Posted by Vicky58 on 1/3/13 11:32pm
Msg #448779

Knowing the borrower isn't telling the truth

I am scheduled to do a signing tomorrow, and just received the docs stating this is the borrwers primary residence. The borrower has already told me she lives in a different town, what would you do with this one?

Reply by HisHughness on 1/4/13 12:55am
Msg #448783

Leave it alone

The definition of "domicile" under the law is quite flexible; the number of service members who are living in the cramped confines of a Post Office box back in the U.S. is quite large. You probably do not know enough to determine whether the borrower is lying. She could be living temporarily -- and that can be years -- elsewhere to care of her terminally ill aunt, or because she wants her terminally ill poodle to have a backyard as it slowly wheezes out its last days, or because she is trying to qualify to enter the Miss Quizzadiddly County Dairy Queen Contest.

Reply by Karla/OR on 1/4/13 1:56am
Msg #448784

Re: Leave it alone

I always try and guess what I would do under the circumstance presented by posters here on Not/Rot. In this case I would have gone back to the SS or lender to ask what to do - but THEN I wondered if I would be sharing info the BO would not have wanted me to.

Your answer, Hugh, made more sense than mine. Like (button) for your response and humor!!

Thanks.

Reply by Linda_H/FL on 1/4/13 5:15am
Msg #448790

So how do you handle the Occupancy Affidavit..

and the jurat that usually accompanies it. OP already has information that they don't live there.

Reply by BrendaTx on 1/4/13 6:44am
Msg #448795

15 years ago my husband's primary

residence was hard to pin down. We both had children; never lived together before we married.

He owned his home in Town A.
I owned a home in Town B.
He got a job in another town a week before we married. He rented an apartment in Town C.
(I will skip Town D for simplicity's sake.)

My primary home never changed. It was B, but my name was also on the lease in C.

There was a window in which he had furniture in A and C; his clothes were in B and C; and, his children's mother decided that the children should live with us; they lived with me in B while their dad worked out of town and slept during the week in C. His job required him to live in C. My oldest step-son moved into A so that it would not be vacant and so that it would be occupied by the mortgagee.

I suppose that even though my husband never moved into B, if we had wanted to refinance it, we could have called B his primary home because his children and I lived there and he came there on weekends.

His primary residence was kind of fluid that year; mine was always in B where our children were in school.

Reply by BrendaTx on 1/4/13 6:49am
Msg #448797

Fortunately, we never had an O.A. to complete. n/m

Reply by desktopfull on 1/4/13 1:18pm
Msg #448858

Re: So how do you handle the Occupancy Affidavit..

Linda I had one the other day and they had 2 homes, they homesteaded the one in FL and lived in MI 5 months out of the year. The FL home was considered their primary residence. They don't rent either home while occupying the other either. Lender and Underwriter were satisfied with that explanation for occupancy too.

Reply by BobbiCT on 1/4/13 6:56am
Msg #448798

Agree with Hugh ...

For estate planning and multiple tax purposes, "domicile," "residence," "principal residence," and "how many days an individual is at a place for X number of consecutive days all play into "where do you live" differently.

Perfect example, married couple borrowers who each have a primary residential home in a different state, but they both live together. It is a tax decision that works. I've seen tons of loans underwritten on the basis of "... will be living at the mortgaged premises within the next 90 days."

Reply by Linda_H/FL on 1/4/13 7:37am
Msg #448799

Bobbie and Brenda..and Hugh

In the case of a purchase transaction, and in some other unique instances, yes.. (as for staying elsewhere temporarily I won't even go there as I don't believe that was the intent of the OP and to me that response is just silly) they will occupy the property within the next 90 (or whatever) days..

But - the borrower has made a statement to you that they do not live there - isn't there a conflict notarizing a statement to the contrary when they've admitted to the notary that it's not true?

That's what I'm getting at - sometimes borrowers just need to hush - the less we know, sometimes, the better.

As I recall, there's something in notary laws about not notarizing a signature when the documents contain knowingly false statements. "I occupy the property as my primary residence" is a knowingly false statement when the signer has just stated "I don't live there".. and IMO therein lies the problem.

JMHO

Reply by HisHughness on 1/4/13 8:22am
Msg #448802

Okay, Linda

The original post did not indicate whether the property being refinanced was occupied by other than the borrower; it did not indicate whether it was rental property, or whether a family member was living there, whether it was being used to store unsold Yugos and returned uncooperative Chia pets, or any other circumstances of its occupancy.

Generally -- and this is quite general -- your domicile is where you live and/or intend to make your permanent residence. That's quite different from what residence you occupy. Thus, a service member who has not lived in Speed Trap, GA, for three decades can claim it as his domicile for all 30 years, and can vote there.

If it is a civilian, and he is TDY elsewhere for an indeterminate period, unless the residence in question has been converted in some manner to a use that precludes the borrower from occupying it during the next 90 days, he can sign an occupancy affidavit. He can even sign it if he only <plans> to occupy it, but does not; plans change, and he hasn't necessarily sworn falsely.

The whole point of my post is that the definition of one's residence is so fluid, so flexible, that absent clear and compelling evidence to the contrary, the notary should not be peering behind the averments of a borrower. There was nothing in the original polst that required the borrower to report to the title company.

Is that unsilly enough for you?

Reply by BobbiCT on 1/4/13 8:47am
Msg #448807

He said. She said.

Just because the borrower makes a "stupid" statement doesn't mean its true. A totally empty house, no furniture & no appliances, and I'd wonder about "living there."

I make an independent decision not to notarize the title affidavit because "the borrower said." Borrower loses loan and rate; lender, title company and signing service all blame me.

Borrower states UNDER OATH to an attorney, "I never said that." What's my proof that is was said to me when EVERYONE else connected with the deal states I am wrong? I will ask the borrower about that statement and have him/her READ the Affidavit ... many signers change their mind and make a new "statement" to me; i.e., the "oh, that's not what I meant." This is one of those "I'd rather notarize after the person reads the documents and makes a new 'clarification' statement" than get sued for not notarizing that ONE document and causing a loan deal to fail on a one-sentence comment during the signing. If I had an attorney hat on and represented the lender, it would be different.

Reply by jba/fl on 1/4/13 9:44am
Msg #448817

Wasn't at signing - only confirmation call.

Jumping the gun IMHO.

Reply by BrendaTx on 1/4/13 9:50am
Msg #448820

Very good point.

Didn't think of that. Would it be wrong to call the hiring entity and ask the LO to call the borrower to clarify?

Reply by Art_PA on 1/4/13 8:05am
Msg #448800

Those who are concerned about this should ask their E&O carrier about how to proceed if such a situation arises.

Reply by BossLadyMD on 1/4/13 9:51am
Msg #448821

I must say something, Maryland requires Occupancy Affidavit

I would not be able to do the Occupancy Affidavit, which is required in Maryland. Borrower is swearing that they will occupy the home as their primary residence. Sorry, but I would have to speak up.

Reply by bagger on 1/4/13 10:22am
Msg #448825

However, is it your position to determine if a BO

commits perjury?

Reply by John Tennant on 1/4/13 10:57am
Msg #448830

I agree with bagger.

It is not my responsibility to determine if the borrower is committing perjury. It is my responsibility to id the borrower, notarize the document that the borrower signs. If the borrower commits perjury by lying on the document and they get caught I have performed my notary act as required by my state. We are not the "perjury" police.

Reply by CarolF/NC on 1/4/13 11:48am
Msg #448832

I'd have a tough time with that one, if in fact, it will not qualify as the primary residence, but seems you don't have all the information now. In most states you cannot knowingly assist in the commission of a false statement, which is what you would be doing if you notarize the docs.

Reply by sueharke on 1/4/13 11:57am
Msg #448835

Unless I had good reason to use the information that says someone is lying, I have a selective memory and forget many things. When doing a tax return and someone lies to me, I will not put that information in a tax return. If the potential tax client is unhappy with that response, I tell them to find another tax preparer as I will not put my license on the line to file a fraudulent tax return.

What do I consider important or material to question - unreported income or cash income of any amount. If a client does not want it included, do not tell me about it or I have to put the income in the tax return. Overstating a deduction and telling me about all the discounts and coupons for the net cost of their charitable deduction - if the net price is zero, so is the charitable deduction.

As a notary, I consider fake ID a reason to question a signing and whether I will use the information someone intentionally or accidently provides (as in the use of credible witness situations).

Reply by jojo_MN on 1/4/13 2:37pm
Msg #448886

I would speak with an attorney.

There is a lot of mortgage fraud right now. Would you be an accessory if you notarized a statement they were swearing to with full knowledge that they were not telling the truth? It is hard to say. I know some lenders charge higher interest rates if it is not their primary residence. Some states give tax breaks if it is a primary residence, but not a secondary. There are too many variables to answer without legal advice.

It would be interesting to find out if we, as notaries, could be held liable as an accessory to fraud. Good question.

Reply by Pam/NM on 1/4/13 2:59pm
Msg #448893

I had a sticky situation about a year ago. I did an application signing for the widow of a veteran who was using her dead husband's VA benefits for the loan. She introduced me to her husband. When she got to the marital status question, she said it was 'complicated' and that they were married, but she needed to use the VA benefits, for which she was not eligible, having been remarried. It was at the tail-end of the signing and I finished up and advised her to tell her l/o about the situation to make sure the loan would still work for her situation. My hiring party (a title co) always gives me instructions to call both them and the l/o upon completion of any signing to let them know how things went and if there were any issues. I informed both title and l/o of the situation and they said, "ok, thanks." Several weeks went by and I got the assignment to do the closing. Sure enough, 1003 and everything in pkg indicated borrower was a single woman, DOT vested as such. I remembered the situation and contacted title again, just to make sure. They were appalled after they contacted the borrower and found out she WAS married. The loan was dead, but at least it got stopped before any further damage could happen. I feel like as a signing agent, we are the eyes and ears in the room that l/o's and title can't be....JMHO

Reply by MikeC/TX on 1/4/13 8:37pm
Msg #448966

The fact that she lives in a different town doesn't mean that this property is not her primary legal residence.

It's not up to you, as the notary, to determine whether she's lying - that is not in your job description. All these folks who are saying they wouldn't notarize the affidavit are over thinking the problem. And as far as contacting the TC or lender is concerned - 99.9% of the time, they already know what the situation is.

Absent any solid evidence to the contrary, if she tells you something that might suggest it could be a lie you have no right or responsibility to investigate it. Your notarization simply says that this individual took an oath as to the truth of the statement - nothing more. As a notary, you are neither confirming nor denying that truth - all you're doing is attesting to the fact that this person claimed it to be true.

If it eventually turns out that she was lying under oath, it's not your problem.