Posted by Hugh Nations Signing Agents of Austin on 9/5/10 11:45am
Msg #351617

Questions for escrow officers, or whoever else...

...has the experience or background to give a knowledgable answer.

I have been a loan officer, but never a document processor or escrow officer, so I have limited grasp of how those positions function, or how a loan closing package is put together. My expertise in that area begins and essentially ends with the taking of a reverse mortgage app, and signing loans.

I had a package this week with two lender documents that included the following notarial certification, and one last week with an identical certification:

State of ____________

County of ______________

BEFORE ME, the undersigned authority, on this day personally appeared ________________ .

GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ______ day of ____________, ________.

________________________________
NOTARY PUBLIC IN AND FOR

Questions:

1. How do such deficient certifications make it into a document package?

2. Whose job is it to determine that such things do NOT happen?

3. Once they have been identified by someone, as, for example, a signing agent, whose job is it to correct them for future packaages, and how does the responsible party get the message that something needs to be corrected?

I also have had a lender doc that keeps cropping up with this as the notarial certification:

STATE OF _______________

COUNTY OF _____________


____________________________
NOTARY PUBLIC IN AND FOR THE STATE OF

This has me really befuddled, and especially in today's climate, where so much emphasis is placed on error-free performance by signing agents, yet glaring errors such as this not only get made by lenders, but repeated in packet after packet.

I initially judged that it was the responsibility of the title company to get an error-free package to the borrower. However, that apparently is not the case, at least in practice. My impression is that title companies don't want to make waves with lenders about the quality of the lender docs, for fear of losing a client.

Can someone please shed some light on this area for me? Thanks.

Reply by Stoli on 9/5/10 12:36pm
Msg #351618

The notary certificates in the document set, as such, are intellectual property of the software producer, and are purchased as a software program containing the standard document load and are the sole responsibility of the lender.

The notary certificates contained in the loan packages are standard, generic, multi-use, certificates and are distributed nationwide without consideration for the end state where the documents will be signed. The responsibility to correctly identify and submit correct, state-specific certificates with the loan package is the purview of the notary public witnessing the document.

Consider the document templates contained in MS-Office program; just a thought, not a fact, JMHO.

Reply by Maureen_nh on 9/5/10 12:50pm
Msg #351620

Re:Whoops One rational one..N/M n/m

Reply by Maureen_nh on 9/5/10 12:47pm
Msg #351619

To add to your question--why can't they put state compliant jurats and acks on their notatial certificates and WHY are the multiple docs that some seem to need notarized, not uniform and WHY do they have us try to notarize docs with no borrowers signature and nothing to notarize?

I hope you get some answers -- I don't think you are going to get rational ones.

Me thinks, don't know, don't care and just put that validating stamp on there. They have no idea what the fuction of a notary is.

Reply by Cari on 9/5/10 12:52pm
Msg #351621

IL notary laws basically offer the bare bones in not

certs. And I usually use whatever certs the TC has supplied in the loan packages, unless there is something totally ridiculous or not in compliance with my state's notary certs requirements.

I have been a real estate and general litigation paralegal for 22 years and have seen some of the lax and most controversial notarial certs out there, and I've only "corrected" a handful that were truly outrageous if not ridiculous.

I believe its ultimately the responsibility of the nsa/np to make sure that the notarial certs in these loan packages are in compliance and in accordance to their own state notarial requirements.

I also believe its the TC's who must recognize each state's notarial requirements so as to provide the correct cert, though sadly, not always the case.

I've also never processed loan docs as a loan processor or acted as a lender's or TC escrow agent, but I do believe that the notarial certs are the only docs in a loan package that we need to worry about, legally.

Reply by Hugh Nations Signing Agents of Austin on 9/5/10 1:12pm
Msg #351623

I got that, but...

***I believe its ultimately the responsibility of the nsa/np to make sure that the notarial certs in these loan packages are in compliance and in accordance to their own state notarial requirements.***

I understand that it is ultimately my responsibility to notarize only certificates that comply with the law.

What I do NOT understand is why any lender would provide a certificate that, to my knowledge, is not compliant in any of the 50 states of the union nor any of the territories thereof. That absolutely guarantees that the notary public is going to have to contact someone to authorize a compliant jurat or acknowledgment, since he/she cannot choose which to use.

Echoing Maureen, I also do not understand why lenders do not look at their packages and notice that any given package will have seven different forms for a jurat and nine for an acknowledgment. I don't know of any other business where such an utter lack of contractual uniformity prevails -- especially one where all the documents are either initially or eventually vetted by one processor.

Surely it must have occurred to someone somewhere along the way that the more complex or the more varied the certifications a signing agent has to deal with, the greater the possibility of error.

Give me just one day at Ruler of the World, and I'd have reasonably-sized uniform loan packets, Israeli-Arab peace, an end to genocide anywhere, all our troops back home, and rap/hip-hop "music" wiped from the face of the earth.

Reply by Tess on 9/5/10 5:06pm
Msg #351639

Reason!



They just do not care to even think about it!!!

It would not take much to either have 1. software code written to add the right certs per state or 2. have a file per state with the right certs in them to pull from.

Reply by Tess on 9/5/10 5:27pm
Msg #351643

Question



Is there a site that lists by State, the Notarial wording per state that anyone could copy from when needed? I would think, if this would be offered and advertised to them, it may catch their attention.

Reply by MikeC/NY on 9/5/10 10:26pm
Msg #351675

Re: Reason!

"It would not take much to either have 1. software code written to add the right certs per state or 2. have a file per state with the right certs in them to pull from."

As a former software developer, I can tell you that while the changes seem simple (and they are, in theory), they may actually require a major effort depending on how the system is designed. i think it's fair to say that if they could fix it quickly, they would have done so already.
So when you say "it would not take much", I would have to respond that it could definitely take a heck of a lot more than "much".

The four words a software developer does not ever want to hear are "Oh, by the way..."

Reply by Tess on 9/5/10 10:51pm
Msg #351677

Re: Reason!

All that would be needed is a drop down State box in their software with the code to refer all notary blocks to be either a jurat or an acknowledgement of that state, from an attached database of the state certs. Complicated code yes, but if asked of the developers, possible, and for less money then they spend for some of their shindigs!!

Reply by PAW on 9/6/10 7:16am
Msg #351684

Re: Reason!

I submit that it just isn't that easy to make such a change. The bureaucratic overhead is one major hurdle the software developer faces. Another issue would be the need to monitor any and all changes to the all the states wording changes. This places a hard to justify expense to the software that is used by lenders and title companies for document generation.

Every jurat and acknowledgment in the package must be drafted by an attorney (at least signed off by the attorney). Someone else coming down the pike at a later date would need to be an attorney to change the content of the certificate and then the entire package would need to be sent through and approved by all the legal hurdles.

Changing the software itself is probably the least amount of effort and expense. The administrative and bureaucratic overhead would be the most time and cost consuming effort.

Assuming that the LOS passes through all the development, packaging and distribution hurdles, each lender/title company that uses that LOS would need to have the software checked and approved for integration into their business models. This would also mean additional expense to ensure compliance and legal acceptance by the underwriters (both lender and title).

So, imo, having been on all three sides of the table (developer, lender and title) it isn't all that easy to get the software changed. Though, as a closer and NSA, I wish it would be 'smarter'.

Reply by Tess on 9/6/10 1:20pm
Msg #351703

Re: Reason!

"The bureaucratic overhead is one major hurdle the software developer faces. Another issue would be the need to monitor any and all changes to the all the states wording changes. "

So true!!!

Reply by MikeC/NY on 9/6/10 7:55pm
Msg #351719

Re: Reason!

"All that would be needed is a drop down State box in their software with the code to refer all notary blocks to be either a jurat or an acknowledgement of that state, from an attached database of the state certs."

If I got a dollar every time someone said "All that would be needed is...", I would have retired from my programming job a very rich man...

As a concept, what you are suggesting is very simple - it took me about 2 minutes to work out in my head how to do this. In reality, changes like that can be a real bear to implement. In addition to the stuff PAW pointed out, there are a host of technical issues that would have to be addressed. It would be wonderful if you could just plop a drop-down box wherever you wanted one, but that's not the way it works in real life...

As others have said, the lenders really don't care about this stuff. It's up to the notary to provide the proper certificate for whatever state they are in. If it's not clear what form is required (jurat vs acknowledgment), a phone call is in order. Otherwise, just slap on a loose certificate and move on...

Reply by Linda_H/FL on 9/6/10 7:50am
Msg #351687

Even easier....and cheaper!

Give the notary/remote closer the latitude to make the appropriate changes to the cert so they're state compliant - no need to provide 50 different acks and jurats or choose or keep them on file....contract with knowledgeable notaries and the inaccurate cert issue is moot.

What a concept.

Reply by dickb/wi on 9/7/10 1:30pm
Msg #351764

i do change them whether it's liked or not..never had a prob n/m

Reply by dickb/wi on 9/7/10 1:28pm
Msg #351763

in my simple way of thinking all the have to do is....

at the ebd of the doc under the signers signatures that need to be notarized is add a line: attach an acknowledgement----or----attach a jurat.......then each block would be state compliant in the state where the action takes place.....each state has to accept the notarizations from the state in which the action took place even if it is not compliant in the state where recording will take place...jm .02

Reply by Tess on 9/8/10 11:59am
Msg #351876

You got my vote on the easiest way to fix the problem! Just

wish they would do something!! : )

Reply by Marian_in_CA on 9/5/10 6:32pm
Msg #351648

Re: I got that, but...

"What I do NOT understand is why any lender would provide a certificate that, to my knowledge, is not compliant in any of the 50 states of the union nor any of the territories thereof. That absolutely guarantees that the notary public is going to have to contact someone to authorize a compliant jurat or acknowledgment, since he/she cannot choose which to use."

Lenders don't care what wording is used... nor do they particularly care to keep abreast of specific notary laws. They just want the job done, and they know that ther are a lot of notaries who will bend the rules. It's not right... but they know it will happen because there are a lot of NSAs out there who have an employee mentality and fear getting "fired" by the service.

Why does the notary have to contact anyone to be sure that compliant wording be used? The notarial certificate is the authority of the notary.

As is often the case for us in CA, I see DOTs with non-compliant ack wording all the time. It's clearly an acknowledgment... so I don't need to contact anyone to get permission to use different wording. I have state mandate to use specific wording... and nothing the TC or Escrow says is going to change that.

HOWEVER... i do agree with you about the ridiculousness of it all. If they're compiling loan documents that comply with state laws on one level... they should know about proper notarial certificate wording, too. Well... they don't because they don't care. They just want it signed and sealed. They don't care about our commissions.

Besides... and this really only applies in CA... but if I do call and indicate that I can't use their jurat wording, for example... and they say, "You MUST use it as is, no exceptions!"

I immediately point them to Gov't Code 8202 (in the case of a jurat) which indicates that any jurat taken within the state shall follow a specific form.

Then, I point them to Gov't Code 8225 which states that anyone who knowingly asks or coerces a CA notary to do something illegal is guilty of a crime.

I then often say, "I've just read to you California law regarding the wording of a jurat. You are now aware that what you previously asked me to do is illegal. Are you still going to tell me there are no exceptions?"

Amazingly enough... they manage to find an exception.

Reply by Tess on 9/5/10 6:43pm
Msg #351650

Re: Uh, but what do you do with the ones that have no

wording, but say to notarize? Do you just pick which to put on, call them, or just stamp without?

Reply by Marian_in_CA on 9/5/10 6:57pm
Msg #351657

Re: Uh, but what do you do with the ones that have no

Well, that's different... clearly, if there is no wording at all and it's not apparent what should be used, then of course you call and ask.

When I do that, I simply explain the difference between the two and tell them that they are required to choose the type of notarization. Type... not the wording.

Reply by Tess on 9/5/10 7:23pm
Msg #351668

Re: Uh, but what do you do with the ones that have no

Marian,

You have better luck with it, then me. Whenever I have to call and ask, it’s like pulling teeth from a bear, not FUN! They do not like to be asked that question and are always hesitant to answer.

Reply by Marian_in_CA on 9/5/10 8:12pm
Msg #351671

Re: Uh, but what do you do with the ones that have no

Hee hee. In those cases, that's when I get pretty straightforward. I tell them, "You need to choose, and by not doing so you're holding up the processing of this loan, not me."

The reason they don't choose is because they don't understand the difference between the two, nor do they even care. They just want our "stamp" on the paper.

Reply by Hugh Nations Signing Agents of Austin on 9/5/10 7:06pm
Msg #351658

Re: I got that, but...

***Why does the notary have to contact anyone to be sure that compliant wording be used? The notarial certificate is the authority of the notary.***

Well, Marian, perhaps because in both of the instances which I cited -- verbatim and in full -- there was NO notarial certification whatsoever. The type of certification expected was not evident.

I don't ask the borrower what he/she wants to use, since the instigator for the document, and the party who hired me, is either a lender or a title company, either directly or through an SS. I ask the title company what type of certification IT wants to use.

Reply by Stoli on 9/5/10 7:22pm
Msg #351667

The answer, Hugh, at least in California, is clear:

If the notary certificate does not require an oath, the resulting document is an acknowledgment--simple.

Reply by ReneeK_MI on 9/6/10 5:41am
Msg #351682

couple of key points to consider

First - perhaps most importantly - remember that the role of the NSA is incidental; things that might seem huge in our world aren't (obviously) as sizable to others, we're not key players. The lender lays the responsibility of state-specific/correct & recordable notarization formats on the settlement agent (read the closing instruction 'contract').

The settlement agents & the lenders have their processes down, and the goal is to get things done w/as little drama as possible. "Will this fly?" is about all they ask or care about. If the notarial cert isn't going to fly, it's the settlement agents' duty to fix it - they know that, and they don't make an issue of it, they just make it work. In their world, it is a non-problem. When WE make it a problem, we simply become a headache that nobody wants.

With that in mind - for the lender to revise the notarial certs on documents he's already delegated responsibility to someone else for, he'd have to spend money (legal depts & tech depts). If this non-problem isn't causing at least an equal loss, why do it? Depending on the size of the lender, what seems like a simple change is nothing BUT. The biggest 'issue/non-issue' is the mtg/dot - the lender generates the document, but it is the settlement agent's contractual responsibility to ensure - and insure - that it is correctly vested, executed & recorded.

I don't think there's any fear-factor involved, Hugh - I just don't think it's an issue, outside of this 'incidental' world of NSA's. I don't think there's any motivation to spend a lot of money to re-vamp a system that isn't (or wasn't) broken (x 50).

How do these certs get drafted as incorrect from the beginning? Attorneys. Is it true that 'they' collectively don't care? Pretty much - again, why should they? The party providing the document isn't responsible for that portion, and the party responsible isn't drafting it - but simply taping wings on it to make it fly.

The only time I ever saw a document get revised was when large amounts of settlements were paid out, or a law changed (which would ultimately be the same motivation). The last revision I remember seeing was the REMOVAL of all notarial certs from the entire pkg (of the last lender I worked for), except for the mtg. This was to streamline things (i.e. save time/money). Not really something we'd want to encourage across the industry.

So - I guess what I'm trying to illustrate here is that we, the NSA's, might be better off trying to find a place on the team and present them with an added value, rather than wedging ourselves off entirely. Again - it's the headaches we present that give TC's the desire to make one phone call to a SS instead.

Reply by PAW on 9/6/10 7:25am
Msg #351685

It's not that they don't care

I don't think it's a "don't care" attitude by the people we deal with, it's more along the ignorance of what is correct. They simply don't know. They do know they, themselves, can't change the wording, and quite often they don't know it should be changed. Thus, "not my job" conveniently makes our lives a bit more difficult.