Posted by Shannon Davis on 10/1/10 7:17am
Msg #354952

Affidavit Question.

I received an email from the signing company saying: "You closed the ****** signing for us on 09.15.2010, the county has requested an affidavit be signed by only you (the borrowers are not needed), to file the mortgage. Can you please see attached and let me know when you drop this back to title.
Title has sent an example of the form completed, a blank form for you, and a UPS label for the return."

My question is.....can I do this? I thought the purpose to a notary was to acknowledge that a person has signed a form. If the borrower's aren't signing this form, what am I notarizing? It does say "the attached deed or lease" & "affiant further states that he makes this affidavit for the purpose of indicating to the recorder of deed of Lee county that the conveyance by the attached instrument is within and in compliance with the provisions of the IL Plat Act." I did notarize the mortgage itself. Any help would be appreciated!! Thank you.

Reply by Larry/IL on 10/1/10 7:29am
Msg #354954

All of the IL Plat Acts I have seen are both signed by the primary borrower and then notarized. Hope that helps.

Reply by Shannon224 on 10/1/10 7:56am
Msg #354958

Since there isn't a place for the primary borrower to sign and it will be attached to the mortgage - would you notarize it?

Reply by Shannon224 on 10/1/10 7:57am
Msg #354959

And they want me to date it the 15th - the day of the signing.

Reply by Larry/IL on 10/1/10 8:11am
Msg #354963

IMO, In IL I would not. I might suggest you check your state's handbook and see what's allowed and then stick to that.

Reply by Donna McDaniel on 10/1/10 8:16am
Msg #354966

And then maybe call the county recorder's office and ask some questions.

Reply by Linda_H/FL on 10/1/10 8:44am
Msg #354971

Of course you can't do this

The form is very clear that it's to be signed by someone who can swear to the statement(s) above and then notarized. I see it's also for "conveyances" - does that include mortgages? Was this a refi or purchase? If a purchase I would think this is something that needs to be signed by the Seller and notarized.

If it's a refi, and not required for mortgages, I'm not so sure the recorder knew what they were talking about. But you're right - you DON'T sign it - someone else does and you notarize. As to who signs it - that's their call.

JMO

Reply by Shannon224 on 10/1/10 8:59am
Msg #354977

Re: Of course you can't do this

Thanks! I spoke to the county recorder & she said this is attached to a deed. I notarized a mortgage for the refi. I called the signing service and told her I can't notarize it as it does not have any signatures for me to notarize & they want it back dated (which again can not do). She said she can't call her client a liar & that was what the county sent him. She will get more clarification from them and call me back. She said it could be the county error as she has had counties loss several mortgages. This all makes no sense.

Reply by Linda_H/FL on 10/1/10 9:03am
Msg #354979

Well, the form I found had a date at the bottom corner

of 2001 - so I'm sure it's been revised over and over - but the form I looked at contained 9 statement regarding the conveyance of the property, NONE of which I as a notary would know or would willingly sign off on.

This is either up to the property owner or title to sign - aside from the notarization requirement, IMO the notary cannot sign off on these representations.

Again, JMHO and good luck

Reply by Shannon224 on 10/1/10 9:05am
Msg #354980

Re: Well, the form I found had a date at the bottom corner

Thanks again!!! I'll post how this turns out.

Reply by Larry/IL on 10/1/10 9:12am
Msg #354981

Re: Well, the form I found had a date at the bottom corner

Shannon, I usually see an IL Plat Act when there a change in ownership. It may be used when there is a Quit Claim Deed even if the purpose of the QCD was to change or correct the name of an existing owner.

Reply by Larry/IL on 10/1/10 9:15am
Msg #354982

Additionally

I have never seen a Plat act that the Borrower did not sign. There is usually a long list of circumstances that the borrower reads and circle any that may be applicable. They then sign acknowledging.

Reply by C. Rivera Chicago Notary Services on 10/1/10 7:47pm
Msg #355083

Re: Well, the form I found had a date at the bottom corner

an aff is only used when there is a change of ownership. id go back out and have the bo sign it with current date then notarize it. cant back date.

Reply by Donna McDaniel on 10/1/10 11:10am
Msg #355000

Re: Of course you can't do this

"She said she can't call her client a liar & that was what the county sent him"

I would tell this SS that informing the TC that it is illegal to notarize a document is not calling anyone a liar. The TC may appreciate the information you gathered. I guess they are the kind of SS that will do whatever they are told as long as they get paid.

Reply by PAW on 10/1/10 9:24am
Msg #354984

I've done a couple purchases of IL property and remember the "Plat Act Affidavit". IIRC, that affidavit was signed by the CLOSING AGENT at the title company. There is no way that a signing agent would know what conditions exist to exempt the transaction from the Plat Act requirements.

At the top of the affidavit is quote from the Act that requires specific knowledge of the transaction. To wit:

"Recorder of Deeds or Register of Title of any County shall not record deeds or leases which attempt to convey property contrary to the provisions of this act. In case of doubt, the Recorder of Deeds or the Registrar of Title of any County may require the person presenting such deed or lease to give evidence of the legality of a conveyance by an affidavit as to the facts which exempt such conveyance from the provisions of this Act."

The affiant is making a sworn statement "[t]hat the attached deed is not in violation of Paragraph 1, Chapter 109 of the Illinois Revised Statutes for one of the following indicated reasons:"

Reply by Larry/IL on 10/1/10 11:15am
Msg #355002

Every Plat Act Aff. I have seen, (and there have been many), always have a place for the borrower to sign and a place for notarization. Perhaps the section was cut off when scanned or printed.

Reply by Bob_Chicago on 10/1/10 11:42am
Msg #355005

Actually not as bad as it sounds. If the property is

in a platted sub-division it is exempt from the plat act prohibitions
The act is designed to discourage conveyance of property described by
"metes and bounds" and to encourage recording plats of subdivision.
A title company representative can make that determination, although aff is usually
signed by owner.
I do not believe that form is not even necessary if legal is something like " lot 2 in block 3 in Bob's subdivision of anytown ...."
Certainly not needed if there is only a mortgage with no coveyance.
Agree that the notary should NOT be signing the form.
Not legal advise yada yada

Reply by PAW on 10/1/10 2:30pm
Msg #355034

Maybe it was the borrowers who signed the affidavit. I'm not sure and I'm not going to look back through my records to find out. The point is, as everyone agrees, it's not something the NSA should sign. And if there's no signature line for someone other than the NSA, then what would the NSA be notarizing?

Reply by Cari on 10/1/10 7:58pm
Msg #355084

these affidavits are used in all counties in IL....

some are as outdated as $hit, but they basically all contain the same premise (and some are a bit wordy as mentioned above).

When a property's ownership is being changed in Cook County, for example, the Affidavit is called the Grantor/Grantee Affidavit, and yes, the Grantor has to sign it, then its notarized and signed signed by the notary, and TC or lender has to record it along with the QCD (plus an additional new notarial form).

If they pay you to go back out to get the affidavit signed, then I'd do it. Its their fault for not providing you with the correct form, and they should pay you an extra trip fee to get this completed. IMHO.

Reply by Barb25 on 10/1/10 12:50pm
Msg #355019

Shannon, I am sure that all the responses concerning the purpose of the affidavit are valid. But the foremost is your question in addition to the backdating is ".....can I do this? I thought the purpose to a notary was to acknowledge that a person has signed a form. If the borrower's aren't signing this form, what am I notarizing?"

Lender, TC, SS... one or all of trying to cover their butt. Aside from the backdating, what are you notarizing? Nothing. Nobody wants to know, just get it done. No concern that you are being asked to commit a criminal violation. I've "been there" recently. Probably cost me future business. Amazing.

Reply by Shannon224 on 10/1/10 1:33pm
Msg #355029

Thanks everyone.....

Exactly Barb25, if the borrowers aren't signing the form, then what am I notarizing? I haven't heard back from the ss or anyone else. This was my first signing with this ss and it will also probably cost me any future business with them. But I rather do things correctly and legally.

Reply by MikeC/NY on 10/1/10 5:35pm
Msg #355069

Here's your problem...

"I received an email from the signing company saying: "You closed the ****** signing for us on 09.15.2010, the county has requested an affidavit be signed by only you (the borrowers are not needed), to file the mortgage. "

You did not close that loan - your job was to facilitate the signing of the documents. Someone back at title is the actual closer; that's who should be signing the affidavit, not you. Determining whether the transaction was in compliance with the Plat Act is way above your pay grade...

Maybe you could gently point out to the SS that "closing" a transaction is not your job function, and that the folks at the TC should get their heads out of their butts... but do it gently...

Reply by LKT/CA on 10/1/10 8:43pm
Msg #355092

Re: Here's your problem...

<<<You did not close that loan - your job was to facilitate the signing of the documents. Someone back at title is the actual closer; that's who should be signing the affidavit, not you. Determining whether the transaction was in compliance with the Plat Act is way above your pay grade...>>>

Not sure why signing agents use the phrase "I have a closing...." They have a "loan signing", not a closing. Maybe the next time a SA posts that they have a "closing", they should be politely reminded they don't "close" anything, they have a signing.....until SAs stop using that phrase and use the correct terminology.

Reply by jnew on 10/2/10 12:30am
Msg #355112

Re: Here's your problem...

I don't mean to push this off in a different direction. This appears to be a title problem, not a closing problem. The legal description is taken from the title commitment and if it does not conform to the platting statute, the title company would provide an affidavit of correction in our state. These affidavits are only acceptable if signed by the grantor of the mortgage, ie. borrower and both the grantor and grantee of the deed. They would be a separate document but normally attach a copy of the original document (deed or mortgage) for reference. The State does not allow a legal description to be changed by affidavit for a title conveyance. It would require a curative deed to be recorded. The date the affidavit or curative deed is actually signed is appropriate and there would be no need for dating back to the date of purchase or mortgage. The mortgage retains its priority as of the date of recording, even if it is in error. My take on this is that the closing agent does not have a title background and tried to take it upon him/her self to fix the problem without consulting title. My first reaction as a notary is don't sign anything that may lead to you having to dress up and raise your right hand later.

Reply by Barb25 on 10/2/10 7:19am
Msg #355122

Re: Here's your problem...

And that would be notarizing your own signature and/or backdating. It is not our job or right to decide the legalities of the document. Just acknowledge signatures and give oaths of truths by signer not lender.

Probably somebody going to beat me up about this but.....

Reply by Shannon224 on 10/3/10 7:19am
Msg #355205

Re: Here's your problem...

Found out more info - this form was required by the county to be record with a quit claim deed adding the wife to title and can not record the quit claim without it. Title/SS did not include this form in the signing package. Therefore, I completed the signing correctly.

I told the SS that I can not notarize this form as there is nothing to notarize and that it is a Jurat stating someone swore to me - and there is no one to swear. I also told her I was not going to back date anything.

End result.......she said she did some checking (with her supervisor) to see if I was correct that I could not sign the form. She said I was right and they paid me a trip fee to go have the borrower's sign the form.

Thank you all for your help! I truly appreciate it!

Reply by Barb25 on 10/3/10 9:21am
Msg #355211

That's great Shannon

At least they listened and followed up and rightfully compensated you. In my case, I think the opinion that is was a PIA and it was my problem to resolve.... So good for you.