msg #322954

Hmmm. A video. Who's to say the video-maker

won't just download the transaction onto YouTube, or his website, or jeeze Lousie, anywhere?

Then again, it's his house, his transaction, his fear, and his option. And, who knows, maybe someone will watch, and enjoy the presentation.

Personally, I wouldn't object if informed. I'd proceed in the professional manner in which I conduct all of my signings.

In the event of Me As Evidence? I stand on my Notarial work, my presentation, my non-legal descriptions, my contact numbers at my fingertips, and my courtesies.

We are in a Digital Age, and more and more of our lives and work are being documented. Consumers have a right to be suspicious. Consumers have relatively low power to exact Accountability, and since I'm both a consumer and a provider of services? I'm all for accountability.

JMHO

Reply by Teresa/FL on 2/15/10 11:09pm
Msg #322955

snowflake/PA: Are you saying the TC and LO were unaware

the borrower was audio taping the closing? I would have made all parties to the transaction aware that this was taking place before the signing commenced.

The situation is similar to how I handle signings when I arrive and am told that someone is signing as an AIF. If I was not advised of this ahead of time and the documents do not reflect this, I make a phone call or send a quick email to determine if the signing can proceed or not.

I personally have no problem being audio (or video) taped, but would want to know ahead of time because it would probably take longer than a standard signing. As far as charging an additional fee, that is something to consider since time is money.

My first reponse above was hurried (I was on my way out the door), but this has certainly provoked a great discussion.

Reply by Susan Fischer on 2/15/10 11:13pm
Msg #322957

Good point, Teresa. n/m

Reply by parkerc/ME on 2/16/10 7:31am
Msg #322969

Re: snowflake/PA: Are you saying the TC and LO were unaware

Agree with previous posts. I personally have no problem with being recorded (please give me notice if it's videotaped in case I have bad hair day!), but on loan closings I am there as a subcontractor to TC/SS and anything out of the ordinary should be immediately communicated to them before proceeding. It's up to them whether signing should proceed in that case.

Reply by Cari on 2/16/10 2:02pm
Msg #323012

probably would've been weird, but I wouldn't have minded... n/m

Reply by DD/OR on 2/16/10 4:06pm
Msg #323041

I thought all the jerks were in Oregon.

Reply by Reverse Mortgage of America - Jessica on 2/16/10 4:54pm
Msg #323050

Re: this is really bizarre!

i guess it would really matter what the state recognizes what will hold up in court. i know in some states, both parties have to consent to being recorded and in others only one party can give consent. sadly, if the borrower declined to turn off the recorder, i would have politely excused myself and referred him to an attorney in his area. the borrower was clearly looking to catch someone and this is a classic example of a sue happy individual.