Posted by Jules on 3/4/13 9:16pm
Msg #459225

Notarizing incomplete documents, need other notaries help

Per the California Secretary of State, a notary may not notarize an incomplete document. Most Deeds of Trust I see in loan packages say "Exhibit A attached" and it isn't there. That makes it incomplete. I won't notarize without it, but am constantly told "Title will attach it when it comes back" or "all other notaries notarize without it, why won't you?"

I usually end up getting the legal description from the vesting deed from one of my local title companies, but I shouldn't have to do this.

This is an appeal to California notaries to please refuse to notarize a Deed of Trust that doesn't have the Exhibit A sent with it. If we all band together to comply with the law, the Title Companies will stop trying to make us break the law because it is time consuming for them to get the legal description from the Preliminary Title report to us.

Reply by Linda_H/FL on 3/4/13 9:27pm
Msg #459227

"I usually end up getting the legal description from the vesting deed from one of my local title companies, but I shouldn't have to do this"

No you shouldn't have to do this..and you don't have to - and you should not be doing it. That is way beyond your pay grade and way outside the coverage of your E&O.

JMO

Reply by Marian_in_CA on 3/4/13 9:34pm
Msg #459228

Actually... IMO, it is perfectly okay to do this unless the signer somehow objects. Here's why:

"Exhibit A" is not actually part of the document. It's an attachment or supplemental information applied after the signature being notarized.

The Deed of Trust is done with an acknowledgment, NOT a jurat. Therefore, the signers are not swearing to the contents of the document. They are acknowledging signing said document. There's a big difference. And *our* penalty of perjury oath when we sign them has NOTHING to do with the contents of the document. We're simply swearing the signers acknowledged signing the document and that we've properly identified them.

Also, per the Workbook, there *are* times when it is perfectly okay to notarize documents that are not "complete" -- see page 26:

http://www.sos.ca.gov/business/notary/forms/notary-education-sample-workbook-2013.pdf

"A notary public cannot take an acknowledgment of an instrument (document) that is
incomplete. The notary public should visually scan the document and if the document appears to
be incomplete, the notary public must refuse to take the acknowledgment until the document is
completed However, in determining whether the document is complete, the notary public
should ignore information that is intended to be added later such as information to be placed on
the document by a county clerk or recorder or for additional signers whose signatures are not
being notarized by the notary public. (California Government Code section 8205(a)(2).)"


*IF* the exhibit were part of the document, or a page in the document that physically preceded the signature page, it would be different. It doesn't, though... it comes afterward and isn't part of the document being signed.

Reply by Sha/CA on 3/4/13 10:09pm
Msg #459232

I agree, Marian. Thank you for your references. That helps n/m

Reply by Marian_in_CA on 3/4/13 11:19pm
Msg #459235

Re: I agree, Marian. Thank you for your references. That helps

It's a little dicey, though, because it may depend on one's interpretations of "complete" and what the specific wording is in the document regarding the exhibit.

FOr me... I don't get too involved with it. Why? Because in CA we are told that we are NOT responsible for the content of the document. We're only supposed to give the document a visual scan to be sure there aren't any blanks and such. We're not supposed to read and interpret the entire document.

It's been my experience that the legal description is attached later on as part of the normal closing process. Rarely does it come along with the loan documents. One in a while I see it tossed in there as an afterthought, but rarely. And, in reading the workbook, we're told to use our discretion here... if we are familiar enough with a document to know that something is meant to be added later on... then no big deal.

There are some who don't consider it complete with out... and that's fine I guess. I just think that's going way beyond the scope of our job.

Reply by Shelly_FL on 3/5/13 6:51am
Msg #459246

Re: I agree, Marian. Thank you for your references. That helps

One time I "scanned" over a legal description for a FL property and noticed that it was located in PA!

Reply by Yoli/CA on 3/5/13 8:36am
Msg #459257

Re: I agree that contents of doc are not our concern.

At least in California, that is. However, (and here I'm playing devil's advocate) if in regards to legal description, whether it's Exhibit A or Attachment A, what if the docs says " ... incorporated herein by reference thereto ....?" I'm not an attorney and blah, blah, blah, blah, blah. But wouldn't that terminology cover it either way? Meaning if Exhibit A follows the actual DOT, it's part and parcel to that doc. Also meaning that if the Exhibit A is not there, it still part and parcel and will be added later on.

Any attorneys out there willing to pipe in?

Insofar as the incompleteness of a doc, my belief is that refers to any blanks we see at a quick scan. We are not required to read each doc word by word. Not our scope.

JMHO

Reply by Teresa/FL on 3/5/13 1:38am
Msg #459244

There is an older post from PAW that addresses this

Msg #36313

I am of the same opinion as you and always request the "Exhibit A" if it is referenced instead of the legal description being filled in on the Mortgage or any other document showing a referenced attachment.

More of the companies I deal with are choosing to include it so I don't have to ask for it as often as I have in the past. When I do request it, many times I am sent the entire preliminary title report which includes the Exhibit A.

Reply by Shelly_FL on 3/5/13 7:03am
Msg #459247

If title does not respond to my request for the legal

I explain the predicament to the borrower, offer them a blank sheet of paper and they decide whether to write in the LD or something else. Some will "fill-in the blank" with a note that it was not provided. I note in my journal as to the borrowers' action. What happens to the document after it leaves my hands is out of my control.

Reply by Larry/IL on 3/5/13 7:52am
Msg #459249

They don't pay enough to be the document content police. Especially on a document that only requires an acknowledgement. As long as there are no blanks, I am not dragging out a signing any longer than it should be.

I see too many NSAs trying to be more than they really are and even crossing the line when it comes to UPL.

Reply by Linda Juenger on 3/5/13 7:59am
Msg #459250

I'm with Larry on this one. If it is included, I show it to them, if it's not, I move on. Not my job to provide it. A few times borrowers have wanted to match tax #'s from their tax bill. I let them do that if there is no legal description.

Granted, there have been a couple times when I show the legal description to them and it is the wrong piece of property they own. I do feel more comfortable when the legal descrip is in the pkg, however not a reason to not sign.

Reply by MW/VA on 3/5/13 9:53am
Msg #459268

I agree with Larry completely. IMO it's not good to get

too literal about things. An example of an incomplete document, IMO, would be a will, POA, etc. with blanks that could be altered after the fact.
From my experience, the legal property description (Exhibit A) is sometimes in the pkg, & sometimes not. I'm aware that the tc's will have to attach it before sending it off for recording. Not my job, and would definitely UPL if I insisted on it being there at the signing. It's not my job, and I don't cross the line into areas that really aren't my concern.

Reply by BossLadyMD on 3/5/13 11:19am
Msg #459286

same here, sometimes its there, sometimes its not

i just continue with the signing

Reply by sigtogo/OR on 3/5/13 1:06pm
Msg #459304

I wouldn't worry about this for a nanosecond.

IMO, Jules, you are making a lot of unnecessary work for yourself. As others have said the legal will be attached before recording.

Reply by Ronnie_WA on 3/5/13 2:56pm
Msg #459326

I applaud your posting. The DOT grants power of sale to the property described in the legal description. You make them acknowledge they sign for the use and purposes in the instrument. The purpose is to grant power of sale to the property described in the legal description. As we real estate professionals are aware, a street address is not a legal description. Now, imagine being on the witness stand confronted by the prosecuting attorney. He/she asks, "Are you an educated Signing Agent and do you offer your services as an educated professional?" Me, "Yes". Attorney, "What part of "see attached Exhibit A didn't you understand?" Me, "Duh, uh, well, uh, duh." LOL

Reply by MW/VA on 3/5/13 5:04pm
Msg #459346

I think we're talking about mainly refi's here, and we don't

practice real estate law.

Reply by Ronnie_WA on 3/5/13 5:19pm
Msg #459350

No, we don't practice real estate law. We do comply with laws pertaining to our profession and, as the original poster correctly states, a DOT with a missing attachment is an incomplete document. The attachment is referred to on the DOT as "incorporated herein by reference" or "attached hereto and made a part hereof". We only need to know how to read. Public servants should know how to read. This really is quite a serious issue, not to be taken lightly. Neither your bond or your E&O will cover you if harm results to the borrower. Example, title company attaches a legal that covers 2 parcels when this loan was intended to cover 1 parcel only. Borrower goes to sell the other unencumbered parcel and loses his sale because he can't get this DOT released from that parcel in time for the sale to go through. This DOT should never have attached his 2nd parcel. He now suffers substantial financial and emotional harm and his attorney is coming after everyone involved. I am now in the firing line if I notarized the original incomplete document. When you have worked in the title and escrow business for many years and seen all the mistakes that take place, you are far more inclined to do things by the book to cover yourself. Have I ever faced off with a prosecuting attorney? You bet! They are merciless. They don't take things like this lightly so we shouldn't either. I will not risk such financial and legal exposure.

Reply by VT_Syrup on 3/5/13 5:51pm
Msg #459356

So, what if it's a survey? (Presumably this would apply to the seller side of a purchase.) If the deed refers to a survey, and it does not state that the plat is already on file with the land record office, would you refuse? (Sure hope the client is ready to pay the parcel company to send a tube with the rolled-up mylar.)

Would you distinguish between a brand-new plat and a 40 year-old plat?

Reply by Ronnie_WA on 3/5/13 5:54pm
Msg #459357

This discussion refers to the legal description exhibit. n/m

Reply by Ronnie_WA on 3/5/13 5:57pm
Msg #459359

In all my years, I have never seen a deed say, "See attached survey incorporated herein by reference." If that happened in my state, then the attorney/LPO must have been drunk!

Reply by VT_Syrup on 3/5/13 7:10pm
Msg #459381

I've never seen the phrase "See attached survey incorporated herein by reference." But the deed for my house says, in part, "...are the same [premises] as those designated as Parcel B on a survey plat entitled 'Portion of Property of P. A. A. to be conveyed to R. T. W. and E. W., husband and wife', dated July 18, 1970 and revised September 23, 1971." There is also a description in metes and bounds in the deed. So the interpretation of my deed could be influenced by the survey plat, if anyone ever finds it. It seems the notary would be called to split hairs about how exactly the plat is mentioned in the deed, which is probably beyond the legal skill level that is expected, or perhaps even allowed, for notaries who are not attorneys.

Reply by Ronnie_WA on 3/5/13 7:36pm
Msg #459389

You don't have to worry about that. Since it doesn't say it is "attached", then you are not dealing with a notary issue of an incomplete document. Your instance has nothing to do with a notarial act whatsoever. Our sole responsibility in this discussion is to ensure, to the best of our ability, that we have presented the "completed" document for their review, approval signature and verbal acknowledgment