Posted by parkerc/ME on 12/3/12 1:09pm
Msg #445392

Refusal to respond to oath

Has anyone experienced a flat-out refusal by the borrower to respond in the affirmative when administering an oath? First time in 22 years as a notary that I've encountered that. I administered my usual up-front oath/ack spiel, wife said "I do", BO flatly said he's not going to say "I do" because he doesn't know what the documents are or if they are correct. I take a step back and say, "okay, I will just administer the oath to you each time we come upon a document requiring it." Fortunately, never got that far because the first document, HUD-1, was an absolute no-go for him. He dug in his heals and refused to sign anything unless his attorney was present...even after I advised him several times of the RTC. I packed up both copies and left. So I was wondering, if it had reached the point of having to administer an oath on a document and him refusing, what would you do? I'm thinking I would go ahead with rest of package and just return everything with those documents missing signatures with an explanation attached. Or is this a cause for stopping everything, notifying title (if available), and packing up and leaving. (Since it's a notary issue only for those documents.) This was on a Sat. and I couldn't reach anyone. What has been your experience?

Reply by HSH/WA on 12/3/12 1:27pm
Msg #445393

Re:I wonder if he would have affirmed rather than oath n/m

Reply by VT_Syrup on 12/3/12 2:06pm
Msg #445398

I would certainly contact the hiring entity. The documents that absolutely, positively, must be ACKNOWLEDGED is the deed or mortgage, which is recorded. The various documents for which oaths and affirmations are requested might not be absolutely required; it might be something the other parties decide to live without. So if it were impossible to reach the hiring entity, it would make sense to finish the signing with those documents unsigned, note in the journal the names of the documents for which oaths/affirmations were refused, send it back, and hope for the best.

Reply by Moneyman/TX on 12/3/12 2:23pm
Msg #445399

For future signings (this one was DOA once he saw the HUD) --
If someone refused to reply, you cannot notarize a statement saying that it was "Sworn to...". I would call the hiring party and explain the situation. The hiring party may allow you to attach an ack to the particular docs instead (?) or they may cancel/reschedule the signing.

I wouldn't continue with the signing with everything but those docs without approval from hiring party, if it were me.

Just a tip, for after hours or weekend signings, always require an after hours number from the hiring party (TC or SS). I learned this the hard way as well when I first started.

Reply by GOLDGIRL/CA on 12/3/12 4:09pm
Msg #445401

On a lighter note.... one time after I had administered the oath, the wife readily responded "yes," but her husband just stared stone-faced at me. Trying to get some sort of response out of him, I finally asked what's the deal (in the most professional way possible.) With a straight face he said: "I'm the finance mananger at (a huge auto) dealership, nobody believes a word I say."

I'm thinking he's probably right, but nonetheless I got him to mumble something.

BTW, I used to - but no longer - administer a blanket oath at the get go ... cos some loan pkgs do not have a jurat; but mostly because I save it for the docs that do.

Reply by rolomia on 12/3/12 4:35pm
Msg #445404

Though I've yet to encounter this situation, I'm almost certain that I will, eventually, only because more title companies are making blatant errors on critical docs. BO's aren't stupid. And, I don't want a BO to mistakenly sign their house over to an incompetent lender who doesn't demand accuracy from Title on said documents.

If Title cannot do something as simple as a document review, then, the BO's should cancel. Every single BO that I have ever met with reads over the HUD-1 for accuracy. Most of the time, the amounts were correct. The few times that they weren't, Title called the lender to reschedule another closing appt. with the BO and I was paid a Trip & Print fee. In those instances, I usually received the new signing order.

I wish that the lender would approve sending the docs. to the BO ahead of time so that I don't waste a trip if the docs. aren't correct. These days, the trip/print fee don't fully reimburse my costs. But, I have to take the bad with the good to keep clients.

Reply by CopperheadVA on 12/3/12 8:47pm
Msg #445435

<< I wish that the lender would approve sending the docs. >>

That's what Quicken does, but I am encountering more and more Quicken borrowers who have not reviewed their copy of docs prior to my arrival.

Reply by parkerc/ME on 12/3/12 10:17pm
Msg #445445

I agree about wishing lenders would send docs to BO before signing appointment. When I started packing up both copies of the documents, he 'bout had a fit, wanting to take his copy of the docs to his lawyer. I told him "I'm sorry, but I have been directed to return both sets of documents to the title company if the signing is not completed." When he asked how he was supposed to have his attorney review the docs if he didn't get to keep his copy, I just said that perhaps between him, the LO, and the attorney they might be able to arrange to email a copy, but that would have to be something to be worked out between the 3 of them.

Reply by Moneyman/TX on 12/4/12 6:38am
Msg #445454

From my experience, I think that most BO's do not realize that they have a right to see the HUD prior to seeing it at the signing table and they are not informed of that right by LO, lender, or title. I have had some that do receive a copy prior. Some of them will print out the copy they received and make sure the numbers match on the one I bring. On those appointments, the signing is usually smoother and faster overall.

I always ask the BO on the confirmation call if they have spoken with their LO recently to go over the numbers so there aren't "any surprises" when I arrive. Over the last year or so I've received a lot more "yes" responses to that question than in past years.

Reply by BobtheElder on 12/3/12 5:02pm
Msg #445411

Sounds like he didn't want to do it anyway... problem for the lender to deal with.

Reply by HisHughness on 12/3/12 5:14pm
Msg #445415

I administer an oath at the outset of a closing, just as a witness is administered an oath at the outset of court testimony, and that oath then applies to ALL his testimony, even if it lasts for weeks. I certainly am not going to give an oath for each document.

A borrower objecting to taking the oath because he did not know the contents of the upcoming documents is like a witness refusing to take an oath because he doesn't know the contents of the questions. If I had a borrower who objected on that ground, I would emphatically tell him he had the right not to execute any document with which he disagrees or where he does not know the contents, but if he refuses to take the oath, the closing is adjourned.

I like to be jocular with my clients, and I like for them to be jocular with me. I draw the line at them being ridiculously stupid.

Reply by Belinda/CA on 12/3/12 7:50pm
Msg #445422

Curious. What is the oath and/or affirmation you give? How

does it go?

Reply by HisHughness on 12/3/12 8:00pm
Msg #445423

Pasted inside the cover of my journal

Oath

Do you solemnly swear or affirm, upon pain of perjury, that:

You are ______________________________________________

That the signature you will place on these documents is your customary and usual signature;

That you are executing these documents voluntarily for the purposes and the considerations stated therein; and

That, with respect to any affidavits, the allegations therein are true and correct to the best of your knowledge and belief?

Oath at Deposition

Do you solemnly swear or affirm, upon pain of perjury, that the testimony you are about to give in this matter is true and correct to the best of your knowledge and belief?

Reply by JPH13/MO on 12/3/12 9:12pm
Msg #445439

I put my oath in front of the first Jurat...

and then let them know that as we come across a document that requires that they be sworn in, I will carefully go thru it with them so that they are certain it is "correct to the best of their knowledge and belief" before having them sign it. Have never had a problem doing it this way.

One did ask why I had the wording and read from it, and I explained it was like a cop with a Miranda statement, even though I know the oath by heart, them seeing me read it aloud makes it so that everyone knows I always say exactly the same wording.

Mine is mainly based on the state I am commissioned in that had the strictest oath wording, as the other state I'm commissioned in said wording the same or similar to x was fine. That way I know I always use the same one no matter where I am.

Reply by VT_Syrup on 12/3/12 9:18pm
Msg #445440

Re: Pasted inside the cover of my journal

Hmm, I think I'll pass on that version. Customary and usual signature? Maybe a married woman who customarily uses her husband's surname as her surname need to sign a deed related to a house she bought before she got married, and she signs her maiden name. Maybe it's an esigning, and she types her name. Etc.

"Executing these documents voluntarily for the purposes and considerations stated therein" is the language of an acknowledgement. Acknowledgements are just statements, not sworn statements, aren't they? If someone acknowledgements with no intention of carrying through with the contract, and in fact breeches the contract, that's a tort, not a crime, isn't it?

Reply by HisHughness on 12/3/12 10:27pm
Msg #445446

Re: Pasted inside the cover of my journal

***"Executing these documents voluntarily for the purposes and considerations stated therein***

Reflects that their execution of the document was the result of neither coercion <nor> fraud.

Reply by VT_Syrup on 12/4/12 3:19am
Msg #445451

Re: Pasted inside the cover of my journal

Well, of course they are supposed to say, that is, acknowledge, that they are not under duress. But to the best of my knowledge, there is no requirement that they swear they are not under duress.

As for "for the purposes and considerations stated therein", I don't think that is a statement they are not committing fraud. Instead, it is a statement to explain why they are writing their name on the paper. For example, if there was no notarization, they might say they signed as a witness. Or there were several copies on the table, and they just wrote their name to show which copy belonged to them. But because it is acknowledged before a notary, we know they told the notary they signed for the reasons stated in the document, so if the document says they are a borrower, then they're a borrower. And again, I believe only a statement, not a sworn statement is required for an acknowledgement.

Reply by Belinda/CA on 12/3/12 9:26pm
Msg #445441

I am curious as to the oath and/or aff parker/ME uses. How

do you say it? Are you asking them to swear/aff what they are saying is true and corrrect or that the whole document pkg is true and correct. Just curious as to the wording you use.

Reply by parkerc/ME on 12/3/12 10:08pm
Msg #445444

Thanks for all your responses. Definitely something I never thought I'd encounter...and thankfully it never got far enough to actually hit that brick wall...but it could have if he hadn't issues with the HUD-1 from the get-go. Like someone said here, his attitude was rather hostile from the time I walked in the door. Found out it was a 2nd attempt at a signing...I have no idea what happened between him and the LO on the previous, but I guess I was the sacrificial dumpee for this one. Like Hugh, I give a blanket oath up front. After verifying BO IDs, I say my "I'm not an attorney, etc., etc.," speech, then administer my all-emcompassing spiel: Do you [swear/affirm], under penalty of law:
•That you understand the purpose of the documents contained herein; [at this point I interject "and I will briefly describe the purpose of each document as we go through them"]
•That the information you provide therein is true, to the best of your knowledge and belief; and
•That you execute these documents as your free act and deed for the purposes therein intended.
No oath required for acknowledgement, but threw in some wording to that effect anyway.
I do not intend to be available should they call me for another re-sign with them. Like another poster said, I won't get my full fee for this..only print and travel costs...and from the attitude of the BO I can only imagine a new signing with a SA will come to a screaching halt again at some point...probably at the first jurat. His attorney can deal with him on a next try, not me.

Reply by Belinda/CA on 12/4/12 10:15am
Msg #445466

So, are you having them affirm/swear that they understand

the purpose of the documents (all documents) contained herein? And that they are executing these documents (all documents) as your free act and deed for the purposes therein intended?

Wow, ME requires more than CA. From the CA SOS handbook our basic requirement is: “There is no prescribed wording for the oath, but an acceptable oath would be,”Do you swear or affirm that the statements in this document are true?” When administering the oath, the signer and notary public traditionally each raise their right hand but this is not a legal requirement.”

They are only affirming/swearing to the content of the Jurat document(s), not the whole package. Nothing is mentioned about understanding every doc in the pkg or free will.

Are these requirements in ME? Just trying to educate myself here. Not picking on you.

Reply by parkerc/ME on 12/5/12 5:03pm
Msg #445652

Re: So, are you having them affirm/swear that they understand

No, that wording is not a Maine requirement. Maine is not a stickler for micromanaging (probably not the best term for me to use...no offense intended) notaries beyond the basic requirements for identification of signers, so I just wrote up my own to cover jurats and threw in some words to also refer to acks (the free will part).

Reply by parkerc/ME on 12/5/12 5:13pm
Msg #445653

PS..I preface the oath with...

"There are several documents in this package that require notarization and for which I am required to administer an oath to you. Rather than doing this several times, I am going to do it once up front and it will continue apply to all those documents." It's not an oath for all documents.