Posted by NVLSlady/VA on 8/29/13 1:03pm
Msg #482487

Way Too Much Time on

My Hands!!

But, at least I can try to get "edumacated" during the lull. Think I'll join the students next week . . . .

I searched proof of poa (following jba/fl's direction -msg 482483) and found a most interesting thread started by roadie/md. She had the same initial "take" as I had. I can't imagine accepting someone's word that his/her poa is valid (still in force). To me, that is tantamount to taking a 3rd party's word (like the LO) of borrower's ID.

IMO, it is not acting in "good faith" to notarize simply because Title approved and validated my POA. True, it's not my job and I have no issue leaving that up to TC. However, due diligence requires that I see the copy for myself. To say that TC "knows and has approved beforehand" appears shortsighted to my astigmatic pupils.

I just had an issue a few weeks ago where the signing had to be abandoned because of marital prop rights and TC had no clue that poa was needed (nb spouse was abroad). POA was obtained and I was back within the week. I was the conduit in that case, and dutifully sent the orig to TC; but you can believe I would have expected to see a copy even if signer had sent in the orig himself.

We are acting as agents (representatives), but I think we have to act on our own behalf first to protect the rights of the public and perform "extreme care."

I need more direction from experienced VA notaries!! I only got this from our Handbook (Under Civil Liability, P 15):

<<"Notaries must keep in mind that they are acting as official witnesses to the identity AND ACTIONS of the person who appears before them. The public is entitled to assume that the notary has acted in good faith and according to law.">>

Doesn't that mean if someone is attempting to defraud another, we have to try to prevent?
Letting someone claim capacity as atty in fact does something to my "extreme care" radar mechanism; even more so than in healthcare capacity situations (at least the incapacitated individual may be actually present - on some level).

Also VA notaries have added powers to do Verification of Fact.

Further:
The handbook verbiage below is not directly related, but when I read, I realized how much interpretation can go in to some of our actions . . .

<<"A nonattorney notary shall NOT assist another person in drafting, completing, selecting, or UNDERSTANDING a document or transaction requiring a notarial act. . . . " [Now for the other side]:
"This section does not preclude a notary who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field or prevent a notary from adding a notarial certificate or electronic notarial certificate to a paper or electronic document at the direction of a principal or lawful authority.">>

Of course, there is NO ambiguity in the following: "A notary may decline to notarize a document."

Reply by NVLSlady/VA on 8/29/13 1:06pm
Msg #482488

sorry . . . Msg #396193 for reference n/m

Reply by Lee/AR on 8/29/13 1:26pm
Msg #482494

Basically, reading it and determining IF said AIF has the authority to do 'thus & so' could be construed as UPL. Theoretically, whoever is accepting the POA signing has determined that question already.

However, I do think there is one state (maybe more?) that does require the Notary to 'see' the POA.
The proof of POA is on the AIF's back--not yours.

Reply by NVLSlady/VA on 8/29/13 1:37pm
Msg #482496

If POA is signed, dated, notarized

that's ALL the proof I need. Definitely not going to "read"

Reply by NVLSlady/VA on 8/29/13 1:39pm
Msg #482497

Re: If POA is signed, dated, notarized

I really don't care if it's been faxed 10 times, folded into a paper airplane - as long as I KNOW it exists.

Reply by JeffC/CA on 8/29/13 2:48pm
Msg #482508

I'm curious. How would you know if a power of attorney is still in force, even if you saw the original? Usually POA's say that they can be revoked or modified at any time. It may be recorded, but far away from your county. A new one replacing the old one may be recorded or not. Then, some of the powers of attorney I've seen are complex with a lot of conditions and exclusions, etc. Do you read them in their entirety and interpret them? I don't think it is the notary's job to do that. I will let the parties whom are named in or affected by the documents take the appropriate steps to make sure the documents are legally executed. JMHO as they say.

Reply by NVLSlady/VA on 8/29/13 5:06pm
Msg #482525

Revoked POA

Right, Jeff. No way to know if revoked/terminated prior to expiration. I for one wouldn't go to Land Records to find out, either.

Do you think I'd be doing this if we were required to "read in their entirety and interpret"?
Attorneys, we are Not.

I agree that deciding where the due diligence ends is the dilemma. All I am saying is I need to know (not on someone else's word) that one does indeed exist *at the time I notarize* the document in question (couldn't sleep if I deeded grandma's house to the evil step-monster).

Maybe 'cause I don't have that level of confidence; I would like to be able to say to the judge, "Yes, ma'am I did have some visible proof that a poa existed at one time or other. What happened after that, I cannot tell you." As opposed to saying, I'm just the notary! It's not MY responsibility to see that the parties followed the law! Besides the title co. said all was good."

I don't know Much, but You're not just going to walk up to me and say, "Hi, Ms. Notary lady. I will be signing as attorney in fact today for my wife (oops, partner). I don't have a copy; but don't worry, my loan officer has one."

Email is only a click away. I am pleased to view electronically. Don't need a hard copy necessarily.

Reply by Linda_H/FL on 8/29/13 5:22pm
Msg #482528

For loan signings being done with POA

that detail of validity has already been taken care of for you by title and/or lender - they've reviewed it, made sure it's current and in effect, and made sure it does not prohibit the AIF from signing off on the transaction at hand. As to whether one exists..they've told you it does, and if your state law does not require you to see it, then you don't need to see it.

We're not required to see the POA here in FL - in loan signings I'm confident that title has done their job and confirmed that this POA is good for this loan - I have to be, because I don't have the legal wherewithal (well, yes I do but it's beyond my scope as a notary) to determine if this POA is good or not.

When presented with a POA situation in GNW, then I have the opportunity to not be available for the job. I had a lady who called me - she had a hand-written quit claim deed that her ex-husband was going to be signing and she wanted me to notarize it - I referred her to an attorney.

JMO

Reply by Linda_H/FL on 8/29/13 5:24pm
Msg #482529

To clarify

This lady has a hand-written QC deed transferring property her her ex-husband to her via POA - she was going to sign it as AIF...

Reply by NVLSlady/VA on 8/29/13 5:27pm
Msg #482531

Re: For loan signings being done with POA

Linda, what I'm earnestly trying to ascertain here is WHAT state law determines, regulates, etc. for a notary "signing agent." Means nothing to them.

Reply by JanetK_CA on 8/29/13 6:11pm
Msg #482536

Re: For loan signings being done with POA

I'm going to speak in generalities because I know next to nothing about VA law... but presumably, the person who claims to have the POA will be signing both names, as AIF for the person who they claim designated them as their agent. They aren't forging that other person's signature because they have to sign their own name there, as well, and include the capacity, i.e. that they're signing for the principal.

As a signing agent, if presented with someone who intends to sign as AIF for someone else, using their POA, the docs should reflect that they sign with both names (and we should confirm the format they want used). If I see that verbiage on a document, I just want to make sure I ID the person who "personally appeared", and complete the rest of my job. That's all I need to worry about relative to the POA, in that situation. As Linda said, that shows that everyone is aware of it and that it has been pre-approved in advance. The title co is insuring the title, so they have a great deal of liability at stake, to say nothing of the lender who wants to be sure the payments will be made (or that they'll be able to sell the loan).

If there is no indication that a POA is to be involved or that it has been pre-approved, then I would ask them if the lender was aware that that was what they intended to do. (I've actually had people tell me that they didn't realize that would be an issue...) If there was any doubt, then I'd call the client ASAP. I would not proceed with a POA signing without approval from my client.

With GNW, again, I believe that it's my job to ID the person who personally appears before me and to make sure that they're signing as AIF. Once notarized, that document will be used by the signer for some purpose which presumably means it gets provided to a third party. It should be perfectly clear that the document was signed by the principal's Attorney-In-Fact and not by the principal. It's then up to them whether or not they will accept it that way.

I agree with whomever said that it is UPL for us to need proof that the person does have the POA. We're just notarizing their signature. Period.

Reply by NVLSlady/VA on 8/29/13 6:49pm
Msg #482547

Re: For loan signings being done with POA

I appreciate the insights all of you long timers have offered me into this. I don't enjoy over-analyzing to be argumentative, only to be properly enlightened and informed. That said . . .

I'd be just as satisfied with something in writing from title to this effect:

Mr. Aif has been confirmed by such and such at XYZ Title, to be A person acknowledging as principal by an attorney in fact, wherein he executed a POA by proper authority in behalf of the principal named for the purposes therein stated; And in accordance with the laws of the VA Commonwealth, the underlying documents signed in the presence of the notary shall be upheld and confirmed by XYZ Title and shall not be invalidated if the writing mentioned (POA) is not properly notarized Or is not in proper form for recordation.

Now, as for the somewhat 'unofficial' wording, don't judge me too harshly (after all, did all see what our handbook said about "drafting" documents related to our industry?)

In this case, as long as I take precaution to cover myself, they can KEEP the poa - only I'm not taking someone's word that all is OK when someone whose name is on the documents is not in my presence. When it comes to chain of title issues later down the road, no one can blame the notary; like we know, that's what those agonizing (I mean, scrutinizing) searches are for since title insurance is Big Business.

However, without a good record of the transaction before her a notary puts herself on the chopping block, Imo. For instance, If I happened to catch that the year on the POA was signed IN WITNESS WHEREOF this 29 day of August 2011, Or if the witness signature was missing, would I ignore or get ok from TC (the latter, obviously)?. That didn't take much and there was no "reading" of anything or UPL, just pointing out a booboo that may make the TC's life easier down the road.
______________________


Now, for the *Official* wording taken from:

§ 55-106.2. Presumption that writings admitted to record are in proper form.

A writing that is not properly notarized in accordance with the laws of the Commonwealth shall not invalidate the underlying document, however, any such writing shall not be in proper form for recordation. All writings admitted to record shall be presumed to be in proper form for recording after having been recorded, and conclusively presumed to be in proper form for recording after having been recorded for a period of three years, except in cases of fraud.

[Code of Virginia, Legislative Information System]

Reply by jba/fl on 8/29/13 10:40pm
Msg #482589

Re: For loan signings being done with POA

You are not going to get it. I never have in 25 years and I doubt you will ever in this line.

POA's as you think of them, are mostly general POA's. In the lending industry, they are very specific. If I were to send a general POA to my lender, they would send me a specific form worded for just that piece of property that is our business, nothing else. It would state the legal description of the property as well, and they would be the ones to send that to me so that all would be tight and firm before we ever get to the loan transaction paperwork. The TC would have already have shown the lender, received their approval and then it would be sent to me for signatures, etc.

By the time you come to my home to execute the loan docs, the issue has been resolved to everyone's satisfaction, and you would have no need to be involved other than checking for that particular lender/TC wording for the signing of docs.

Now, if you came to my home and I told you I have a POA for my husband (that I don't have) and would be signing for him, the first thing you should do it determine that it has already been approved by TC/lender. You would ask me, since they had not already told you. If not, the signing is adjourned immediately so that a POA can be obtained. You still have no need to see anything, which of course, is not there anyway.

The only time you would see a POA is if, in the interests of expediency, I faxed or emailed my POA for approval on the condition that I return the original with the docs, which you will be instructed to pick it up from me and then return it with the docs. In that case you might be returning the next day or even later in the day depending on speed of all parties.

Reply by NVLSlady/VA on 8/29/13 11:10pm
Msg #482591

Re: For loan signings being done with POA

<<" I never have in 25 years and I doubt you will ever in this line.">>

Well, when you put it like that, I guess I shouldn't expect to see (no "proof is the the package").

Perhaps if I had had the docs in enough time to catch this "surprise" I wouldn't have been alarmed or thought twice (will be second-guessing myself until I get my 25 yrs in - if I can stand it that long).

I could have confirmed with SS ahead of time and not been as concerned about it at the table. As it was, with this particular poa I didn't get docs until we met; and having it follow behind other closings with POAs where I *did* see and send with package - well, you can understand my consternation.

I think there's something to be said for the comfort level if docs are not thrown at you an hour before the appt or not at all, in some cases. This "thinking on one's toes" is overrated

Reply by jba/fl on 8/29/13 11:18pm
Msg #482598

Re: For loan signings being done with POA

You will get used to it. It is part of the learning curve. Next time you won't think twice about it since you gave it a vigorous examination and it will solidify in your mind.

Reply by SharonMN on 8/30/13 12:28pm
Msg #482663

Re: For loan signings being done with POA

Anytime you are acting as a notary (or a signing agent), you are not determining or certifying whether somebody has authority to sign a document, just that they did so.

Joe Smith signs as President of SuperCompany. ID Joe Smith. No need to call SuperCompany Corporate Secretary and ask for proof that he is the current President. (If the document recipient wants more information about the relationship between the signer and the other parties, believe me, they will ask the signer or the other party.)

Joe Smith signs a court filing as attorney for Bob Jones. ID Joe Smith. No need to ask to see the retainer agreement for proof that Bob hired Joe as his attorney.

Joe Smith signs as AIF for his brother Tim Smith. ID Joe Smith. No need to review POA.

Reply by NVLSlady/VA on 8/30/13 10:30pm
Msg #482739

Re: For loan signings being done with POA

<<"Joe Smith signs a court filing as attorney for Bob Jones. ID Joe Smith. No need to ask to see the retainer agreement for proof that Bob hired Joe as his attorney.">>

Good Example (one I would have missed for sure on a regular week). I get it.

'Though my brain will have to make some room for the idea of "not certifying whether somebody has authority to sign." My gut thinks there is a *certain* degree of such validation (obviously, not so in the case of the 1st illustration)

But anyway, thanks for sharing. I'll no doubt come 'round soon enough.

Reply by Linda_H/FL on 8/29/13 6:14pm
Msg #482537

Okay...maybe I'm tired...but

I have no idea what you just said.

There ARE no laws governing "signing agents" for the most part - there IS no state regulation...except for those few notary manuals that do touch on a notary acting as a signing agent (don't recall exactly which ones off hand).

Our Notary manual clearly states - we do not have to see the POA - just take the signer's word for it. That is for notarizations.

When you get to the signing agent portion of it...you're not talking notary law any more - you're talking probate law, estate law, individual POA laws AND Standards of Title for the state where the property is located - all of which are the concern of title/escrow/lender - if they have seen the POA and approved it (knowing they'll need, or already have, the original for recording) - if notary law says you don't need to see it you have to go on the word of your hiring party that all is in order and you're good to go. Why do you think they want to review POA's ahead of time for approval?

Your seeing a POA just to confirm that it does exist is not necessary. That's been done for you by title. As long as their ID is in order and your state does not require you to see it, then you don't see it.

The only other suggestion I can think of is - don't take any signings involving a POA - eliminates the question of "yea or nay".

JMO

Reply by NVLSlady/VA on 8/29/13 7:03pm
Msg #482554

There ARE no laws governing "signing agents"

<<"for the most part - there IS no state regulation">>

YES! That is what I was saying earlier. So the only thing we have *is* our state manual/handbook. I have NOT found anything in ours which "clearly states . . . just take the signer's word for it;" otherwise I'd have dropped this discussion like hot wax

I was hoping a fellow notary in VA had found it ?????

Reply by JanetK_CA on 9/1/13 4:33pm
Msg #482874

Re: There ARE no laws governing "signing agents"

I sounds to me like you're getting a little confused about what the role is of a notary public. (I'm going to leave the NSA part out of this because I think it's already been well addressed.) To oversimplify, a notarized document should be able to assure the document recipient that the signature hasn't been forged. So the notary signature and stamp confirms that the signer was properly identified and that they acknowledged that they signed the document.

We never get involved in the content of the document or it's authenticity or legality, as that would be UPL. Think about it... Are there any other documents for which you've notarized someone's signature where you concern yourself with whether they've filled the form out correctly or if the terms of the contract are accurate or fair or... whatever? ***How the document ends up being used is completely a separate issue from the notarization.***

Our issue, again just with our notary hat on, is identifying the signer. Using the example given above, your notarization ensures that, for example, Mary Jones doesn't sign Bob Jones' name on a document without his knowledge, trying to pull something over on him. Instead, the person in front of you, whose ID you have examined, claims openly that he is the person who has been given authority by Bob Jones himself to sign Bob's name, and in doing so, will also be signing his own name next to it, something like this:

"Joe Smith as AIF for Bob Jones"

Joe Smith presented his ID, and it is his name only that goes into your notary certificate - at least in most states, unless you're required to include capacity of the signer in your certificates. It's all very above board and very clear to whomever ends up with the document. You've done your job by identifying Joe Smith (and hopefully having him sign a journal). So when the document recipient receives the notarized doc, it's clear who has signed what. It's then up to them to determine if Joe Smith does indeed have the authority to sign for Bob Jones and if they will then accept that document.

You've done your job and identified the signer. What I would never do as a notary, BTW, is notarize a document where a person signs someone else's name without signing their own name, too. (E.g. Bob Jones by Joe Smith, his AIF.) IMO, that's where our responsibilities end.